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State v. Horne-Carey

Superior Court of Maine, Piscataquis
Aug 12, 2021
No. PISDC-CR-2020-164 (Me. Super. Aug. 12, 2021)

Opinion

PISDC-CR-2020-164

08-12-2021

STATE OF MAINE v. JILL HORNE-CAREY


ORDER ON DEFENDANT'S MOTION TO SUPPRESS2

Kevin L, Stitham Maine Judge UCD

The Defendant's 3/10/21 motion to suppress was heard on May 17, 2021. The State was represented by ADA Katherine Campbell, The Defendant was not present, but was represented by Zachary Smith, Esq. The Court took the motion under advisement.

It is the State that has the burden of proof in a hearing on a motion to suppress. Just as it would be unwise for the State to simply sit back and not call any witness to the stand, it turns out that it is also unwise for the State to call two witnesses to the stand, yet have the hearing come to a close with far more questions than answers. When this hearing drew to a close, a confused muddle remained - created by the actual testimony of the two witnesses the State called (Chief Deputy Lyford & Deputy Sheriff Cook) and the complete absence of any testimony from two witnesses that the State chose not to call (Sergeant Gould & Sheriff Young),

From this point on these four will be referred to as Lyford, Cook, Gould, and Young.

On the early afternoon of June 18, 2020, Lyford driving west on Route 15, noticed a parked vehicle pointed east on the shoulder, completely off of the traveled portion of the opposite lane. There was a single person "humped over." There was no elaboration as to what "humped over" meant. As it was broad daylight, it remains a mystery as to how Lyford reached his belief that this parked vehicle was running as he drove by headed west. Shortly thereafter Lyford turned around and headed east to perform a "wellness check." He then parked his cruiser behind her parked car. After he refreshed his memory, Lyford testified that he saw the brake lights turn off and on, when he was behind the vehicle. (He never saw the Defendant operate the vehicle.) Lyford came up to the vehicle and began asking the Defendant questions. (Having known the Defendant for approximately 25 years, Lyford noticed she seemed to be acting differently than in his previous interactions with her and that "she was having a hard time staying awake", and "nodding off."

Lyford then asked the Defendant if she was all right. She replied that she had pulled over because she was very tired. He then asked her to get out of her vehicle, "to get some more observations." She got out. Now with both of them outside and standing, he continued talking to her. Lyford noted that she still was having trouble staying awake, After just a few minutes outside Lyford thought the Defendant was under the influence of drugs. So he called for Cook, a Drug Recognition Expert (DRE) to come to the scene. Lyford continued to talk to the Defendant outside, he asked if she would consent to a search of her vehicle for drugs - she refused consent.

Another aspect of Lyford's testimony that was not explored further was exactly how this Defendant after Lyford called Cook, wound up in the cruiser awaiting Cook's arrival. The ADA rather inartfully asked Lyford, "who initiated the movement into the cruiser?" Presumably understanding the question as phrased, Lyford answered "I believe she did." While one can wonder if this response is the equivalent of a response "she did", or simply hedging, the Court is unable to conclude exactly how and why Lyford and a standing Defendant who was presumably still "very lethargic ... nodding off ., . having a hard time staying awake ... very slow" wound up in the cruiser.

With both of them in his cruiser, Lyford continued to question the Defendant as to drug use and in addition there were in his words, "all kinds of conversations." Again the Court is left to wonder what exactly "all lands of conversations" even means - what topics? ... were there officer directed conversations? ... or continued questioning as to drugs?

Then another officer arrives on the scene, Gould. The testimony at this hearing is murky indeed as to Gould's involvement at the scene. One learns that he arrived perhaps as early as 5 minutes after Lyford radioed for Cook, and that he participated in the Defendant's vehicle search with Lyford. One is left completely in the dark as to why he was there, how long he was at the scene, all of what he did at the scene, what did he say, who did he talk to ... Nonetheless it is obvious that the Defendant became aware that what was once just one officer at the scene, are now two officers at the scene. Then Cook arrives on the scene (about 20 minutes after he was told to come to the scene). It is now obvious to the Defendant that she is now the focus of three officers. We learn that at some point Young himself comes to the scene. As with Gould, the Court is left to wonder when exactly he came to the scene, why he came, what did he do, who did he talk to, when did he leave, .. And so this Defendant managed to be the immediate focus of four law enforcement officers - not just deputy sheriffs, but also the Sergeant, the Chief Deputy, and the Sheriff himself. What started as a simple "wellness check" with one officer has blown up into something far more foreboding with as many as 4 officers and four vehicles present at the same time.

When Cook arrived at the scene he spoke to Lyford, in Cook's words "he informed me of what he had and gave me a brief rundown of what we were dealing with." Lyford asked Cook to perform standard filed sobriety tests. Cook told Lyford that they shouldn't even bother to test as he "didn't feel we had a great case or great evidence for him to do it." He explained to Lyford, "That we have trouble with these cases because of there was no operation at that point." Then Chief Lyford simply ordered Cook to perform the tests.

One is left to wonder exactly what Lyford told Cook in his conversation when Cook first arrived at the scene, It would of course be concerning to the extent it differed (if at all) from Lyford's testimony. But if was the same, then it is of note that while Lyford thought such was sufficient to proceed further, Cook (as the DRE) thought it was not sufficient to proceed further. One of the striking contrasts between Lyford's testimony and that of Cook is:

• Chief Lyford speaks of the Defendant having a hard time staying awake, and nodding off not only when he was speaking to her while she was in her car, but also when they were both standing up outside (though there was no similar testimony as to when they were both in his cruiser).
• In contrast Officer Cook makes absolutely no mention of observing the Defendant having a hard lime staying awake, and nodding off in any of his interactions with her on the scene, while he transported her to D-F, or while they were at the D-F PD. (Cook does note that the Defendant told him: she was tired, she was having anxiety issues, and she didn't feel right.)

Deputy Cook then questioned the Defendant and performed the HGN, lack of convergence, and the modified balance test

Deputy Cook testified he modified the balance test because the Defendant informed him she was having a problem with her foot and ankle.

It would appear that the Defendant's vehicle was searched while Cook was with the Defendant, prior to her being arrested. Although in keeping with the murkiness of the testimonies, Officer Cook first testified that he didn't notice if the other officers were searching the vehicle while he was conducting the field tests, then he testified that when he spoke to Lyford after he did the tests and before he arrested the Defendant, that the search was then going on. Later Cook conceded that he wasn't even sure when the search took place. Note Lyford first testified that when Cook just started talking to the Defendant, "We did the search." But then he testified that the actual arrest of the Defendant and the search, "was kind of at the same time." Finally Lyford conceded that the search took place before the arrest. There was no search warrant. Lyford further testified there were no exigent circumstances other than they were on the side of the road.

After his questioning and field testing the Defendant, Cook concluded there was "a impairment issue," He told Lyford that there was an impairment issue and she would need to go in for an intoxilizer test. Lyford told Cook that his intoxilizer certification has expired, and this was his [Cook's] case. Then Cook arrested the Defendant for OUI, under the direction of Lyford. Cook then transported the Defendant to the Dover Police Department and administered an intoxilyzer breath test, which showed zero signs of alcohol. Then Cook read the Defendant her Miranda warnings, and conducted the drug evaluation. Cook asked the Defendant to submit to a urine test, she refused, Even though she was already under arrest for OUI, Cook then arrested her again "because she refused to submit to urine test."

In this case there was no stop of this parked car. Lyford approached the Defendant's car, to conduct a wellness/safety check. There was sufficient cause for Lyford to approach the vehicle for a safety or wellness check.

One critical question in the case at hand is, Was the Defendant in custody before she was arrested for OUI by Cook? And if so, was she questioned without her Miranda rights being read to her? The answer to both questions is yes.

Piscataquis County is Maine's least populated county -it is the only wilderness county east of the Mississippi. No doubt the number of our law enforcement officers in this county is proportional to the number of our residents. This Defendant is a long term resident of this county. Having a safety/wellness check by one officer and one cruiser, expand into a Drug/OUI investigation with 3 more vehicles and 3 more officers (the highest ranking officers of the Piscataquis County Sheriffs Department) effectively placed this Defendant in custody, somewhere on the continuum of the ever-increasing number of vehicles and the ever increasing number of officers. It is the State that has the burden of proof as to this motion, a more thorough questioning of the two actual witnesses would have been illuminating as would have calling Gould and Young to the stand. As it is the State has left far too many questions unanswered. It may well be that the Defendant was in custody while standing outside when Lyford called for DRE Cook to come to the scene. Or minutes later when Lyford and the Defendant were in his cruiser. Or when Sgt. Gould arrived, or earlier if Young arrived before Cook. Then again not knowing when Young arrived, if he arrived before Lyford called for Cook, maybe the Defendant was in custody before Lyford called Cook. But she certainly was in custody when Cook joined Gould and Lyford at the scene (if not before, if Young arrived before Cook ... or earlier if Young came before Gould). The murkiness of the testimony at this hearing forces the Court to conclude that there were many possible points where this Defendant first came into custody, and that she was being interrogated afterwards without having been read her Miranda rights, The State chose to conclude its case with so many very plausible points as to when the Defendant came into custody.

Considering the totality of the testimony of the State's only two witnesses, there remains a confused muddle -woefully short of meeting the State's burden of proof as to the issues raised by the Defendants motion. It is the functional equivalent of the State resting without calling a single witness, A hearing on a motion to suppress should not be the legal equivalent of a game of Scrabble gone awry- The rules of Scrabble require a player to thoughtfully use letter tiles in her tile rack, in conjunction with tiles and spaces on the board to spell out a word(s). The player cannot simply scatter random letter tiles all over the board, and then leave it to die other players to see if they can assemble sufficient tiles to spell out a word. By the end of this hearing the State wound up leaving a jumbled mass of testimony and unanswered questions and concerns. After careful consideration of the evidence, the Court cannot find that the State has met its burden of proof. There are far too many more questions than answers, Accordingly the Defendant is granted all of the relief sought in her 3/10/21 motion to suppress.


Summaries of

State v. Horne-Carey

Superior Court of Maine, Piscataquis
Aug 12, 2021
No. PISDC-CR-2020-164 (Me. Super. Aug. 12, 2021)
Case details for

State v. Horne-Carey

Case Details

Full title:STATE OF MAINE v. JILL HORNE-CAREY

Court:Superior Court of Maine, Piscataquis

Date published: Aug 12, 2021

Citations

No. PISDC-CR-2020-164 (Me. Super. Aug. 12, 2021)