Opinion
NEWCD-CR-20-20384
01-03-2023
STATE OF MAINE, Plaintiff v. JENNIFER CLUKEY, Defendant
ORDER ON DEFENDANT'S MOTION TO SUPPRESS
Hon. Jennifer Nofsinger Judge
This matter comes before the Court on the Defendant's Motion to Suppress. The Court held an evidentiary hearing on December 16, 2022, at which the Defendant appeared with counsel, Seth Harrow, Esq. The State was represented by ADA Chris Smith, Esq. Officer Benjamin Kolko testified, and the Court received WatchGuard footage of the traffic stop in evidence.
The Defendant has been charged with Operating Under the Influence, 29-A M.R.S. §2411(1-A)(B)(1). She contends that reasonable articulable suspicion did not exist for the traffic stop that led to her arrest, nor did probable cause exist for her arrest. On these issues, the Court finds as follows:
Facts:
I. Traffic Stop
Officer Benjamin Kolko was on duty with the Dexter Police Department ("DPD") on August 20, 2020, at approximately 10 p.m. He had been advised by his superior, Sgt. Morin, that a vehicle was observed with its lights on at 33 Water St. in Dexter. This location was of concern to the DPD, as there had been a large amount of traffic at the residence, suggestive of drug activity.
Having received the tip from Sgt. Morin, Officer Kolko was sitting in his cruiser in a location where he was able to observe the intersection of Water and Mill Streets. He saw headlights pass through the intersection, without stopping. As he knew that there was a stop sign at the intersection, he concluded that the operator of the vehicle failed to stop as directed. Officer Kolko left his location, visually identified the vehicle that had failed to stop on Water Street, and concluded the vehicle passed through a second intersection without stopping as directed. He then turned on his blue lights.
Defendant Clukey was operating the vehicle and promptly pulled into the driveway of a residence. Of note, Officer Kolko was familiar with Defendant Clukey, having had interactions with her in the past. He was aware that she had a child protective case open with DHHS, that she was not allowed to return to the residence where her children were living, and that there were concerns about her alleged drug use. Officer Kolko had received this information from a colleague of his at the DPD. He did not recall which colleague shared this information and expressly denied receiving the information from Officer Dean, who happened to be Defendant Clukey's father-in-law at the time of Defendant Clukey's arrest. Of particular concern to the Court is the fact that whoever was discussing the DHHS case with the members of the DPD went beyond discussing information that the DPD might arguably need to know (such as the fact that Defendant Clukey was prohibited from being at a certain residence) and shared the results of Defendant Clukey's recent drug tests with members of the DPD, including Officer Kolko.
The residence at which Defendant Clukey stopped on August 20, 2020, happened to be the residence from which Officer Kolko believed Defendant Clukey was barred. When Officer Kolko approached Defendant Clukey, he explained that he stopped her because she "blew through" a couple of stop signs. He asked Defendant Clukey for her paperwork, which she was able to produce without difficulty. While obtaining the paperwork, Defendant Clukey commented that the police had been at Dexter Variety earlier that day, "checking her out," and that the stop felt like harassment.
At that point, Officer Kolko explained that he knew that Defendant Clukey had recently failed a drug test and that she had just been at "Scott's," which was a house of concern. In response, Defendant Clukey repeatedly asked for a urine test so that she could prove she was clean. During this entire exchange, Defendant Clukey's speech was clear, and she was not slurring. She was also speaking sensibly and appeared to understand everything Officer Kolko was saying. Officer Kolko smelled no alcohol, and although he concluded her speech was "fast," the Court has reviewed the video of the traffic stop several times and finds nothing abnormal about Defendant Clukey's speech.
Based only on his perception that Defendant Clukey was speaking "fast," his knowledge that she had been at 33 Water St., his knowledge that she was not allowed at the house that she had pulled into, and his observation that her eyes were "glassy," Officer Kolko asked Defendant Clukey to step out of the vehicle to perform field sobriety tests. Notably, the area in which Defendant Clukey had parked was tight and full of vegetation. She exited her vehicle without incident, navigated the area smoothly, and did not stumble or move in a compromised manner.
II. Field Sobriety Tests and Arrest
The first field sobriety test (FST) that Officer Kolko conducted was the horizontal gaze nystagmus (HGN) test. He found no clues of impairment after administering this test.
Next, Officer Kolko administered the "walk and turn" test. He was looking for up to eight clues of impairment with this test. When Officer Kolko explained the test to Defendant Clukey, he told her to take "nine heel toe steps out, make a turn, and then take nine heel toe steps back." He demonstrated the steps, told her to make a "series of small turns with your outside foot in a semicircle," and then walk back until she reached nine steps. He also told her that once she started the test, she should "continue it until you feel that you have finished."
Officer Kolko found three clues of impairment on this test. First, he concluded that Defendant Clukey did not complete her turn by using a series of small steps. Second, he found that she did not have her heel directly on her toe on several of the steps. Third, he found that on the way back, Defendant Clukey completed ten steps instead of nine.
The Court has reviewed the video of this test several times. First, although Defendant Clukey completed a swivel turn in one motion instead of using several small steps, she did so without losing her balance and turned in a fluid, smooth movement. Second, if her heel was not directly in front of her toes on some of the steps, it was not far from it. Her knees appeared to be directly in front of each other on each step, even if her feet could not always be visualized on camera. This suggests that her legs were not very far apart. She did not lose her balance on the steps, even though it was an awkward movement. Finally, when she got to "nine" on the way back, she paused, suggesting that she knew the test was complete. Notably, Officer Kolko did not instruct her how to end the test, instead instructing her to continue it until she felt she had finished. In summary, the Court finds that it was not objectively reasonable to conclude that Defendant Clukey demonstrated signs of impairment on this test.
Officer Kolko administered a third test, called the "one leg stand." According to his instructions for this test, Defendant Clukey was to hold her hands by her side, raise "either leg" such that her foot was approximately six inches off the ground, point her toe, and hold the position, counting out loud until he told her to stop.
Defendant Clukey tried to complete this test by raising her right leg. She could not hold her leg up for very long, getting to about 5 seconds. She then tried with her left leg and was able to hold the position for 14 seconds. In the end, Officer Kolko found two signs of impairment on this test, concluding that (1) Defendant Clukey was unable to complete the test on one side and (2) she had to use her hands for balance.
First, Officer Kolko told Defendant Clukey she could use whichever leg she preferred. Failing to hold her balance on one side but being able to hold it on the other is no different than if she had passed the test by using her successful side to start. In other words, the test does not require that the person pass on both sides. If Defendant Clukey had passed by using her left leg to start, no one would ever know that she had poor balance on her right side.
Second, Defendant Clukey did not use her hands or arms for balance while completing the test. Officer Kolko is incorrect on this point. Although Defendant Clukey raised her arms briefly while getting into position, she kept her hands by her side for the entire 14 seconds her left leg was raised. Accordingly, the Court finds that it was not objectively reasonable to conclude that Defendant Clukey demonstrated signs of impairment on this test, either.
The HGN test, the walk and turn test, and the one leg stand test are the three FSTs that are customarily performed when an officer has a reasonable articulable suspicion of impairment. Officer Kolko chose to administer two additional tests. The Court concludes that the likely reason for his choosing to do so was that he did not find enough evidence of impairment on the basis of the first three tests alone to make an arrest.
The fourth FST that Officer Kolko administered was the Romberg test. For this test, Officer Kolko instructed Defendant Clukey to place her feet together, hold her hands by her side, close her eyes, tilt her head back, and "imagine without counting out loud 30 seconds." Once she reached 30 seconds, Defendant Clukey was supposed to indicate she was done.
Officer Kolko found three clues of impairment when Defendant Clukey completed this test. First, he observed swaying. Second, he found that she stopped the test at 23 seconds, not 30. Third, he saw eyelid tremors, which he knew to be consistent with marijuana usage.
Again, the Court has watched the video several times and despite paying careful attention, it cannot observe any significant swaying. Defendant Clukey appeared still throughout the test, with infrequent small movements. Further, the Court does not find Officer Kolko's timing credible. The video demonstrates how long it took Defendant Clukey to perform the test and it was not 23 seconds, as Officer Kolko testified. Finally, Officer Kolko took his flashlight and shone it in Defendant Clukey's eyes multiple times during the test. As he acknowledged, this could have been the cause of her eyelid tremors. As such, the Court finds that it was not objectively reasonable to conclude that Defendant Clukey demonstrated signs of impairment on the Romberg test.
The only possible exception is, perhaps, the length of the test, as she did not complete it for exactly 30 seconds. There was no evidence presented at the hearing, however, on how much of a deviation constitutes a sign of impairment rather than normal human error.
Finally, Officer Kolko administered a "finger to nose" test. He instructed Defendant Clukey to touch the tip of her finger to the tip of her nose, using her left hand when he said "left," and her right hand when he said "right." He also instructed her to close her eyes and tilt her head back.
Officer Kolko found two signs of impairment on this test. He observed that on a couple of occasions, Defendant Clukey touched the side of her nose instead of the tip and at one point, she turned her head towards her finger rather than bringing her finger to her nose.
If Defendant Clukey turned her head towards her finger, it is not discernable on the video. Importantly, she is standing directly in front of the camera and there is an unobstructed view of her as she performed the FSTs. Any movement she made of her head was minor. Further, she never hesitated to bring up the correct arm when Officer Kolko called out "left" or "right." Her movements appeared purposeful and controlled. Again, the Court finds that it is not objectively reasonable to conclude that Defendant Clukey demonstrated signs of impairment on this test.
After administering these five FSTs, Officer Kolko walked back to his cruiser and removed his microphone. He then consulted with the other officers on scene, including Sgt. Morin, who was the officer that had previously advised Officer Kolko that a vehicle (which ended up being Defendant Clukey's) was preparing to leave 33 Water St. The Court finds that the other officers on scene could not have had a better view of Defendant Clukey than the view captured by the WatchGuard camera, as they were not seen on the video and thus would have had to have been behind the cruiser or off to the side. After consulting with the other officers on scene, Officer Kolko placed Defendant Clukey under arrest.
Discussion:
I. Traffic Stop
The Fourth Amendment protects citizens from unreasonable intrusions by police officers. State v. Blier, 2017 ME 103, ¶ 8,162 A.3d 829. A police officer may lawfully stop a person only when the officer has an objectively reasonable, articulable suspicion that a crime, a civil violation, or a threat to public safety has occurred, is occurring, or is about to occur. State v. Collier, 2013 ME 44, ¶ 6, 66 A.3d 563; State v. Sylvain, 2003 ME 5, ¶ 11, 814 A.2d 984. "[Reasonable articulable suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence[ ] and need not rise to the level of probable cause[.J The suspicion need only be more than speculation or an unsubstantiated hunch." State v. Lafarge, 2012 ME 65, ¶ 10, 43 A.3d 961 (citations and quotation marks omitted).
At a hearing on a motion to suppress, the State bears the burden of demonstrating that the officer's actions were objectively reasonable under the circumstances. State v. Brown, 675 A.2d 504, 505 (Me. 1996). An investigatory stop is valid when it is "supported by specific and articulable facts which, taken as a whole and together with the rational inferences from those facts, reasonably warrant the police intrusion." State v. Hill, 606 A.2d 793, 795 (Me. 1992) (citations omitted). Suspicion of a civil violation, based on specific and articulable facts, is sufficient. State v. Carsetti, 536 A.2d 1121,1122 (Me. 1988) (partially obstructed plate and expired registration sticker).
Here, Officer Kolko was familiar with the area, knew that there was a stop sign in the area where Defendant Clukey was operating her vehicle, and could observe, by watching her headlights, that Defendant Clukey did not stop at the first intersection of Water and Mill streets. As such, the evidence supports the conclusion that Officer Kolko observed Defendant Clukey's failure to stop at the first intersection.
As mentioned above, the Court has reviewed the video from August 20, 2020, several times. Unless Officer Kolko had a view of the second intersection that was not captured by the video, he could not have seen whether Defendant Clukey stopped at the second stop sign. Her taillights are equally consistent with someone who has just stopped and is pulling away from the intersection as they are with someone who has slowed, but not stopped.
Failing to stop at a stop sign constitutes a civil violation. 29-A M.R.S. § 2057(7). The Court concludes that Officer Kolko was probably looking for a reason to pull Defendant Clukey over that night. Irrespective of his motives, however, Defendant Clukey provided Officer Kolko with a reason to stop her. Thus, the Court finds that objectively reasonable articulable suspicion existed, and the traffic stop was lawful.
II. Field Sobriety Tests and Arrest
As a preliminary matter, the Court questions whether reasonable articulable suspicion existed for the field sobriety tests (FSTs). An officer may undertake field sobriety testing, "like any other investigatory stop,... if at the time . . . the officer has an articulable suspicion, objectively reasonable in light of all the circumstances, that the object of the search has committed or is about to commit a crime." State v. Wood, 662 A.2d 919, 920 (Me. 1995). In general, the only requirement the Law Court has "imposed on the reasonable articulable suspicion standard is that an officer's suspicion be more than mere speculation or an unsubstantiated hunch.1' State v. Porter, 2008 ME 175, ¶ 11,960 A.2d 321, 323.
The Court does not, however, need to reach a conclusion about the justification for the field sobriety tests. Defendant Clukey did not raise the existence of reasonable articulable suspicion for the FSTs as an issue and, in light of the Court's conclusion below, the issue is moot. As discussed below, the Court concludes that probable cause did not exist for Defendant Clukey's arrest.
A person commits the offense of operating under the influence if that person's "mental or physical faculties are impaired, however slightly or to any extent" by intoxicants while operating a vehicle. State v. Gilley, 1998 ME 34, ¶ 11,707 A.2d 79,83. In accordance with this standard, probable cause to arrest for operating under the influence exists when the facts and circumstances "would warrant a prudent and cautious person to believe" that the person's mental or physical faculties are impaired by the use of intoxicants. State v. Forsyth, 2002 ME 75, ¶ 10, 795 A.2d 66, 69-70 (quotation marks omitted); Cilley, 1998 ME 34, ¶ 11,707 A.2d at 83. "Intoxicants" includes not only alcohol, but "drugs other than alcohol." 29-A M.R.S. § 2401(13).
"Although requiring more than mere suspicion, probable cause can be satisfied on less than the quantum of proof necessary to establish a fact by a fair preponderance of the evidence." State v. Flint, 2011 ME 20, ¶ 12,12 A.3d 54. It is an objective standard. Id.
In this case, Officer Kolko observed Defendant Clukey pass through an intersection without stopping at the stop sign. This was evidence of a civil violation, but not necessarily evidence of impairment. It was after 10 p.m. and there was no traffic in the area. As Officer Kolko testified, there was customarily no traffic in that area at that time of night. Given those circumstances, one could only "merely suspect" that Defendant Clukey's failure to stop was due to impairment, rather than a conscious choice.
A reasonable suspicion to support probable cause can exist independent of any evidence of actual impaired driving. See State v. Eastman, 1997 ME 39, ¶ 9, 691 A.2d 179, 182; State v. Wood, 662 A.2d 919, 920-921 (Me. 1995). Here, Officer Kolko also cites Defendant Clukey's "fast speech," the knowledge that she had just been at a house of concern, the knowledge that she had failed a drug test in the recent past, and her glassy eyes as further evidence of potential impairment. The Court, however, is not persuaded. The Court listened to Defendant Clukey's speech, as captured by the video, and finds that it cannot be reasonably or objectively described as "fast." Further, the evidence at the hearing was that the DPD simply suspected that drug activity was occurring at 33 Water St. due to the amount of traffic at that location; there was no evidence to support the conclusion that the DPD knew drugs were being sold there. Moreover, even if Defendant Clukey had purchased drugs at 33 Water St., that does not mean she had used them or had used them within a time frame that would cause impairment. Her presence at 33 Water St. leads to no more than a mere suspicion that she could be impaired.
Nor does Defendant Clukey's prior failure of a drug test mean that she was impaired on August 20, 2020. Although a defendant's criminal history can be used to corroborate reliable information for the purposes of forming a reasonable articulable suspicion, State v. Barclift, 2022 ME 50, ¶ 25, 282 A.3d 607, the Court does not find that third- or fourth-hand information about a defendant's prior drug test results is reliable enough to support a probable cause finding in these circumstances. See State v. Walker, 341 A.2d 700, 704 (Me. 1975) (noting that it is "settled" that "an officer's knowledge of a suspect's prior criminal conduct is not, by itself or in conjunction with slight facts, probable cause for arrest."). This is especially true, given the confidentiality associated with Defendant Clukey's test results and the questionable nature in which Officer Kolko received the information. |
Finally, although glassy eyes may be evidence of impairment, the Court is unaware of any case where glassy eyes, alone, was found to have established probable cause for an arrest.
A driver's performance on FTSs may inform an officer's determination as to whether probable cause exists and supports an arrest for operating under the influence. State v. Little, 468 A.2d 615, 617 (Me. 1983). Here, despite administering two extra FSTs, there is no objectively reasonable basis for concluding that Defendant Clukey was impaired on August 20, 2020. As the Court finds that there is a lack of objective evidence that "would warrant a prudent and cautious person to believe" that Defendant Clukey's mental or physical faculties were impaired by the use of intoxicants on August 20, 2020, it is ORDERED that the Defendant's motion to suppress is GRANTED. This order may be entered on the docket by reference pursuant to M.R. Civ. P. 79.