State of Maine v. Leonard

• Court: Superior Court of Maine
• Decided: May 17, 2016
• Docket: CUMcr-15-4619
• Status: Unpublished

Opinion

STATE OF MAINE UNIFIED CRIMINAL DOCKET CUMBERLAND, SS. PORTLAND CUMDC-CR-15-4619

STATE OF MAINE ) ) ) v. ) MOTION TO SUPPRESS ) MICHAEL LEONARD ) 1---'

)

NOW COMES Defendant, Mr. Michael Leonard, by and through counset-Devens M. ; 1 Hamlen of The H&H LawCenter, and requests that this Honorable Coprt suppress all evidence arrising from the illegal seizure on May 15, 2015 as it was obtained in violation of Article 1 section 5 of the Maine State Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.

As grounds for this Motion, Mr. Leonard respectfully states:

FACTS

1. The State had charged Mr. Leonard with one Class P Misdemeanor of Operating

Under the Influence and one Class E Misdemeanor of Improper Plates.

2. Unless otherwise indicated, according to reports from Cumberland County

Sheriffs Deputy Nicholas Mangino as well as discovery provided by the State, the following

events occurred on May 15, 2015:

3. At approximately 12:45 in the morning Deputy Mangino was on patrol. As

Deputy Mangino drove north on Route 35, he came upon a tan sedan driving north.

1 4. While Deputy Mangino drove behind the car, he saw the vehicle cross the yellow

line two times. He also saw the car touch the white fog line twice. The second time the car

touched the fog line, it traveled on the fog line for a short distance.

5. Deputy Mangino turned on his blue lights and pulled the car over. The driver was

later identified as Michael Leonard. After conducting some field sobriety tests and making a few

other observations, Deputy Mangino arrested Mr. Leonard for Operating Under the Influence.

LEGAL ARGUMENT

6. Part I, Article 5 of the Maine Constitution provides 'that "[t]he people shall be

secure in their houses, papers, and possessions from all unreasonable searches and seizures." Part

1, Article 5 of the Maine Constitution as well as 4th Amendment of the United States

Constitution are implicated when a seizure occurs. State v. Cilley, 1998 ME 34 at~ 5.

7. "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 citiz\;!n' such that he is not free to

walk away." State v. Preble, 430 A.2d 553, 555 (Me.1981) (quoting U.S. v. Viegas, 639 F.2d 42,

44 (1st Cir.1981)); see also, U.S. v. Mendenhall, 446 U.S. 544 (1980) (holding that a when a

reasonable person feels as if they are not free to leave, a seizure occurs). This is an objective r

standard and the subjective belief of the officer is not relevant. Id. at 555 n.6.

8. A warrantless seizure is per se unreasonable unless it is accompanied by an

objective reasonable articulable suspicion that criminal conduct has occurred or is about to occur.

State v. Whitney, 2012 ME 105; State v. Langlois, 2005 ME 3.

9. An investigatory stop is a valid exception to the wap-ant requirement only if two

conditions are met, first "the officer must in fact have had an articulable suspicion of criminal

2 conduct" and second "the officer' s suspicion must be objectively reasonable in the totality of the

circumstances." State v. Carnevale, 598 A.2d 746, 748 (Me. 1991). A mere hunch is not enough.

"The officer's inarticulate hunch cannot be converted into a 'reasoqable suspicion' by second

thoughts developed at the suppression hearing. " State v. Chapman~494 A.2d 314, 317 (Me.

1995). The police must possess actual suspicion and "[a] finding that a reasonable person could

have had a reasonable suspicion on the given facts is not alone enqugh." Id.

10. Deputy Mangino did not possess reasonable articulable suspicion when he seized

Mr. Leonard. The reasons that Deputy gave for the seizure, crossing the yellow line twice and I touching the fog line, do not add up to reasonable articulable suspicion that criminal activity was

afoot.

11 . In stating that "[a] vehicle must be operated as nearly as practical entirely within a

single lane" the legislature has recognized that incidental lane violations are mistakes made by

all drivers from time to time. 29-A M.R.S.A § 2051 (1). Likewise, courts across the country have

recognized that these types of incidental violations alone are not a sufficient basis to stop a

vehicle. See~' State v. Tague, 74 CrL 391 (Iowa 2004) (observation that tires barely crossed

the left edge line held insufficient to justify stop on suspicion of lane control violation or

impaired driving, and not justifiable under community caretaking exception); U.S. v. Colin, 314

F. 3d 439 (9th Cir. 2002) (drift onto fog line for 10 seconds then a drift to the left traveling on I yellow line for 10 seconds did not give officer probable cause to stop); U.S. v. Saldana, 55 Fed.

Appx. 424 (2003 ); Rowe v. State, 769 A.2d 879, 69 CrL 89 (Md. 2001) (Brief crossings of a

road's right edge-line did not provide probable cause to stop a driver for violating the single-lane

law, Md. Code Section 21-309(b)); Frasier v. Driver, 172 Ore. App. (2001) (lane travel statute

requires more for a violation than a momentary crossing or touching of an edge or lane line);

3 U.S. v. Gregory, 79 F. 3d 973 (10th Cir. 1996) (an isolated incident of crossing two feet into the

emergency lane on an interstate was not a violation); Sledge v. State, 239 Ga. App. 301 (1999)

(upholding traffic stop under the lane travel statute where involved changing lanes without

signaling, straddling lanes); Crooks v. State, 710 So.2d 1041 (Fla. App. 1998); Hernandez v.

State, 983 S.W.2d 867 (Tex. App. 1998); Maddox v. State, 227 Ga. App 602 (1997) (upholding

traffic stop where driving involved weaving across lanes of traffic onto the shoulder); State v.

Cerny, 28 S.W. 3d 796 (Tex. App. 2000); State v. Tarvin, 972 S.W. 2d 910 (Tex. App. 1998)

(there must be more than mere touching or going over a fog line; tpere must be an indication of

erratic or unsafe driving); State v. Lafferty, 291 Mont. 157, 967 P.2d 363 (1998) (touching or

crossing fog line does not justify a stop unless vehicle operated erratically); State v. Caron, 534

A.2d 978 (Me. 1987) (stop may not be based on several brief, incidental lane violations that did I not present a traffic safety issue); U.S . v Smith, 799 F. 2d 704 (11th Cir. 1986) (crossing fog line

by six inches not grounds for stop)

12. Because the purpose oflane control statutes is vehicle safety, "[a] vehicle's brief,

one time straddling of the center line of an undivided highway is a common occurrence and, in

the absence of oncoming or passing traffic, without erratic operation or other unusual

circumstances, does not justify an intrusive stop by a police officer." Caron, 534 A.2d at 979.

13 . In the present case, Deputy Mangino only reports two actual lane violations.

Deputy Mangino did not report any oncoming traffic or other potential safety issues with Mr.

Leonard ' s driving. See generally, Id.; State v. Lafferty, 291 Mont. 157, 967 P.2d 363 (1998);

State v. Tarvin, 972 S.W. 2d 910 (Tex. App. 1998). What is more, portions of Route 35 contain

significant potholes and other road damage. It would be incumbent on a driver, in the interest of

safety, to drive in a way as to avoid the potholes and other damage. 23 M.R.S.A Chap. 313 .

4 14. Indeed there is even a law that governs municipalities' responsibility with respect

to potholes. 23 M.R.S.A Chap. 313. As described on the State of Maine's website:

In Maine law under 23 MRSA, Chapter 313, which covers local highway law, it says "Highways, town ways and streets legally established shall be opened and kept in repair so as to be safe and convenient for travelers with motor vehicles. " This law is commonly called the "pothole law" or the "24 hour law" by many Mainers. The interpretation of this can be quite broad. It is referenced when someone claims their vehicle was damaged because of a pothole or similar road defect such as a defective culvert, or muddy road, or a "deadly fixed object" (DFO) such as heavy mailbox posts or other solid obj ects in the town right-of-way.

http: //www.maine.gov/mdot/csd/mlrc/technical/legal/ defectlaw.htm. (original emphasis).

15. Given that the overall focus of 29-A M.R.S.A § 2051 is driver safety and 23

M.R.S.A Chap. 313 strongly suggests it would be unsafe to travel through rough roads and

potholes, Mr. Leonard' s minor, incidental lane violations does not rise to the level ofreasonable

articulable suspicion that he committed a crime.

CONLCUSION

16. Because the police unlawfully seized Mr. Leonard, the fruit of the poisonous tree

doctrine requires the exclusion from trial of evidence derivatively obtained through the violation

of Mr. Leonard' s constitutional rights. Segura v. U.S. 468 U.S . 796, 804 (1984). In this case, all

evidence obtained by the police was obtained as a result of the illegal seizure of Mr. Leonard.

WHEREFORE, the defendant, Ms. Michael Leonard resp~ctfully requests that this Comi:

A) Suppress any evidence the police illegaqy obtained through their illegal seizure and warrantless search;

B) Hold a hearing and hear evidence on this Motion;

C) Issue a written order of facts and law; and

5 D) Grant such further relief as serves justice.

Attorney for the Defendant

H&H LawCenter, P.A. 22 Monument Sq., Stiite 404 PO Box 4784 Portland, ME 04112 207 .221.6363 rnheminway@hhlawcenter.com

CERTIFICATE OF SERVICE

I, Devens M. Hamlen, do hereby certify that on this date, I have delivered a copy of the foregoing attached Motion to Suppress to:

Cumberland County District Attorney' s Office 142 Federal Street · Portland, ME 04101

Dated: j (z t ( 1£ Devens M. Hamlen, Esq. Maine Bar No.: 9973

6 STATE OF MAINE UNIFORM CRIMINAL DOCKET CUMBERLAND, ss . Of t"~ ~\N~ DOCKET NO . CR-15-4619 S1P..1s SS C\e{V.:S ow.ce "'umoeT1a11u, ' v . ')(')("' STATE OF MAINE Mti.R \ ti [..U \I)

v. RE.CE.\\JE.O ORDER ON MOTION TO SUPPRESS MIKE A. LEONARD

Mike Leonard ("Leonard") filed a motion to suppress, raising a single issue

derived from the stop of his vehicle by Deputy Patrolman Nicholas Mangino ("Deputy"

or "Mangino") of the Cumberland County Sheriffs Office. Leonard contends that the

stop was not justified by an objectively reasonable suspicion of criminal conduct:

Leonard claims that he was just trying to maneuver his car so that he could avoid

potholes and cracks on Route 35 in Naples. Leonard does not deny that he may have

drove onto or crossed the yellow line or white fog line in the roadway.

On May 15, 2015 at 12:45 am, Deputy Mangino patrolled Route 35 in Naples. He

observed a tan vehicle cross the yellow center line two times and "cross onto the white

fog line with passenger side tires two times," and on the second cross onto the fog line,

he continued for a short time over the fog line before moving back into the travel lane.

Mangino stopped Leonard' s vehicle for these four line violations. Mangino does not

recall whether Leonard crossed a single or double yellow line or how long Leonard

traveled on the yellow or fog lines, or how far over the fog lines Leonard traveled. He did

not observe any notable eradicate driving. The cruiser did not have a cam recorder.

Mangino does not remember where he pulled Leonard over on Route 35. Deputy

Mangino also does not remember any obstructions on the road, but he does remember that he did not have to maneuver his vehicle to avoid any obstructions in the road. The

court finds Mangino's testimony at the suppression hearing credible.

Leonard testified that he was driving that night, taking his friends home fo llowing

a dart tournament. They stopped over at Brays Pub since this was the end of a twelve­

week tournament and they would not see each other again until the fall. Leonard had just

bought his car. He states, he was driving safely to avoid the potholes. He was trying to

follow the road, but it was extremely bumpy with potholes and cracks. Leonard admitted

that he drove on the fog line and yellow lines to avoid holes in the road. The court finds

that Leonard's testimony was not specific and detailed enough for the court to find him

credible.

DISCUSSION

"A stop is justified when an officer's assessment of the existence of specific and

articulable facts indicating a possible violation of law or a public safety risk is objectively

reasonable considering the totality of the circumstances." State v. Simmons, 2016 ME 49,

18 (quoting State v. Connor, 2009 ME 91, 110, 997 A. 2d 1003). "[T]he threshold for

demonstrating an objectively reasonable suspicion necessary to justify a vehicle stop is

low ... The suspicion need only be more than a speculation or an unsubstantiated

hunch." Id. (quoting State v. LaForge, 2012 ME 65, 110, 43 A. 3d 961). Defendant

contends

Deputy Mangino had reasonable articulable suspicion that Leonard's driving on

the yellow and fog lines at 12:45 a.m. supported a conclusion that either the driver was

impaired, committed a traffic violation, or created a safety issue. "A vehicle must be

operated as nearly as practical entirely within a single lane." 29-A M.R.S. § 2051(1).

2 Violation of a traffic infraction witnessed by a law enforcement officer is sufficient

justification for the stop of a vehicle. See State v. Webber, 2000 ME 168, if7, 759 A.2d

724. Although this is not the strongest case, it contains more factual circumstances than

in State v. Caron, 534 A.2d 978, 979 (Me. 1987), where a brief straddling of the

centerline, without other indicia, did not support the officer' s subjective suspicion that

defendant was either intoxicated or asleep. Defendant argues that these types of

incidental lane violations are mistakes made by drivers from time to time and courts

across the country have found these incidental violations alone are not a sufficient basis

to stop a vehicle. Citing cases across the country and quoting Caron does not support

defendant's argument.

In analyzing whether Mangion's observations satisfy constitutional standards for

stopping Leonard's vehicle, "there is no mechanical standard for reviewing a court's

conclusions on whether an officer's suspicion was objectively reasonable." Porter, 2008

ME 175, if9, 960 A.2d 321. The Law Court stated, there is no precise number of line

touchings or crossings by a vehicle operator that delineates a constitutionally justified

stop from an unjustified one." The threshold is low: it "is considerable less than proof of

wrongdoing by a preponderance of the evidence," Id. at if9, and "need not arise to the

level of probable cause." State v. Sylvain, 2004 ME 5, ,r17, 814 A.2d 984. Application of

the Law Court's standard "properly 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. " Porter, 2008 ME 175, if9 (quotation marks and citations omitted). Reviewing

similar factual situations, the Law Court upheld the stop in State v. Pelletier, 54 l A. 2d

1296, 1296-97 (Me.1988) (The officer followed defendant's vehicle for four to five miles

,, .) and stopped it after observing the vehicle cross the centerline three times and drift onto

the shoulder once over the distance.); Porter, 2008 ME 175, 112-3, 12 (Within a quarter

of a mile, the defendant drove onto the fog line, then over the centerline by a foot, and

then onto the center and fog lines again.); State v. LaForge, 2012 ME 65, 43 A.3d 961

(The officer saw defendant drive onto the centerline twice, then later completely cross the

fog line with his passenger-side tires twice, and then completely cross the centerline with

his driver-side tires twice more.) In each of these case, the officers' observations gave

rise to an objectively reasonable suspicion of impaired driving. In each case, there was

more than bare speculation or an unsubstantiated hunch. Here the circumstances,

including the early morning hour of the stop, and the failure to stay within a single lane

and crossing twice onto the centerline and the fog lines justify a stopped based on

reasonable articulable suspicion. 1

Deputy Mangino's suspicion was objectively reasonable and therefore the stop of

Leonard' s vehicle was reasonable under the Fourth Amendment. See State v. Porter,

2008 ME 175, 118, 11-12, 960 A.2d 321.

The entry is:

Motion to Suppress is DENIED.

Date: May17,2016 ~/Q. ~ Qsfc}[A. Wheeler, ARJ Maine Superior Court

1 As argued by the State, the Deputy's articulated reason for stopping Mangino may also support a finding that the Deputy was motivated by a public safety concern, in light of the time of the stop and the failure to stay within a single lane. Safety reasons alone can justify a stop if based on specific and articulable facts. See State v. Pinkham, 565 A.2d 318,319(Me.1989).