State of Maine v. Gervais

• Court: Superior Court of Maine
• Decided: September 8, 2006
• Docket: KENcr-06-739
• Status: Unpublished

Opinion

STATE OF MAINE RECEIVED All0 FILE? UPEMOR COURT KElit{EsEC S;,iLl;:g;( c:,;;I$ CRIMINAL ACTION KENNEBEC, ss DOCKET NO. CR-06-739 ~IJDIJ SEP -8 P 1: 31 1 I

11 !,. 1 ' - \/ /; I.,,,. ; /, !?.-::.;. . t . - .: STATE OF MAINE c-L6,,, , ;,i" . I.- ~ b i : iI ~ .. 3: ~ ORDER ON DEFENDANT'S v. MOTION TO SUPPRESS

KEVIN GERVAIS,

Defendant

The defendant seeks to suppress evidence obtained as a result of the detention of

the defendant and statements made by the defendant to Officer Anderson at the police

station. The court has considered the testimony and has watched the videotape. See

State's Ex. 1. For the following reasons, the motion is granted in part and denied in

part.

FINDINGS

On 3/26/06 at 1:00 a.m., Waterville Police Officer Lawrence Anderson was

monitoring traffic near Pete and Larry's, a bar in Waterville. In his rear view mirror, the

officer noticed a Volkswagen traveling through the Elm Plaza parking lot,

approximately 70 yards away. The vehicle slowed and stopped completely. The driver

leaned out of the driver's side door, which was open. The officer considered this unusual behavior for an operator of a motor vehcle and noted also that the vehcle's

right brake light was out. The officer pulled behnd the vehicle and activated h s blue

lights.

Later, the officctr placed the operator under arrest and transported him to the police station. The two were in the boolung room for approximately one hour. The operator eventually took a breath test. The officer did not advise the operator of h s

Mranda rights.

CONCLUSIONS

An officer may detain a citizen only when "'specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant that

intrusion."' State v. Gulick, 2000 ME 170, ¶¶ 12, 18, 759 A.2d 1085, 1088-89 (quoting

State v. Dulac, 600 A.2d 1121, 1122 (Me. 1992)) (quoting Terrv v. Ohio, 392 U.S. 1, 21, 20

L. Ed. 2d 889, 88 S. Ct. 1868 (1968)). Based on his observations of the operator and the

brake light, the officer was justified in detaining the operator.

The operator was under arrest and in custody in the boolung room when the

officer asked questions. The required Miranda warnings were not given prior to the

officer's interrogation. See State v. Hollowav, 2000 ME 172, q[ 13, 760 A.2d 223,228. The

answers to the following questions asked by the officer are suppressed:

1. whether the operator had three beers (asked twice);

2. whether the defendant was taking any drugs;

3. whether the operator said he had a beer before leaving Pete and Larry's;

4. how the operator ended up going to the parking lot.

The entry is

The Defendant's Motion to Suppress is DENIED regarding evidence obtained as a result of the detention of the operator . P and GRANTED regarding the above-lis d statements of the defendant.

Date: September 8,2006 &kdncv Mlls ~ustice,Superior Court STATE OF MAINE SUPERIOR COURT vs KENNEBEC, ss. KEVIN R GERVAIS Docket No AUGSC-CR-2006-00739 284 UPPER RIDGE ROAD FAIRFIELD ME 04937 DOCKET RECORD

DOB: 02/28/1969 Attorney: WAYNE FOOTE State's Attorney: TRACY DEVOLL LAW OFFICE OF WAYNE R. FOOTE 273 HAMMOND ST PO BOX 1576 BANGOR ME 04402-1576 RETAINED 04/07/2006

Charge ( s)

1 OPERATING UNDER THE INFLUENCE 03/26/2006 WATERVILLE Seq 9878 29-A 2411(1-A) (A) Class D ANDERSON / WAT

Docket Events:

07/10/2006 Charge(s) : 1 TRANSFER - TRANSFER FOR JURY TRIAL ED1 ON 07/10/2006 @ 18:01

TRANSFERRED CASE: SENDING COURT CASEID WATDCCR200600706 FILING DOCUMENT - NON CASH BAIL BOND FILED ON 03/28/2006

Charge(s): 1 HEARING - ARRAIGNMENT SCHEDULED FOR 06/14/2006 @ 8:30

NOTICE TO PARTIES/COUNSEL Charge ( s ) : 1 HEARING - ARRAIGNMENT WAIVED ON 04/07/2006

07/10/2006 BAIL BOND - $500.00 UNSECURED BAIL BOND FILED ON 03/28/2006

Bail Amt: $500 Date Bailed: 03/26/2006 Charge (6): 1 SUPPLEMENTAL FILING - COMPLAINT FILED ON 06/06/2006

Party (s): KEVIN R GERVAIS ATTORNEY - RETAINED ENTERED ON 04/07/2006

Attorney: WAYNE FOOTE Charge (s): 1 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 04/07/2006

MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 07/07/2006

Charge (6): 1 TRANSFER - TRANSFER FOR JURY TRIAL GRANTED ON 07/10/2006

Charge (s): 1 Page 1 of 2 Printed on: 09/08/2006 KEVIN R GERVAIS AUGSC-CR-2006-00739 DOCKET RECORD TRANSFER - TRANSFER FOR JURY TRIAL REQUESTED ON 07/07/2006

Charge (s): 1 FINDING - TRANSFER FOR JURY TRIAL TRANSFERRED ON 07/07/2006

AUGSC 07/11/2006 Charge ( s ) : 1 TRANSFER - TRANSFER FOR JURY TRIAL RECVD BY COURT ON 07/11/2006

WATDC-CR-2006-00706 07/11/2006 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 08/10/2006 @ 8:00

NOTICE TO PARTIES/COUNSEL 09/08/2006 HEARING - MOTION TO SUPPRESS HELD ON 08/10/2006 NANCY MILLS , JUSTICE Defendant Present in Court 09/08/2006 MOTION - MOTION TO SUPPRESS DENIED ON 09/08/2006

COPY TO PARTIES/COUNSEL

A TRUE COPY ATTEST : Clerk

Page 2 of 2 Printed on: 09/08/2006