State v. Brown

GLASSMAN, Justice,

dissenting.

[¶ 6] Because I believe the District Court erred by denying Brown’s motion to suppress all evidence obtained as a result of the stop of his vehicle, I must respectfully dissent. The Court concedes, and the District Court determined, in the circumstances of this case the use of the alley for parking, the entrances to businesses and residences located on the alley, pedestrian traffic and children bicycling in the alley, that Brown’s operation of his vehicle at a slow rate of speed was an insufficient basis for the police to stop the vehicle.

[¶ 7] The law is well established that the suspicion for a stop must be based on information available to the officer at the time of the stop and cannot be bolstered by evidence secured by the stop. State v. Chapman, 495 A.2d 314, 317 (Me.1985). The reasonable articulable suspicion standard requires more than mere speculation. Id.

[¶ 8] Here, the record reveals that prior to the stop Officer Jamo observed nothing to support his suspicion that Brown was operating his vehicle while under the influence of alcohol. It was after the stop that Jano observed Brown’s appearance and any indicia of his physical impairment. The consumption of liquor in a motor vehicle by an adult while not operating the vehicle on a public way is neither a crime nor a civil violation. State v. Nelson, 638 A.2d 720, 722 (Me.1994). Observing Brown take a sip from a beer can while seated in his parked vehicle does not give rise to a reasonable articulable suspicion that he had previously operated his vehicle while under the influence of an intoxicant. I would vacate the judgment.