The opinion
STATE OF MAINE -E OF MA\NE UNIFIED CRIMINAL COURT
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Office DOCKET NO CR-2018-5291
STATE OF MAINE APR 1)5 20\9
R.t:Cff \\/E.fiR.DER ON DEFENDANT'S
v. ) MOTION TO SUPRESS
)
SAMANTHA R. CAREY )
This matter came before the court on March 26, 2018 for hearing
on Defendant's motion to suppress. Defendant was present and
represented by Attorney Alexander E. Spadinger, Esquire. The State was
represented by Assistant District Attorney Deborah A. Chmielewski,
Esquire.
At the onset of the hearing, Defendant clarified the issues raised by
her motion to suppress. Specifically, Defendant challenges whether the
officer has sufficient reasonable, articulable suspicion to request
Defendant submit to field sobriety tests, whether there was sufficient
probable cause to arrest defendant, and whether the State violated
Defendant's federal and state rights under Miranda v. Arizona, 348 U.S.
436 ( 1966). and its progeny. The court heard the testimony of Benjamin
Noyes and observed Defendant's Motion Exhibit 3, a recording of the
traffic stop created by the officer's WatchGuard recording system. 1
Additionally the court reviewed Defendant's Motion Exhibits 1 and 2 as
well. Following the hearing, the court took the matter under advisement.
Having now considered all of the evidence and arguments presented, the
court makes the following findings of fact and conclusions of law upon
which the order set forth below is based:
Benjamin Noyes is employed by the City of Portland as a patrol
sergeant with the Portland Police Department He has been with the
Portland Police Department for twenty-one (21) years.
On September 22, 2018, Sgt. Noyes was working the 4:00 pm to
2:00 am shift. He was on routine patrol in the downtown area, in a
marked cruiser equipped with the WatchGuard recording system. He
was in full uniform. At approximately 11: 00 p.m. Sgt. Noyes was
traveling south on Union Street towards the area known as the "Old Port"
area of downtown Portland. Sgt. Noyes observed a Jeep make an illegal
U-turn against a red light at the intersection of Fore Street and Union ·
Street. Sgt. Noyes waited as the traffic light cycled, and when the officer
1 The State published the video during its presentation, but used what was
marked as Defendant's Motion Exhibit 3 to publish the officer's WatchGuard
video.
Entered on the Docket:~ 1
had a green light, he turned to follow the Jeep. Initially, there were two
to three vehicles between Sgt. Parker's cruiser and the Jeep. As Sgt.
Noyes continued to follow the Jeep, the vehicles between his cruiser and
the Jeep turned off allowing Sgt. Noyes to travel directly behind the Jeep.
Sgt. Noyes observed the Jeep turn onto Silver Street without using its
directional light. Sgt. Noyes continued to follow the Jeep onto Silver
Street. At the intersection of Silver and Commercial streets, the Jeep
turned wit hout comin g to a complete stop at the stop sign. After
observi ng the vehicle failing to stop for the stop sign, Sgt. Noyes activated
his emergency lights and initiated a traffic stop. The Jeep pulled to the
side of Commercial Street and stopped without incident. (See
Defendant's Motion Exhibit 3 at 00:00 to 00:45.)
Sgt. Noyes approached the driver's side door of the vehicle and
asked the driver to produce her license, registration and insurance card.
In addition to the driver, Sgt. Noyes observed a female passenger in the
front passenger seat. While waiting for the driver to produce the
requested paperwork, Sgt. Noyes asked the driver where she was coming
from. The passenger attempted to answer for the driver, stating "she's
just pickin g m e up, I'm drunk.". Sgt. Noyes again asked the driver where
she was coming from and again the passenger attemp ted to answer. The
passenger was t old to allow the driver to answer. Sgt. Noyes again
requ ested the paperwork from the driver. Th e dliver attempte d to h and
Sgt. Noyes some pape rwork in a envelop and asked if "that was it"
referring to the r equ ested paperwork. Sgt. Noyes in structed the driver to
remove the item from the envelop. The driver then handed Sgt. Noyes
her driver's license and insurance paperwork.
Sgt. Noyes identified the driver as Samantha Carey from her Maine
State driver's license. Sgt. Noyes again asked where Ms. Carey was
coming from, to which she answered "here ." Sgt. Noyes asked Ms. Carey
how much she had had to drink, to which she responded, "nothing." Ms.
Carey the11c,offered "I came from work." Sgt. Noyes ·inquired where she
worked, arid Ms. Carey stated "Maine Med." Sgt. Noyes a gain requested
the registration p aperwork. As Ms. Carey continued looking for the
registration, Sgt. Noyes iJ.1quired where she were going . Ms. Carey stated
Old Orchard Beach. At this point Ms. Carey can be heard stating
"apparently" she could not find the registration. He then asked what
time Ms. Carey got out of work, to which she said 7:00 pm. Sgt. Noyes
then asked Ms. Carey where she went after work. Ms. Carey again
answered, "here." She then informed Sgt. Noyes that she worked 7 to 7
shift, and noted that she needed to be back in the following day. Sgt.
Noyes ask ed a third time where Ms. Casey had been after work, and
again she a nswer ed "here ." Her passenger then stated "the Old Por t." At
this point Sgt. Noyes asked M . Carey how much s he h a d had to drink,
and again she stated "nothing."
2
/
l
In looking for her registration, Ms. Carey initially prbvided Sgt.
Noyes with a yellow sales receipt. Although the registration paperwork
was at the top of the papers in Ms. Carey's hand, she filed through the
paperwork a three times before she located the registration paper. After
a few minutes looking, Ms. Noyes was eventually handed her registration
to Sgt. Noyes. Sgt. Noyes then informed Ms. Carey of the traffic
infractions that he observed. 2 Ms. Carey offered that she was not
familiar with the area. Again Sgt. Noyes asked how much Ms. Carey had
had to drink, and she answered "I haven't." The officer noted that Ms.
Carey was wearing a wrist band. from a local brewery and asked her
about it.
During this initial contact with Ms. Carey, Sgt. Noyes noted the
odor of alcohol coming from the vehicle.3 He also noted that Ms. Carey's
eyes were bloodshot and glassy, her pupils were dilated, and there was a
slight slur in her speech. Sgt. Carey then returned to his cruiser. Sgt.
Noyes had been with Ms. Carey for approximately four (4) minutes as
this point. (See Defendant's Motion Exhibit 3, at 1:00 to 04:45.)
The officer then returned to his cruiser. Approximately three
minutes later, Sgt. Noyes, returned to Ms. Carey's window and asked her
to step out of her vehicle. By this point a second officer had arrived (per
department policy) to backup Sgt. Noyes who was going to conduct field
sobriety tests. When Sgt. Noyes asked Ms. Carey to step out of the
vehicle, both Ms. Carey and her passenger became excited, stating that
she wanted to talk to her lawyer. Sgt. Noyes opened the driver's side
door and said come out here. Sgt. Noyes continued to ask Ms. Carey to
step out of the vehicle. The passenger began arguing with the officer,
asserting that Ms. Carey had a right not to step out and to have a lawyer.
2 Sgt. Noyes informed Ms. Carey about the illegal U-turn, failing to use her turn
signal at the right hand turn onto Silver Street, and making a right hand turn
onto Commercial Street without first stopping at the stop sign.
3 The court heard testimony regarding three cans observed in the passenger
side door pocket. Sgt. Noyes testified at the motion to suppress that he believed
one of the cans to be a Corona Light b eer can, but that he was unable to
determine what the other two cans contained. Two versions of the officer's
report were produced and admitted as Defendant's Motion Exhibit 1 and
Defendant's Motion Exhibit 2. Sgt. Noyes testified, credibly, that he initially
drafted his report within 45 minutes of the stop, and then modified the report
before it was submitted for approval by his supervisor. The report was printed
both before and after the modification. The court does not rely in any instance
on the cans located in the passenger door in its analysis. The cans were next to
the intoxicated passenger, and not near to the driver during any of the officer's
interaction with the operator, and do not play a role in the court's
determination regarding reasonable articulable suspicion and the officer's
request the Ms. Carey perform field sobriety tests .
3
Sgt. Noyes warned the passenger about obstructing the investigation,
and again asked Ms. Carey to step out of the vehicle. He then stated,
"One way or another you have to come out of the car." At this point Ms.
Carey then said that she wanted to call her fath_er, and she reached into
the center console of her vehicle. Sgt. Noyes, who did not initially know
what Ms. Carey was reaching for, grabbed her arm and asked her again
to step out of the vehicle. Realizing the Ms. Carey had grabbed her
phone, Sgt. Noyes took her phone out of her hand and set it on her dash
board. Ms. Carey said "I'm calling my dad." The passenger continued to
speak loudly. Sgt. Noyes instructed that the passenger could call the
father while Ms. Carey stepped out of the car. At this point Ms. Carey
said "I will." Sgt. Noyes released her arm, Ms. Carey stepped out of the
vehicle and went to the back of the vehicle. (Defendant's Motion Exhibit
1, at 7:45 to 9:20.)
Once at the back of the vehicle, the officer began instructing that
Ms. Carey had two choices, that she could do field sobriety tests,
whereupon, and before Sgt. Nayes indicated what the second choice
might be, Ms. Carey stated "I will, I've done it before, its fine." Sgt. Noyes
informed Ms. Carey that he was going to conduct field sobriety tests to
determine whether or not Ms. Carey was sober enough to drive home.
Prior to beginning the field sobriety tests, Sgt. Noyes asked Ms.
Carey if she has smoked any marijuana or was taking any medications,
to which she replied no. Sgt. Noyes then asked if Ms. Carey had any
injuries that would affect her ability to drive a car or to perform the
requested tests. Again, Ms. Carey answered in the negative.
Sgt. Noyes first explained the HGN test to Ms. Carey. She
interrupted him during the explana tion, but then followed his
instructions, and Sgt. Noyes a dministered the test. 4 Sgt. Noyes observed
six out of six clues during this test: lack of smooth pursuit, distinct and
sustained nystagmus at maximum deviation, and the onset of nystagmus
prior to 45 degrees in both eyes. Ms. Carey had no difficulty standing
while the HGN test was performed. While administering this test, Sgt.
Carey observed the smell of alcohol coming from Ms. Carey's breath.
4 While Sgt. Noyes was explaining the test, Ms. Carey's passenger, inquired of
the assisting officer if she could leave. The passenger was informed that she
could leave the area. After a 1ninute she got out of the vehicle, but rather than
walking away, she attempted to speak to Ms. Carey as Sgt. Noyes was
conducting the HGN test. The passenger was again warned about the
consequences of obstructing government administration. After a brief exchange
between the passenger and the assisting officer, the pc;1.ssenger walked away.
who had gotten out of the vehicle, was permitted to leave the area. (Defendant's
Motion Exhibit 3, at 10:00 to 12:40.)
4
Sgt. Noyes next asked Ms. Carey to perform the "Walk and Turn"
test. 5 The area that the test was conducted was paved and flat. Prior to
starting the test, Sgt. Noyes asked Ms. Carey to stand in the
instructional position and watch as he demonstrated the test. Sgt. Noyes
identified three clues during this test: Ms. Carey stepped off the
imaginary line, she missed heel to toe in both directions and she raised
her arms for balance.
Finally, Sgt. Noyes conducted the One Leg Stand test. He
explained the test, and asked if Ms. Carey understood the test, which she
indicated that she did. As Sgt. Noyes was explaining the test to Ms.
Carey, he noted that her body swayed slightly from side to side. During
the test, Ms. Carey counted ten 1,000 twice, then she put her foot down
at twenty 1,000 and looked to the officer saying "like I don't know. How
long do you want me to go for?" She was told to continue the test until
instructed to stop, which she did. At the end of this test Sgt. Noyes
informed Ms. Carey that he believed that she had either been drinking or
had taken some sort of medication. He then asked Ms. Carey to rate her
level of intoxication on a scale of 1 (completely sober) to 10 (most
intoxicated ever been) and she indicated that she believed she was a
three, saying it had been a rough week at work. At the end of the field
sobriety tests, Sgt. Carey informed Ms. Carey that he was placing her
under arrest for operating under the influence. 6
In order to justify a brief investigato ry stop a police officer must
have an "objectively reasonable, articul abl e suspicion that either criminal
conduct, a civil violation, or a threat to public safety has occurred, is
occurring, or is about to occur based on the totality of the
circumstances." State v. Porter, 2008 ME 175, i(8, 960 A.2d 321, 323
(quoting State v. Sylvain, 2003 ME s,r11, 814 A.2d 984, 987.) "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. Taylor, 1997 ME 81, ,r9, 694 A.2d 907 (quoting State v. Hill, 606
A.2d 793, 795 (Me 1992). "[R]easonable articulable suspicion is
considerably less than proof of wrongdoing by a preponderance of the
evidence." State v. Porter 2008 ME 175, ,r9, )(quoting State v. Burgess,
02001 ME 117, ,rs, 776 A.2d 1223, 1227.) See also State v. Sampson,
s While the test was being demonstrated to Ms. Carey, her passenger returned,
and again attempted to communicate with Ms. Carey. The passenger was
instructed to leave the area wh.ich she eventually did. (Defendant's Motion
Exhibit 3, at 13:20 to 14:20.)
6 Ms. Carey's passenger again returned, and after multiple exchanges with the
officers she was also placed under arrest. (Defendant's Motion Exhibit 3, at 18:50
to 21:03.)
5
"the reasonable suspicion standard requires less than probable cause
that a crime was being committed, but more than speculation or an
unsubstantiated hunch." Sampson, 669 A.2d at 1328 (Me 1996) (quoting
State v: Caron, 534 A.2d 978, 979 (Me. 1987). "This standard balances
the driver's right to be free from excessive restraint by the State against
the public's right not to be placed at risk by an impaired driver." State v.
Porter, at 19.
In this case, Sgt. Noyes observed Ms. Carey's vehicle do an illegal
U-turn, turn without signaling, and fail to completely stop at a stop sign.
He initiated a traffic stop for the various infractions. In speaking with
Ms. Carey, the officer noted an odor of alcohol coming from the vehicle
and that Ms. Carey's passenger was intoxicated. Ms. Carey's speech was
slightly slurred, her eyes were bloodshot and glassy, her pupils were
dilated. Ms. Carey also had difficulty producing her registration, even
though it was in her hand as she was looking for it. Based on the totality
of the officer's observations he had reasonable articulable suspicion that
Ms. Carey may be impaired, sufficient to warrant further investigation
through field sobriety tests.
When Sgt. Noyes asked Ms. Carey to step out of the vehicle so he
could conduct field sobriety tests, Ms. Carey was seized for the purposes
of Fourth Amendment analysis. "'A seizure of the person occurs when
the officer, by means of physical force or show of authority, has in some
way restrained the liberty of a citizen such that he (or she) is not fee to
walk .away."' State v. White, 2013 ME 6 6, ~1 1, 70 A.3d 1226, 1230
quoting State v. Cilley, 1998 ME 34, if7, 707 A.2d 79. The next question
in the analysjs is whether or not such s e.i zure was reasonable. Id.. "A
seizure is reasonable if made pursuant to an investigative detention
based on reasonable suspicion of criminal activity, or if made pursuant
to an arrest based on the higher standard of probable cause that a crime
has been committed." Id. at~ 12, (quotations and citations omitted).
During such an investigative detention, the officer may take actions that
are "reasonably related in scope and circumstances which justify the
detention." Id., at~ 13.
Sgt. Noyes' actions, in requesting that Ms. Carey exit her vehicle so
that he could conduct field sobriety tests were reasonable based on his
observations of the various traffic infractions, followed by her slightly
slurred speech, bloodshot and glassy eyes, dilated pupils, evasive
answers about where she had been that night, and the odor of alcohol
coming from the vehicle contrasted with Ms . Carey's denial that she had
consumed any alcohol that night. At th is point, Ms. Carey did not get
out of the vehicle when requested by Sgt. Noy s. Based on the exchange
between Sgt. Noyes and Ms. Carey, including the continued interjection
of her passenger and Ms. Carey grab bing for her phone, his continued
6
detention did not exceed what was necessary to dispel the suspicion that
led to his initial detention, and therefore the roadside detention prior to
arrest did not rise to the level of a defacto arrest. Id.. The length of
detention, approximately eighteen minutes, although longer than some,
was not so unreasonable, based on the totality of the facts and
circumstances, including Ms. Carey's behavior and the interjections of
her passenger, as to be an unlawful detention. Finally, even if the
circumstances of the detention amounted to a de facto arrest, Sgt. Noyes
had sufficient probable cause, at the time of his initial request, that Ms.
Carey's senses were "affected to the slightest degree, or to any extent" by
the consumption of alcohol. See State v. Webster, 2000 ME 115, ,i7, 754
A.2d 976.
Ms. Carey asserts that she submitted to the field sobriety tests as a
result of compulsion. The Maine Constitution provides that "[i]n all
criminal prosecutions, the accused ... shall not be compelled to furnish
or give evidence against himself or herself ... " Me. Const., art. I, §6. The
Fifth Amendment of the United States Constitution protects an
individual from being "compelled in any criminal case to be a witness
against himself." U.S.Const. amend. V. The Law Court has held that
evidence that is "nontestimonial is not within the privilege against self
incrimination, and neither the Fifth Amendment of the United States
Constitution, nor article I, section 6 of the Maine Constitution prohibits
the use of nontestimonial evidence." State v. Millay, 2001 ME 177,i 15,
787 A.2d 129, 132, see also Pennsylvania v. Muniz, 496 U.S. 582, 589,
110 L.Ed. 2d 528, 110 S.Ct. 2638 (1990), State v. McKechnie, 1997 ME
40, ,i8-9, 690 A.2d 976, 978 -979 and Schm erber v. California, 384 U.S.
757, 761, 16 L.2d 2d 908, 86 S.Ct. 1826 (1966). The Law Court has also
held that "admission into evidence of a defendant's peiiormance on field
sobriety tests did not violate the defendant's privilege against self
incrimination because the evidence was nontestimonial." Id.. See also
State v. Eastman, 1997 ME 39, ,i,i 10, 691 A.2d 179, 182-183. "[A]
defendant's performance on field sobriety tests is nontestimonial in
nature." State v. Bragg, 2012 ME 102, ,i 13, 48 A.3d 769, 773, citing
State v. Millay, 2001 ME 117, if 15. Further, because a defendant's
performance on field sobriety tests is nontestimonial in nature, so to is a
refusal to perform field sobriety tests. State v. Millay, 2001 ME at ,i 15.
Ms. Carey exited her vehicle after numerous requests by Sgt.
Noyes. During that period, Ms. Carey's passenger repeated interjected
and told Ms. Carey not to cooperate. Just prior to exiting the vehicle,
Ms. Carey reached for her phone which caused the officer to grab her
arm. At this point, Ms. Carey indicated that she would get out of the
vehicle, and she exited the vehicle. There was one backup officer present
in addition to Sgt. Noyes. Once out of the vehicle, Ms. Carey was
cooperative and performed the field sobriely tests. Once Ms. Carey was
7
placed in custody, she made some statements, but such statements were
not a result of any interrogation by the officers, but rather spontaneous
statements made by Ms. Carey during the arrest.
Ms. Carey also argues that her statements to Sgt. Noyes should be
suppressed as she was functionally under arrest, and such statements
violated her rights under Miranda v. Arizona, 348 U.S. 436 (1966). "In
order for statements made prior to a Miranda warning to be admissible,
the State must prove, by a preponderance of the evidence, that the
statements were made while the person was not in custody, or was not
subject to interrogation." State v. Bragg, 2012 ME 102, ,rs, 48 A.3d 769,
773, quoting State v. Bridges, 2003 ME 103~23, 829 A.2d 247. Whether
a person is in custody depends on "whether. a reasonable person
standing in the defencbnt's shoes, would have felt he or she was not at
liberty to terminate the interrogation and leave." Id .. When Ms. Carey
was speaking to Sgt. Noyes, she was not under arrest. She was the
subject of a roadside stop, which was a brief and temporary investigatory
stop. See Bragg, at if 9. This brief detention to investigate is consistent
with the characteristics of a Terry-type stop that does not rise to the level
of custody for Fifth i\rncndmcnt purposes. See Bragg. Ms. Carey was
not in custody during this conversation. Once she was placed under
arrest, she was not interrogated. The court finds that Ms. Carey was not
subject to an interrogation for the p1.1.rposes of Miranda.
Based on the foregoing;, Defendant's Motion to Suppr
Dated: April 15, 2019
Deborah P. Cashman
Judge, Maine District Court
8