The opinion
STATE OF MAINE
SUPERIOR COURT
CRIMINAL ACTION
KNOX, ss. DOCKET NO. CR-03-533
JRA “KANO O ioe eee
STATE OF MAINE
v. vee DECISION AND ORDER
ROBERT H. JUDECKI, Coir t 4
Defendant
MAY 25 204
Pending before the court are two motions to suppress. The first of these asks to
exclude as evidence any statements the defendant made to Rockland police officers
because they were elicited while the defendant was in custody and had not been
provided with Miranda warnings. The defendant also asserts that his statements were
involuntary.
The second motion claims that there was no articulable suspicion to stop the
automobile the defendant occupied, that there was no probable cause to arrest him, and
no probable cause to search the vehicle. Accordingly, the defendant asks that any
tangible evidence seized under these claimed circumstances be suppressed,
I. Facts.
After reviewing the court’s notes and the parties’ memoranda, the court makes
the following findings of fact.
At about midnight on April 3, 2003, Officer Nellie Waterman of the Rockland
Police Department was on patrol in that city. As she drove northbound on Camden
Street, also known as U.S. Route One, she observed a vehicle approaching her in the
vicinity of the Wal-Mart store with its high beams on. This part of Camden Street is
divided into three lanes ~ one northbound, and two southbound with the center
southbound lane designed for left-turning traffic. As this vehicle approached Officer
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Waterman, she observed it on the line separating her travel lane with the southbound
lane for left-turning vehicles. As a result, she altered her course to avoid this vehicle
and turned around so she could follow it. She caught up with this vehicle and followed
it southbound on Camden Street where she observed it drifting somewhat in its lane of
travel, its left tires touching the lane dividing line at least once. She continued to follow
the vehicle, a pick-up truck, after it turned on to Maverick Street and then pulled it over
at an EBS parking lot. According to Officer Wellman, the truck was never speeding and
never interfered with other traffic. Nevertheless, she believed she should stop the
vehicle because the driver might be impaired.
After the two vehicles stopped in the EBS lot, they were joined by another car
and, later, a second police car. Officer Wellman approached the truck and recognized
the operator, Timothy Tolman, whom she called “Casey.” She also recognized the
passenger, Robert Judecki, the defendant in this case. While there she learned that
Tolman’s license was under suspension and could smell the odor of alcohol inside the
vehicle, although she could not determine its source.
Tolman denied drinking, but was arrested for Operating After Suspension,
handcuffed and placed in Officer Waterman’s police cruiser. He also told Waterman
that his companion, the defendant, had been drinking so that he was asked to drive the
truck. She then returned to the truck where the defendant had been seated in the
passenger seat during this transaction. Officer Waterman asked Judecki if he had been
drinking and, then, asked him to step out of the truck, advising him she would be
searching the vehicle incident to the arrest of Tolman. Judecki, the owner of the vehicle,
indicated he had “no problem” with that, and complied with the officer’s direction to
get out of the truck.
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Officer Waterman then searched the cab of the pick-up truck where she found a
mesh Leatherman case in the glove box. Inside this case she found a clear plastic patch
known as a fentanyl patch which contains opiates, a scheduled W drug which is illegal
to possess without a prescription.
She then approached the defendant who was upset and crying, apparently
because he was underage and had been caught with signs of alcohol consumption, and
had been asked about his drinking. He also expressed fear of going to jail. Indeed,
Officer Waterman noticed that the defendant had blood shot eyes and slow reactions
and, as a consequence of these observations, believed that the defendant was somewhat
impaired.
She asked him if the pouch was his and then opened it and showed the
defendant the patch inside, asking him if he knew what it was. The defendant
acknowledged that the pouch was his but denied knowing what the patch was. After
Waterman said, “I know better than that; if the pouch is yours what is the patch doing
there?”, he acknowledged that the patch was his but that he did not realize it was still in
his truck. Again, Officer Waterman asked Judecki about his drinking that night.
During this conversation, Officer Waterman told the defendant he was not going
to be summonsed for the underage drinking and would not be arrested for possession
of the patch so that he should not fear being taken to jail. She did ask him, however, if
he had a prescription for the patch and, after Judecki said he did not have it with him,
she told him to bring it to the police department.
During these events at the EBS parking lot, there was one other police cruiser
present and a total of three police officers. Also present were Desiree Capizzano and
Nikki Frank, friends of the defendant, who had been following Judecki’s truck in their
own vehicle. Later, Ms. Frank ended up driving the defendant home in his truck.
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The defendant was never advised of his Miranda rights and testified that he did
not feel free to leave the scene, that he was in trouble, and that he would be taken to jail
after Officer Waterman found the patch. He agreed, however, that Officer Waterman
told him he would not be arrested for the alcohol violation and was ultimately told he
would not be arrested for possession of the patch.
On April 24, 2003, Officer Waterman came upon the defendant at a local
convenience store and asked him for the prescription for the patch and that she would
have to charge him if he did not produce it. In response, the defendant told her he did
not have a prescription.
IL. Discussion.
Law enforcement officers are authorized in executing a vehicle stop if “at the
time of the stop: (1) [the officer] has an “articulable suspicion’ of criminal activity; and
(2) such suspicion is ‘objectively reasonable in the totality of the circumstances.” State
v. Lear, 1998 ME 273, ] 5, 722 A.2d 1266, 1267 (quoting State v. Brown, 1997 ME 90, { 5,
694 A.2d 453, 455). An articulable suspicion that a civil violation has been committed
suffices to meet this test. State v. Connors, 1999 ME 125, 1 7, 734 A.2d 195, 197.
In the court's view, Officer Waterman, in observing a vehicle approach her which
did not dim its headlights, had an articulable suspicion to believe that its operator
committed a civil violation. 29-A M.R.S.A. § 2067(2). More importantly, that this
vehicle failed to dim its lights, crossed a dividing line once and drifted in its travel lane
twice thereafter late at night provided the officer with articulable suspicion to believe
that its operator was impaired and her suspicion that this may be the case is objectively
reasonable. Accordingly, the court concludes that the stop of the defendant's truck was
lawful.
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Once the vehicle was stopped, the officer was uncontestably authorized to ask its
driver for his license. Upon learning that Tolman’s license was under suspension,
Officer Waterman had probable cause and the authority to arrest him without a warrant
for the class E crime of Operating While License is Suspended or Revoked. 29-A
M.RS.A. § 2412-A(1); 17-A M.R.S.A. § 15(1)(B).
The search of the passenger area of a lawfully stopped motor vehicle when an
occupant has been arrested does not violate either the federal constitution or ours, New
York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864 (1981); State v. LaPlante, 534 A.2d
959, 963 (Me. 1987), even when the occupants are outside the vehicle. State v. LaPlante,
id. Thus, because Officer Waterman had articulable suspicion to stop the defendant's
truck and, later, had probable cause to arrest its operator, she also had the authority to
search the vehicle, and the fruits of that effort can be admitted in evidence without
violating either the Maine or federal constitutions. Accordingly, the motion to suppress
the evidence seized by Officer Waterman, the fentanyl patch, must be denied. <a p B
With reference to the motion to suppress the defendant's statements, it ought
first to be observed that routine roadside inquiries by a police officer immediately
following a traffic stop are considered noncustodial. State v. LaVoie, 562 A.2d 146, 148
(Me. 1989). So, Officer Waterman’s first inquiry to the defendant concerning his
drinking after the stop of his vehicle and while he sat in the passenger seat must be
viewed as a noncustodial interrogation which does not require Miranda warnings.
Once the defendant got out of his truck at Officer Waterman’s request, it may be
argued that the questioning characteristic of a routine traffic stop was over. If so, the
focus must be on whether, in the totality of the circumstances, the defendant was in
custody while being questioned by Officer Waterman so that she should have provided
Miranda rights to the defendant and secured a waiver of those rights.
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The case of State v. Michaud, 1998 ME 251, T{ 3-4, 724 A.2d 1222, 1225-26
reminds its readers that a defendant is in custody if he is either subject to a formal
arrest, or is restrained in his freedom of movement “to the degree associated with a
formal arrest.” Id. | 4, 724 A.2d at 1226. Because in this case the defendant was never
formally arrested, the court must turn to the objective factors supplied by the Law
Court in Michaud to determine whether the defendant was restrained “to the degree
associated with a formal arrest,” that is, “whether a reasonable person in the
defendant's position would have believed he was in police custody and constrained to a
degree associated with formal arrest.” Id.
Using those factors listed in Michaud which are applicable to the question of
custody in this case, the court concludes that Officer Waterman’s interrogation of the
defendant outside his truck was noncustodial so that the Miranda warnings were not
legally required.
The most compelling fact which leads this court to this conclusion is that Officer
Waterman, apparently out of concern for the defendant's emotional state, told him that
she would not be summonsing him for the alcohol violation and would not arrest him
for the drug violation, so that his fear of being taken to jail would be allayed. She also
told him that the possession of the patch was “no big deal” and asked him to bring in
his prescription for the patch to the police department at a later time. From this
exchange, even though it included or began with a question or two concerning the
fentanyl patch, a reasonable person would have understood that he was not under
detention. Indeed, as it turned out, Officer Waterman let the defendant go home in his
truck, albeit with a friend driving. So, any concerns that the defendant had about his
status should have been calmed by the officer's response to his emotional state when
she told him early on that she was going to “let him go” on the alcohol charge. That he
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continued to be upset says more about his sobriety than any apprehension he may have
reasonably felt while in the company of the police.
Next, the interrogation was quite brief and included perhaps two or three
questions about the patch. It was also nonconfrontational as Officer Waterman, as
noted, demonstrated a degree of empathy for the distress the defendant exhibited.
Additionally, at no time was the defendant physically constrained during his brief
exchange with Officer Waterman.
On the other hand, it was a uniformed police officer who initiated the contact
and was joined by two other officers during her dealings with the defendant. After the
patch was found, a reasonable person in the defendant’s position would also have
reason to believe that he was go be accused of its possession and that the circumstances
suggested he might be arrested for this offense just as his friend had been moments
earlier for a traffic crime.
Notwithstanding these observations, this brief interrogation of the defendant
after a routine traffic stop is not markedly different from the noncustodial
circumstances as characterized by the United States Supreme Court in Berkemer v.
McCarthy, 468 U.S. 420, 437, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317 (1984), namely that
questioning after a traffic stop carries with it the aura of the exercise of police authority
with a suspect’s knowledge that he is subject to the officer’s exercise of discretion so
that some pressure may be felt to answer questions, particularly where, as here, there is
more than one officer present. But these circumstances are offset by the public nature of
the transaction and, also as here, the presence of two friends who stood by and watched
the proceedings.
Although the defendant has provided no evidence and no argument on this
point, it is nevertheless incumbent on the court to also find that the brief exchange
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between the defendant and Office Waterman on April 24, 2003, in which she asked him
for the prescription for the patch, was also a noncustodial interrogation and his answer
to this question must not be suppressed. There is also no evidence in this case that the
defendant’s brief responses to Officer Waterman’s questions were provided
involuntarily either on April 4, 2003, or on April 24, 2003. Indeed, the topic was not
addressed by the defendant's testimony or in his post-hearing memorandum.
Finally, because the defendant was never arrested, there is no need to address his
contention that he was arrested without probable cause.
From all this, the court finds that the State has established by a preponderance of
the evidence that the interrogations of the defendant by Officer Waterman in the early
morning hours of April 4, 2003, and later, on April 24, 2003, were noncustodial so that
Miranda warnings and waivers were not required. The court also finds beyond a
reasonable doubt that the defendant's statements to Officer Waterman on these
occasions were provided voluntarily. Accordingly, this motion to suppress is to be
denied.
The clerk is directed to make the following entry:
Both Motions to Suppress are DENIED.
So ordered.
Dated: April_22._, 2004 pile La, i LE
Core R. Atwood
ustice, Superior Court
April 23, 2004
Attorney’s Involved:
Defense Attorney: Robert Levine, Esq.
For the State:
PO Box 248
Rockland, ME 04841
207-594-8400
Geoffrey Rushlau, Esq.
District Attorney
62 Union Street
Rockland, ME 04841
207-594-0424