State of Maine v. Erskine

Maine Superior

State of Maine v. Erskine

Superior Court of Maine·Decided August 3, 2013·No. KENcr-12-998·Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, SS CR-12-998 . / 1\J\ AJLVl - v £i/- '/;/3?~-D t3

STATE OF MAINE

v. ORDER ON DEFENDANT'S MOTIONS TO SUPPRESS

JOSHUA ERSKINE

Background

Before the Court are two motions to suppress, one pertaining to physical evidence and the other to statements. The Defendant has been indicted for Class A Manslaughter and Class B Aggravated Criminal OUI which the State alleges were committed on March 30, 2012. The State is represented by Deputy District Attorney Fern Larochelle and the Defendant is represented by Attorney Pam Ames. Hearing on the motions was conducted on May 9, 2013. The parties submitted written arguments, the last of which was received by the Court on July 13, 2013. The Court has considered the testimony and evidence submitted at hearing, the parties' arguments, and issues the following findings and order.

Findings

Sgt. Christopher Shaw of the Augusta Police Department was called to the scene of a motor vehicle accident in Augusta on March 30, 2012. Officer Shaw testified that before he arrived at the scene he was not aware of how serious the accident was, but soon learned that it was more than just a two-car accident. A pedestrian had been struck and had sustained life-threatening injuries.

The parties agree that Sgt. Shaw, after speaking with other law enforcement officers, conducted a warrantless search of the Defendant's glove compartment, purportedly in search of registration and proof of insurance. However, Sgt. Shaw did not seize those documents, but instead seized a pack of cigarettes. He shook it, and then removed pills from it. He then opened the center console of the vehicle, found an expired registration, but again seized pills from another pack of cigarettes. (Defendant's Exhibits 1-5).

Sgt. Shaw testified that he did not ask permission from the Defendant to search the car, even though the Defendant was being interviewed by other law enforcement officers and was apparently uninjured in the accident. He also conceded that he had no probable cause to believe that there was any contraband in the vehicle when he searched it. Apparently under instructions from prosecutors at the scene, Sgt. Shaw did not take official possession of any of the pills he found in the packages of cigarettes but instead put them back where he found them. He did share with others law enforcement officers what he had found in his searches.

In partial reliance upon the information from Sgt. Shaw, Sgt. Michael Pion sought and obtained a search warrant (State's Exh. 1). The affidavit in support of the warrant request included the information from Sgt. Shaw (paragraph 8 of affidavit) as well as a number of other factual assertions, including statements made by the Defendant to another officer that he had consumed Percocet and smoked marijuana before the crash. (Par. 9 of affidavit). More specifically, as Officer Peter Cloutier testified at hearing, he was charged with transporting the Defendant to the August Police Department for administration of a breath test when then-District Attorney Alan Kelly re-directed him to

a local hospital to have the Defendant give a blood sample. When Officer Cloutier told the Defendant where he was going the Defendant told him that they would find Percocet in his blood. 1 At hearing the State conceded that Sgt. Shaw's searches were illegal under the 4th Amendment. The parties disagree, however, as to whether suppression is constitutionally required. The State argues that under State v. Nadeau, 1 A.3d 445 (Me. 2010) the pills would have been "inevitably discovered" and that they are admissible also under the "independent source" doctrine articulated in State v. Rabon, 930 A.2d 268 (Me. 2007). The Defendant characterizes the physical evidence as "fruit of the poisonous" tree, namely Sgt. Shaw's warrantless and nonconsensual search of his vehicle. The Defendant argues that the statements made to Officer Cloutier should be suppressed as they were the product of custodial interrogation, while the State argues that they were volunteered statements.

The Court will address the issues of the statements and physical evidence separately.

Statements made by the Defendant to Officer Cloutier The Defendant's motion to suppress seems to challenge statements the Defendant made to Officer Cloutier as well as statements made to Trooper Chretien. However, the Defendant's written argument addresses only statements made to Officer Cloutier after he was placed in a police cruiser, and so the Court will address that argument only.

1 A similar admission was made by the Defendant to Trooper Joseph Chretien. Trooper Chretien testified that he was called to administer a drug recognition examination to the Defendant who after Miranda admitted that he had consumed Percocet and marijuana.

The parties agree that the Defendant was in custody from when he was placed in the cruiser after having been told that he needed to take an inoxylyzer test. 2 It also is uncontested that shortly after leaving the scene, Officer Cloutier was advised that he should not take the Defendant to the Augusta Police station but instead should take him to a local hospital to undergo blood testing.

The defense argument is that Officer Cloutier should have known that his statement to the Defendant- that he was not going to APD but to a local hospital for blood testing- was "reasonably likely to elicit an incriminating response" from the Defendant. Rhode Island v. Innis, 446 U.S. 291 ( 1980). The Defendant is correct that the test is an objective one. The Defendant is also correct that statements (even questions) characterized by brevity, neutrality, and an absence of intent to elicit a confession or admission do not constitute interrogation. State v. Simoneau, 402 A.2d 870, 873 (Me. 1979).

The Court would characterize the nature of the statement made by Officer Cloutier as brief and neutral. In addition, the Court finds that the motivation of Officer Cloutier was clearly to let the Defendant know- as he should have -where he was being taken and why. It was spontaneously made by Officer Cloutier immediately after he was directed by the District Attorney to take the Defendant to a different destination than had been previously been advised. It seems highly unlikely that the statement was intended to elicit an incriminating statement, and viewed objectively, was much more likely to simply have been intended to provide basic and humane information to the Defendant.

2 The Defendant does not argue either in his motion or memorandum that law enforcement had no justification for taking him into custody for this purpose. See 29-A Sections 2521, 2522.

The Court, therefore, finds that the Defendant's statement- that the police would find Percocet in his blood- was a volunteered statement not subject to suppression.

Physical evidence seized after execution of the search warrant The chronology of these events makes clear that law enforcement had significant information in regards to the Defendant's operation of his motor vehicle on the date in question before the search warrant was obtained. That information is set out in the affidavit of Sgt. Pion, paragraphs two through nine. As previously mentioned, paragraph 8 sets forth the information regarding Sgt. Shaw's illegal search ofthe Defendant's glove compartment and console. However, if the Court excises from the warrant the illegally obtained information- namely the discovery of the pills by Sgt. Shaw- there was still sufficient probable cause established3 without that information.

Under the so-called "independent source" theory set out in State v. Rabon, 930 A.2d 268, 275-276 (Me. 2010), evidence which might otherwise be subject to suppression may be admitted at trial if without the illegally obtained information the warrant is still based on sufficient, untainted independent sources. See also, State v. Storer, 583 A.2d 1016, 1019 (Me. 1990).

Free access — add to your briefcase to read the full text and ask questions with AI