Opinion
CR-21-015
08-10-2021
STATE OF MAINE v. GUY LANDRY, Defendant
ORDER ON MOTION TO SUPPRESS
By a complaint dated January 14, 2021, the Defendant, Guy Landry (hereafter "Landry") is charged with Criminal OU1, Class D (29-A M.R.S A. §2411(1-A)(A)). Before the court is the Landry's Motion to Suppress, filed June 2, 2021. Hearing on the motion was held August 2, 2021. At hearing, testimony was received from Officer Travis Barnies of the Auburn Police Department. Also admitted into evidence was State Exhibit 1(Ex. I) which is a flash drive containing the video recording of the stop of Landry made by the officer's cruiser camera. The issue raised by Landry is whether Landry was in custody as of the moment he told Landry's wife he would be taking Landry to jail, such that all statements made after that moment should be suppressed due to violaton of his Miranda rights.
At the commencement of the hearing, counsel for Landry indicated also at issue was whether probable cause existed to arrest Landry. But at the conclusion of the hearing, through counsel Landry withdrew his probable cause to arrest challenge.
The majority of the factual findings made herein are from the viewing of the cruiser camera video played during the hearing and several replays of the audio of that recording. (Ex. 1). Please note, the copy of State's Ex. 1 provided to the court contained audio only, and did not contain video. The court's only viewing of the video content was that played during the hearing.
On January 1, 2021 at approximately 5:30 pm Officer Barnies was dispatched to the Fletcher Road in Auburn on a complaint that a vehicle was off the road and in the ditch. Officer Barnies was in full uniform and operating his police cruiser. When he arrived at the location on the Fletcher Road he observed a vehicle that was now on the roadway moving very slowly. Officer Barnies observed the vehicle be driven about 25 to 30 feet at a very slow speed. The emergency blue lights of the cruiser were activated, and Officer Barnies exited his cruiser and approached the driver's window of the vehicle stopped on the side of the road. The vehicle was operated by Landry.
Landry stopped his vehicle at the end of the driveway of a residence on Fletcher Road. As Officer Barnies began to engage Landry, Landry's wife (hereafter "Mrs. Landry") also walked up to the driver's window of Landry's vehicle. Mrs. Landry had walked from their nearby home on 521 Fletcher Road when she saw vehicle headlights stopped on the side of the road. Soon after Officer Barnies arrived on scene, Officer Tripp arrived to assist.
The court understands from the testimony that a third officer also appeared on the scene, but there was no evidence offered abont that officer's role in the investigation.
Officer Barnies asked Landry what was going on, and instructed Landry to put the vehicle in park. The video shows Landry is confused as to where he was, and he mistook for his mother the lady who lived at the residence of the driveway where Landry had stopped his vehicle and who was attemting to exit her driveway. In the initial engagement with Landry, Officer Barnies observed Landry's eyes to be blood shot and speech slurred, and found Landry to be confused. The video clearly establishes Landry was highly intoxicated, confused and slurring his speech.
While still seated in his vehicle, Landry told the officer he had had a bad day, and was over it. The officer asked Landry where he was coming from from, where he had been. Landry had difficulty in responding to the officer's question, then stated again "... had a bad day... all over it... done with drinking... done with everything., been drinking.. .done for the day". Landry's speech was mumbled and slurred. Officer Barnies told Landry he needed him to take some tests, referring to field sobriety tests, and asked Landry to get out of his vehicle. It took coaxing from both Officer Barnies and Mrs. Landry to get Landry to eventually exit his vehicle. Mrs. Landry then moved Landry's vehicle and parked it where it would no longer be blocking the neighbor's driveway.
As Landry exited the vehicle, he again mumbled "..last day..". Officer Barnies asked "Last day what?". Landry responded "last day drinking". The officer directed Landry to the front of his cruiser, where he was in the view of the cruiser camera. As the officer was preparing to instruct Landry on the first field sobriety test, Landry commented that he had gone eight weeks without drinking but had fallen off the wagon.
Over the next few minutes, Officer Barnies explained to Landry the instructions to complete the horizontal gaze nystagmus (HGN) test, including instructing him to not move his head, and to look at and follow the officer's finger with his eyes only. Several attempts were made to perform the test. By that time, Mrs. Landry had returned from moving the vehicle and was also positioned in the view of the cruiser camera. Despite Officer Barnies repeatedly instructing Landry to not move his head, Landry appeared unable to comply, and repeatedly moved his head while looking at Officer Barnie's finger. Landry again commented he had been sober eight weeks and fallen off the wagon. Officer Barnies asked Landry why he had fallen off the wagon today, bnt Landry did not directly respond.
Officer Barnies then discussed with Landry the walk and turn test, and asked Landry if he could do it. Landry asked what would happen if he didn't do it. As best as can be discerned from the video, Officer Barnies then told Officer Tripp, who was standing nearby, to speak with Landry while he went to speak with Landry's wife.
Officer Barnies walked the few steps to where Landry's wife was standing, and asked her for Landry's name and date of birth. They then discussed where Landry had been and his condition. Landry's wife told Officer Barnies that Landry had left their home to go pick up a pizza they had ordered, and he had been gone about 30 minutes. She came down to the road when she saw the vehicle lights stopped on the roadside and not moving. She did not believe Landry had been drinking before he left their home. Officer Barnies responded that he did not think 30 minutes would be enough time for Landry to become that intoxicated. Mrs. Landry also told Officer Barnies that Landry had been sober 8 weeks but had started drinking again at Christmas, and explained the stress this caused the family. Officer Barnies then told Mrs. Landry that he needed to run a few more tests, referring to field sobriety tests, and that he then would "..probably take him down to the jail". Mrs. Landry stated she wanted to get her husband into detox. They discussed that Landry could not be forced to go to detox, and Officer Barnies further stated detox was something they would have to do after Landry was released from jail.
While Officer Barnies was talking with Mrs. Landry, Officer Tripp talked briefly with Landry, There is no audio recording of Officer Tripp's discussion with Landry .The video shows Officer Tripp standing directly in front of Landry, while Officer Barnies and Mrs. Landry are seen talking in the background.
After Officer Barnies was done talking with Mrs. Landry, he returned to Landry and proceeded to attempt to administer two additonal field sobriety tests, the walk and turn and one leg stand. Landry performed poorly on both tests, staggering or losing his balance on multiple occasions and generally not following the instructions given Following the one-leg stand test, Officer Barnies placed Landry under arrest and transported him to the jail where an intoxylyzer test was administered.
The court makes no findings or comments regarding whether or not Officer Barnies administered the field sobriety tests in accordance with standard procedures, as questioned by Landry's counsel.
2. Standard of Review
The law is clear that a Miranda warning is necessary only if a defendant is: (1) in custody; and (2) subject to interrogation. Statements made by a person subjected to custodial interrogation who is not first given Miranda warnings are inadmissible against that person at trial. State v. Nadeau, 2010 ME 71, ¶53, 1 A.3d 445, 464 (internal citations and punctuation omitted) A person, who is not subject for formal arrest, may be in custody if a reasonable person standing in the shoes of the defendant would have felt that he was not at liberty to terminate the interrogation and leave or if there was a formal arrest or restraint on freedom of movement. Id. The State must prove that police conduct was constitutionally valid by a preponderance of the evidence. State v. Kittredge, 2014 ME 90, ¶ 17, 97 A.3d 106. Courts consider the totality of a number of factors in making the objective determination if a person is in custody. Those factors include:
1. the locale where the defendant made the statements;
2. the party who initiated the contact;
3. the existence or non-existence of probable cause to arrest (to the extent communicated to the defendant);
4. subjective views, beliefs, or intent that the police manifested to the defendant, to the extent they would affect how a reasonable person in the defendant's position would perceive his or her freedom to leave;
5. subjective views or beliefs that the defendant manifested to the police, to the extent the officer's response would affect how a reasonable person in the defendant's position would perceive his or her freedom to leave;
6. the focus of the investigation (as a reasonable person in the defendant's position would perceive it.)
7. whether the suspect was questioned in familiar surroundings;
8. the number of law enforcement officers present;
9. the degree of physical restraint place upon the suspect; and
10. the duration and character of the interrogation. Nadeau at ¶54.
Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. State v. Dominique, 2008 ME 180, ¶ 12; citing Rhode Island v. Innis, 446 U.S. 291(1980). For Miranda purposes, an interrogation encompasses not only direct questions but also any words or actious on the part of the police (other than those normally attendant to arrest and custody) that police should know are reasonably likely to elicit an incriminating response from the suspect. Id. See also State v. Bragg, 2012 ME 102, ¶ 15. The State bears the burden of establising by a preponderance of the evidence that a Miranda warning was not required. Bragg$ 15.
3. Discussion
The evidence presented at hearing, particularly the audio and video recording of Officer Barnie's interaction with Landry, is overwhelming that Landry was extremely intoxicated. This was apparent within just a few moments of Officer Barnies interacting with Landry. Officer Barnies observed Landry drive his vehicle in an odd manner, driving it a short distance at a slow speed. Landry was confused as to his whereabouts, the location of his own home, and the identity of the lady in the driveway who he mistook as his mother. Landry's speech was slurred, and he talked in a rambling, mumbling fashion, lamenting about his having been sober for eight weeks and failing off the wagon. He had to be coaxed by both the officer and his wife to exit his vehicle, And once out of the vehicle, it is apparent Landry's coordination and physical abilities were severely compromised. The results of the field sobriety tests were not needed for Officer Barnies to know that Landry was highly intoxicated. And as he had seen him drive, probable cause existed to arrest Landry for operating under the influence.
In addition to probable cause to arrest, other factors exist that indicate Landry was in custody prior to Officer Barnies formally arresting him and placing him in handcuffs. Following Officer Barnies attempts at administerinng the HGN test, he spoke with Mrs. Landry. That Officer Barnies knew Landry was extremely drunk was confirmed when he responded to Mrs. Landry that 30 minutes would not be enough time for Landry to become intoxicated to that degree he was observing. He then told Mrs. Landry he had to administer a couple more tests and then "..probably take him to the jail". And a few moments later, when discussing getting Landry into detox, Officer Barnies stated detox was something they could do when Landry got out of jail. From these statements, the court can only conclnde that Officer Barnies had already concluded Landry was going to be placed under arrest.
The conrt does not fanlt Officer Barnies for having reached a decision to arrest Landry prior to attempting the remaining two field sobriety tests. Everthing Officer Barnies observed about Landry from the very first moment he saw him indicated Landry was extremely intoxicated. But constitutional and procedural safeguard exist, arising out of dne process and a sense of fairness, and if the officer knows he is going to arrest a suspect, then those constitutional safeguards should be applied. Although an arresting officer's subjective intent and belief is not specifically one of the usual ten factors cited infra (see Nadeau, ¶54), it remains in the totality of the circumstances present in this case an important consideration. The court concedes Landry may not have heard Officer Barnies' comments to Mrs. Landry. But that the officer essentially told Mrs. Landry he would be arresting Landry, while standing just a few feet away, seems an important consideration indicating Landry was in custody.
There are other factors. Landry was clearly the subject and focus of Officer Barnies' investigation, and there were two, if not three, officers present. And the court also notes from viewing the video, that during the time Officer Barnie spoke with Mrs. Landry, Officer Tripp positioned himself immediately in front of Landry, standing between Landry and Officer Barnie and Mrs. Landry. Watching the video, the court was left with the impression that Offcier Tripp's positioning was to assure Landry could not leave.
The State has not met its burden. Looking at the totality of the circnmstances, the court finds that as of the moment Officer Barnies told Mrs. Landry he would be taking Landry to jail, Landry was in custody. And although Officer Barnies may not have been interrogating Landry in the traditional sense, there were questions asked, statements made, and actions taken by Officer Barnies that were reasonably likely to elicit an incriminating response from the suspect. See State v. Bragg, 2012 ME 102, ¶ 15, Landry's motion to suppress is granted to the extent that all statements, including nonverbal communication, made by Landry after the moment Officer Barnie began speaking with Mrs. Landry (approximately 10'30" mark of the video) are suppressed, including statements made to Officer Tripp, and are not admissible during the State's case in chief. This order does not apply to the usual and routine questions asked during administration of the intoxylyzer test. The court will re-visit the issue of admissibility at trial as needed for issues of impeachment, or should the defense make improper inquiries during cross-examination or during its defense that warrant admissibility.