STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CRIMINAL ACTION DOCKET NO. CR-16-1712
STATE OF MAINE
v. ORDER ON MOTION TO SUPPRESS JOSHUA HOLLAND,
Defendant
The defendant seeks to suppress evidence obtained as a result of the stop and the
arrest of defendant on 3/22/16. The defendant argues that the officer lacked reasonable
and articulable facts to justify the stop and lacked probable cause for the arrest. For the
following reasons, the motion is denied.
FINDINGS OF FACT
Officer Benjamin Burns has been employed by the Cumberland Police
Department since November 2015. Previously, he worked for the Maine Marine Patrol
for six months. He graduated from the Maine Criminal Justice Academy in May 2015.
He received OUI training, including training in standard field sobriety tests and the
intoxilyzer and participating in the wet lab exercise. He took a refresher course in field
sobriety tests at the end of 2015. At the time of the stop in question, he was deemed
proficient in field sobriety tests but not in horizontal gaze nystagmus (HGN). He has
made approximately ten OUI stops during his career.
On 3/22/16, Officer Burns was in uniform and in a marked cruiser and was
working the 4:00 p.m. to 2:00 a.m. shift. The weather was clear and cool. At a little after
10:00 p .m., he was using a dash camera and was facing oncoming traffic on Route 100.
(Def.'s Ex. 1.) He was running radar on some passing vehicles but not all of them. As
he was monitoring traffic, he observed a 2007 Subaru. He did not recall if the car was speeding. He ran the registration, which was valid and which showed the car had a
single registered owner, Elizabeth Holland. The owner had an expired driver's license.
As the car passed, Officer Burns was not able to observe the operator or to determine
whether the operator was a male or female. His testimony is confirmed by the video.
(Def.'s Ex. 1.) It was dark and he was focused on reading the registration plate and
entering that information into his computer. Officer Burns activated his lights. The
vehicle pulled over appropriately on the shoulder, as shown on the video. (Def.'s Ex. 1.)
Officer Burns approached the driver's side of the car and observed a male
operator put down halfway the rear window on the driver's side before the driver's
side window went down, which is not a NHTSA clue of impairment. Officer Burns
testified he smelled a strong odor of intoxicating beverage coming from the car; in his
report he wrote he smelled an odor of intoxicating beverage. Officer Burns asked for a
license, registration, and insurance. The operator provided the requested documents
with no difficulty.
Officer Burns identified the operator as defendant, Joshua Holland. Officer
Burns asked how many drinks defendant had had. He responded he had two vodka
drinks with a shot of vodka in each earlier that evening. Officer Burns did not ask
specifically when defendant drank the drinks. Officer Burns did not notice slurred
speech or red, bloodshot eyes and none of defendant's faculties appeared to be
impaired. Based on the admission to drinking and the odor of intoxicating beverage,
Officer Burns determined to administer field sobriety tests. He called for a back-up
officer for officer safety reasons.
Officer Burns turned off his front and side facing lights and angled the spot light
for the field sobriety tests. He requested that defendant get out of the car and walk to
the back of the car, where the road was clear and had no ice. Defendant's demeanor
2 was fine and he did not sway or stumble as he walked, as confirmed by the video.
(Def.'s Ex. 1.)
Officer Burns inquired regarding previous injuries. Defendant had no back or
leg problems and his work involved lifting heavy objects all day. He said he was
generally pretty healthy. He was not wearing contact lenses and was wearing
comfortable shoes.
Although Officer Burns has not been deemed proficient in administering the
HGN test because he had not performed ten tests outside of the Academy, he
performed the HGN test. Officer Burns did not ask whether defendant had natural
nystagmus but did not notice that. He explained the test and properly administered the
test. Defendant understood and followed the instructions. Officer Burns noted a strong
odor of intoxicating beverage while standing within a couple of feet from defendant.
Officer Burns noted two clues for each section, one for each eye. The video shows that
defendant had no difficulty standing with his arms to his sides while the HGN test was
administered.• (Def.'s Ex. 1.)
Officer Burns next demonstrated and explained the walk and turn test.
Defendant stated he understood. Defendant stood appropriately with his arms at his
sides during the instructions. Officer Burns stated he observed eight clues, including
stepping off the line, walking an incorrect number of steps, performing an improper
turn, and missing heel to toe. The video does not confirm defendant stepped off the
line. Officer Burns did not note which steps were performed improperly. Defendant's
•Officer Burns stood directly in front of defendant during the HGN test, during the instructions for the walk and turn and one-leg stand tests, and during part of defendant's performance of the one-leg stand test, which made viewing defendant difficult. (Def.'s Ex. 1.)
3 missing heel to toe cannot be seen on the video. Officer Burns demonstrated,
essentially, a three-point turn and defendant performed a two-point turn.
Officer Burns next demonstrated and explained the one-leg stand test.
Defendant stood appropriately during the instructions with his hands at his sides.
Defendant stated he understood. During the test, he put his right foot down a number
of times. The officer testified that defendant had the same difficulties when he changed
to his left foot. The video confirms that defendant was performing the test as instructed
using his left foot but the officer appears to have told defendant to stop. The video does
not confirm the officer' s testimony that defendant swayed and used his arms for
balance. There is no audio to determine whether, as the officer testified without detail,
defendant repeated numbers or had difficulty counting.
Although the video shows the officer making notes throughout his encounter
with defendant, the officer never keeps his notes because he does not see why they are
needed. He did not in his report however, detail the mistakes he testified that
defendant made during the tests and at trial could not recall specifics regarding the
defendant.
After the one-leg stand test, Officer Burns determined he had probable cause to
place defendant under arrest for OUI. Officer Burns transported defendant for an
intoxilyzer test.
CONCLUSIONS OF LAW
Stop
In order to justify a brief investigatory stop, "a police officer must have an
articulable suspicion that criminal conduct or a civil violation has occurred, is occurring,
or is about to occur, and the officer's suspicion must be ' objectively reasonable in the
totality of the circumstances."' State v. Brown, 1997 ME 90, CJ[ 5, 694 A.2d 453 (quoting
4 State v. Cusack, 649 A.2d 16, 18 (Me. 1994)). "An investigatory stop is valid when it
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CRIMINAL ACTION DOCKET NO. CR-16-1712
STATE OF MAINE
v. ORDER ON MOTION TO SUPPRESS JOSHUA HOLLAND,
Defendant
The defendant seeks to suppress evidence obtained as a result of the stop and the
arrest of defendant on 3/22/16. The defendant argues that the officer lacked reasonable
and articulable facts to justify the stop and lacked probable cause for the arrest. For the
following reasons, the motion is denied.
FINDINGS OF FACT
Officer Benjamin Burns has been employed by the Cumberland Police
Department since November 2015. Previously, he worked for the Maine Marine Patrol
for six months. He graduated from the Maine Criminal Justice Academy in May 2015.
He received OUI training, including training in standard field sobriety tests and the
intoxilyzer and participating in the wet lab exercise. He took a refresher course in field
sobriety tests at the end of 2015. At the time of the stop in question, he was deemed
proficient in field sobriety tests but not in horizontal gaze nystagmus (HGN). He has
made approximately ten OUI stops during his career.
On 3/22/16, Officer Burns was in uniform and in a marked cruiser and was
working the 4:00 p.m. to 2:00 a.m. shift. The weather was clear and cool. At a little after
10:00 p .m., he was using a dash camera and was facing oncoming traffic on Route 100.
(Def.'s Ex. 1.) He was running radar on some passing vehicles but not all of them. As
he was monitoring traffic, he observed a 2007 Subaru. He did not recall if the car was speeding. He ran the registration, which was valid and which showed the car had a
single registered owner, Elizabeth Holland. The owner had an expired driver's license.
As the car passed, Officer Burns was not able to observe the operator or to determine
whether the operator was a male or female. His testimony is confirmed by the video.
(Def.'s Ex. 1.) It was dark and he was focused on reading the registration plate and
entering that information into his computer. Officer Burns activated his lights. The
vehicle pulled over appropriately on the shoulder, as shown on the video. (Def.'s Ex. 1.)
Officer Burns approached the driver's side of the car and observed a male
operator put down halfway the rear window on the driver's side before the driver's
side window went down, which is not a NHTSA clue of impairment. Officer Burns
testified he smelled a strong odor of intoxicating beverage coming from the car; in his
report he wrote he smelled an odor of intoxicating beverage. Officer Burns asked for a
license, registration, and insurance. The operator provided the requested documents
with no difficulty.
Officer Burns identified the operator as defendant, Joshua Holland. Officer
Burns asked how many drinks defendant had had. He responded he had two vodka
drinks with a shot of vodka in each earlier that evening. Officer Burns did not ask
specifically when defendant drank the drinks. Officer Burns did not notice slurred
speech or red, bloodshot eyes and none of defendant's faculties appeared to be
impaired. Based on the admission to drinking and the odor of intoxicating beverage,
Officer Burns determined to administer field sobriety tests. He called for a back-up
officer for officer safety reasons.
Officer Burns turned off his front and side facing lights and angled the spot light
for the field sobriety tests. He requested that defendant get out of the car and walk to
the back of the car, where the road was clear and had no ice. Defendant's demeanor
2 was fine and he did not sway or stumble as he walked, as confirmed by the video.
(Def.'s Ex. 1.)
Officer Burns inquired regarding previous injuries. Defendant had no back or
leg problems and his work involved lifting heavy objects all day. He said he was
generally pretty healthy. He was not wearing contact lenses and was wearing
comfortable shoes.
Although Officer Burns has not been deemed proficient in administering the
HGN test because he had not performed ten tests outside of the Academy, he
performed the HGN test. Officer Burns did not ask whether defendant had natural
nystagmus but did not notice that. He explained the test and properly administered the
test. Defendant understood and followed the instructions. Officer Burns noted a strong
odor of intoxicating beverage while standing within a couple of feet from defendant.
Officer Burns noted two clues for each section, one for each eye. The video shows that
defendant had no difficulty standing with his arms to his sides while the HGN test was
administered.• (Def.'s Ex. 1.)
Officer Burns next demonstrated and explained the walk and turn test.
Defendant stated he understood. Defendant stood appropriately with his arms at his
sides during the instructions. Officer Burns stated he observed eight clues, including
stepping off the line, walking an incorrect number of steps, performing an improper
turn, and missing heel to toe. The video does not confirm defendant stepped off the
line. Officer Burns did not note which steps were performed improperly. Defendant's
•Officer Burns stood directly in front of defendant during the HGN test, during the instructions for the walk and turn and one-leg stand tests, and during part of defendant's performance of the one-leg stand test, which made viewing defendant difficult. (Def.'s Ex. 1.)
3 missing heel to toe cannot be seen on the video. Officer Burns demonstrated,
essentially, a three-point turn and defendant performed a two-point turn.
Officer Burns next demonstrated and explained the one-leg stand test.
Defendant stood appropriately during the instructions with his hands at his sides.
Defendant stated he understood. During the test, he put his right foot down a number
of times. The officer testified that defendant had the same difficulties when he changed
to his left foot. The video confirms that defendant was performing the test as instructed
using his left foot but the officer appears to have told defendant to stop. The video does
not confirm the officer' s testimony that defendant swayed and used his arms for
balance. There is no audio to determine whether, as the officer testified without detail,
defendant repeated numbers or had difficulty counting.
Although the video shows the officer making notes throughout his encounter
with defendant, the officer never keeps his notes because he does not see why they are
needed. He did not in his report however, detail the mistakes he testified that
defendant made during the tests and at trial could not recall specifics regarding the
defendant.
After the one-leg stand test, Officer Burns determined he had probable cause to
place defendant under arrest for OUI. Officer Burns transported defendant for an
intoxilyzer test.
CONCLUSIONS OF LAW
Stop
In order to justify a brief investigatory stop, "a police officer must have an
articulable suspicion that criminal conduct or a civil violation has occurred, is occurring,
or is about to occur, and the officer's suspicion must be ' objectively reasonable in the
totality of the circumstances."' State v. Brown, 1997 ME 90, CJ[ 5, 694 A.2d 453 (quoting
4 State v. Cusack, 649 A.2d 16, 18 (Me. 1994)). "An investigatory stop is valid when it
is 'supported by specific an d articulable facts which, taken as a whole and together with
the rational inferences from those facts, reasonably warrant the police intrusion.'" See
State v . Taylor, 1997 ME 81, 9I 9, 694 A.2d 907 (quoting State v. Hill, 606 A.2d 793, 795
(Me. 1992)). "'The reasonable suspicion standard requires less than probable cause that
a crime was being committed, but more than speculation or an unsubstantiated
hunch."' State v. Sampson, 669 A.2d 1326, 1328 (Me. 1996) (quoting State v. Caron, 534
A.2d 978, 979 (Me. 1987)). "The facts supporting an investigatory search need not be
based on the officer's personal observations, but can be provided by an informant if the
information carries sufficient 'indicia of reliability."' State v. Cushing, 602 A.2d 1169,
1170 (Me. 1992); see also State v. Burgess, 2001 ME 117, 9I 9, 776 A.2d 1223.
At the time Officer Burns pulled defendant over, he had articulable suspicion
that the car's registered owner, Elizabeth Holland, was driving with an expired driver's
license. See State v. Tozier, 2006 ME 105, 9I 9, 905 A.2d 836 ("[I]t is reasonable to suspect
that the driver of a vehicle is its registered owner, absent indications to the contrary.").
The fact that defendant was of a different gender than Ms. Holland does not render the
stop invalid because Officer Burns did not learn this until after he had pulled defendant
over. See State v. H ill, 606 A.2d 793, 795 (Me. 1992).
Officer Burns's decision to continue the investigation after learning that
defendant was not Ms. Holland was permissible if it was "reasonably related in scope
to the circumstances which justified the interference in the first place." Id. (quoting
Terry v. Ohio, 392 U.S. 1, 20 (1968)). "This reasonableness determination involves a
'weighing of the gravity of the public concerns served by the seizure, the degree to
which the seizure advances the public interest, and the severity of the interference with
individual liberty."' Id. (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)). Once Officer
5 Burns smelled an odor of intoxicating beverage coming from the car, and defendant
admitted to drinking, the gravity of protecting the public from impaired drivers
justified the relatively minimal intrusion of asking defendant for his license, registration
and insurance and performing the field sobriety tests. See hl; State v. Gulick, 2000 ME
170,
Arrest
In order to justify an arrest, an officer must have probable cause to believe the
defendant's senses were "affected to the slightest degree, or to any extent," by the
alcohol consumed. See State v. Webster, 2000 ME 115, <][ 7, 754 A.2d 976.
The court does not consider defendant's performance on the HGN test in this
analysis. HGN results are admissible only if a proper foundation has been laid. State v.
Taylor, 1997 ME 81,
the officer or administrator of the HGN test is trained in the procedure and the test was
properly administered." Id. In Taylor, the officer was sufficiently trained because he
had taken a three-day course and had "tested numerous subjects both in the field and in
controlled situations." Id.
that he was "properly certified in drug recognition pursuant to statute." 1997 ME 228,
CJICJI 4, 18, 704 A.2d 361. In contrast, here, Officer Burns had made approximately ten OUI
stops in his career, and he was not proficient in administering the HGN test because he
had not performed ten tests outside of the Academy.
Even without considering defendant's performance on the HGN test, probable
cause existed to justify the arrest. Officer Burns noticed an odor of intoxicating beverage
coming from the car, and while he was standing within a couple of feet from defendant.
Defendant admitted that he had had two vodka drinks earlier that evening. Based on
the smell of an intoxicating beverage, a reasonable conclusion is that the consumption
6 of alcohol was close in time to the stop and included more than two drinks. Although
the video does not confirm all of Officer Burns's testimony, it does confirm that
defendant performed an imp~oper turn and walked an incorrect number of steps
during the walk and turn test. Defendant put his right foot down a number of times
during the one-leg stand test. This evidence was sufficient to establish probable cause.
See Webster, 2000 ME 115, <[<[ 7-9, 754 A.2d 976 (probable cause standard for arrest for
om "has a very low threshold."). The entry is
Defendant's Motion to Suppress is DENIED.
Date: October 21, 2016