Opinion
DISTRICTCOURT PORTLAND Docket No. CDCR-16-3752
02-07-2017
STATE OF MAINE v. STEVEN MCDONOUGH Defendant
STATE OF MAINE
CUMBERLAND, ss. ORDER ON MOTION TO SUPPRESS
Defendant has been charged with criminal OUI pursuant to 29-A M.R.S. § 2411. Pending before the court is Defendant's Motion to Suppress, filed January 10, 2017.
The court held a hearing on Defendant's Motion to Suppress on February 2, 2017. Defendant appeared, represented by Attorney James Boulos. The State appeared, represented by Assistant District Attorney William Barry. The court heard testimony from Officer Bleicken of the Westbook Police Department, and admitted into evidence a hand-drawn diagram of the scene where Defendant's truck was found following its involvement in a single-vehicle accident. Counsel filed post-hearing memoranda on February 3, 2017.
At hearing, Officer Bleicken described being dispatched to the scene of an accident and testified that upon arrival at the scene he observed Defendant's vehicle jammed between a concrete pole and a footbridge. It appeared that Defendant had gone around a concrete barrier erected along Bridge Street. Officer Bleicken testified that he approached the passenger's side of the vehicle, and that Officer Clark, who was there at the time, approached the driver's side. Officer Bleicken testified that Officer Clark was the first to speak to Defendant, and that he heard part of their conversation, including Defendant's comment of "definitely OUI." No testimony was introduced from Officer Clark, as Officer Clark was not present at the hearing. Defendant contends that suppression is warranted on the ground that, because it was Officer Clark who asked Defendant to exit the vehicle, in the absence of testimony from Officer Clark, the State has not met its burden of showing the requisite reasonable articulable suspicion for the command to exit.
The "reasonable articulable suspicion" standard is well-established. The Law Court has repeatedly noted that:
An investigatory stop is justified if the officer at the time of the stop has an articulable suspicion that criminal conduct has taken place, is occurring, or imminently will occur, and the officer's assessment of the existence of specific and articulable facts sufficient to warrant the stop is objectively reasonable in the totality of the circumstances. The reasonable suspicion standard requires less than probable cause that a crime was being committed, but more than speculation or an unsubstantiated hunch.State v. Vaughan, 2009 ME 63, ¶ 10 (quoting State v. Sampson, 669 A.3d 1326, 1328). See also State v King, 2009 ME 14, ¶ 6 ("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.'") (quoting State v. Wood, 662 A.2d 919, 920 (Me. 1995)).
Defendant posits his argument as if this case involved a traffic stop effected by Officer Clark such that Officer Clark's absence from the hearing would frustrate the State's ability to show that at the time the officer pulled Defendant's vehicle over he had an objectively reasonable basis for doing so. Here, however, Westbrook Police Officers were dispatched to the scene of an accident involving Defendant's vehicle. Officer Bleicken was present and personally observed Defendant's vehicle where it had come to rest after encountering a concrete barrier. While Officer Clark was the first to engage Defendant in conversation, and apparently was the one who asked Defendant to exit the vehicle (Officer Bleicken's testimony is not clear on this point, but at hearing defense counsel and ADA Barry argued as if it were), Officer Clark's testimony is not required in order for the State to meet its burden in this case. The evidence adduced at trial -- consisting of the diagram of the accident scene and Officer Bleicken's testimony respecting his personal observations of the accident scene, his observation that Defendant's speech was "slurred" and his overhearing of Defendant's comments during Officer Clark's questioning -- provides specific and articulable facts which, under the totality of the circumstances, justify a reasonable suspicion that Defendant had been driving while under the influence.
Accordingly, because the evidence adduced at hearing establishes the requisite reasonable articulable suspicion, it is hereby ORDERED that Defendant's Motion to Suppress is DENIED. DATED: 7 February 17
/s/_________
Jed J. French
Judge, Uniform Criminal Court