State of Maine v. MacGillivary
This text of State of Maine v. MacGillivary (State of Maine v. MacGillivary) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
STATE OF MAINE SUPERIOR COURT
RECEIVED ay CRIMINAL ACTION KENNEBEC, ss. HSU NESEC supe FILED DOCKET NO. CR-05- 50, VPERIOR COURT ) . AY ke, tA x heyy STATE OF MAINE Vv. JACOB MacGILLIVARY, bd § Defendant Jun = 200
Before the court is the the defendant’s Motion to Suppress. Matthew Nichols,
Esq. for defendant and Paul Rusha, Assistant District Attorney for the State of Maine. Facts
Waterville Police Officer Matthew Libby was on patrol at 1:30 a.m. on October 31, 2004. The police officer observed a Jeep Cherokee stopped at a red light at an intersection. When the vehicle took a right turn the officer observed the vehicle “accelerating heavily, with its tires spinning.” The police officer indicated that the pavement was wet on the evening in question. The police officer also indicated that he thought the driving was erratic because the “spinning tires” was not normal behavior. He stated he was concerned about the rate of speed of the vehicle but never indicated that the speed exceeded the posted speed limit or was imprudent under the
circumstances. The police officer indicated that he pursued the vehicle and it was his
intention to detain the vehicle. Legal The law in this area is quite clear. An investigatory stop is justified when the officer has “an articulable suspicion that criminal conduct has taken place, is occurring
or imminently will occur.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1969). The issue in this case is whether the police officer had articulable suspicion warranting an investigatory stop. Discussion
This court finds that the police officer failed to articulate any suspicion that criminal conduct had taken place, was taking place, or was imminently going to take place. The acceleration, though noted as heavy, was not in violation of any traffic law. It did not exceed the speed limit and was not imprudent under the circumstances. Furthermore, the spinning of the tires on wet pavement is not in violation of any traffic offense. Title 29-A M.RS.A. § 2079 entitled “Unnecessary Noise” states that — acceleration may not be unnecessarily made so as to cause a “harsh and objectionable noise.” The police officer never mentioned that the acceleration was harsh or objectionable.
This case is distinguishable from the case of State v. Buxton, 687 A.2d 227 (1996). A police officer in the Buxton case had a suspicion that the driver might be intoxicated. He observed the fact that the driver was substantially below the speed limit and both his passenger side tires were off the roadway for a distance of 150 feet.
In this case, the police officer did not state that he had any suspicion that the driver was intoxicated. He had suspicion that the driver may have violated 29-A M.RS.A. 2079 — unnecessary noise. However, by his own testimony, he did not observe the necessary elements to stop one for an unnecessary noise violation, i.e, harsh and objectionable noise.
Even if he suspected an intoxicated driver, which he did not, spinning tires on a
wet pavement and accelerating heavily without exceeding the speed limit or being
imprudent u Pp nder the circumstances does not constitute erratic or abnormal driving
such that he would bei sh ied in heing gs SDI1C S f nN nt C e river eutii ital be wold bemsnan ici 1 i } nedgin bP eng SUSPICIOUS oF an intox1 cated dri er. Since this court finds that the police officer failed to articulate any suspicion as to any criminal conduct, the defendant’s motion to suppress is hereby GRANTED. All
evidence obtained subsequent to the stop is hereby suppressed.
)
Dated: March tle | 2005 hi] SB.
Josep ‘Jaber Justfe7 Superior Court
STATE OF MAINE
“vg
JACOB A MACGILLIVARY
20 CENTER STREET APT #1 WATERVILLE ME 04901
SUPERIOR COURT KENNEBEC, ss.
DOB: 11/23/1976
Attorney: MATTHEW NICHOLS NICHOLS & WEBB PA 110 MAIN ST, SUITE 1520 SACO ME 04072 RETAINED 12/13/2004
Filing Document: UNIFORM SUMMONS AND COMPLAINT Filing Date: 12/10/2004
DOCKET RECORD
State's Attorney: TRACY DEVOLL
Major Case Type: MISDEMEANOR (CLASS D,E)
Charge (s) 1 FAILURE TO REGISTER VEHICLE 10/31/2004 WATERVILLE Seq 9142 29-A 351(1) (B) Class E
LIBBY / WAT
Docket Events:
01/21/2005 Charge(s): 1 TRANSFER - TRANSFER FOR JURY TRIAL EDI ON 01/21/2005 @ 20:01
TRANSFERRED CASE: SENDING COURT CASEID WATDCCR200402531 FILING DOCUMENT - UNIFORM SUMMONS AND COMPLAINT FILED ON 12/10/2004
Charge(s): 1 . HEARING - ARRAIGNMENT SCHEDULED FOR 12/15/2004 @ 8:30
NOTICE TO PARTIES/COUNSEL Charge(s): 1
HEARING - ARRAIGNMENT WAIVED ON 12/15/2004 Party(s): JACOB A MACGILLIVARY ATTORNEY - RETAINED ENTERED ON 12/13/2004
Attorney: MATTHEW NICHOLS Charge(s): 1 PLEA - NOT GUILTY ENTERED BY COUNSEL ON 12/15/2004
Charge(s): 1 TRANSFER - TRANSFER FOR JURY TRIAL GRANTED ON 01/21/2005
Charge(s): 1 TRANSFER - TRANSFER FOR JURY TRIAL REQUESTED ON 12/15/2004
MOTION - OTHER MOTION FILED BY DEFENDANT ON 12/15/2004
MOTION FOR PREPARATION OF REPORTS BY EXPERT WITNESSES MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 12/15/2004
Page. 1 of 2
Docket No AUGSC-CR-2005-00050 01/26/2005
02/07/2005
03/09/2005
03/16/2005
JACOB A MACGILLIVARY AUGSC-CR-2005-00050
DOCKET RECORD OTHER FILING - OTHER DOCUMENT FILED ON 12/15/2004
4 REQUESTS FOR DISCOVERY; NOTICE TO PRODUCE TESTIMONY FILED BY NICHOLS Charge(s): 1
FINDING - TRANSFER FOR JURY TRIAL TRANSFERRED ON 01/21/2005 AUGSC
Charge(s): 1
TRANSFER - TRANSFER FOR JURY TRIAL RECVD BY COURT ON 01/24/2005
RECEIVED FROM WATERVILLE DISTRICT COURT DOCKET NO: CR-04-2531 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 03/09/2005 @ 9:00
NOTICE TO PARTIES/COUNSEL HEARING MOTION FOR DISCOVERY SCHEDULED FOR 03/09/2005 @ 9:00
NOTICE TO PARTIES/COUNSEL HEARING - MOTION EXPERT WITNESS REPORT SCHEDULED FOR 03/09/2005 @ 9:00
HEARING OTHER MOTION SCHEDULED FOR 03/09/2005 @ 9:00 MOTION TO PRODUCE TESTIMONY
HEARING - MOTION TO SUPPRESS HELD ON 03/09/2005
JOSEPH M JABAR , JUSTICE
Attorney: MATTHEW NICHOLS
DA: BRAD GRANT Reporter: DIANE MCMANUS Defendant Present in Court
STATE WITNESSES: MATTHEW LIBBY
MOTION - MOTION TO SUPPRESS UNDER ADVISEMENT ON 03/09/2005 JOSEPH M JABAR , JUSTICE MOTION - MOTION TO SUPPRESS GRANTED ON 03/16/2005
JOSEPH M JABAR , JUSTICE COPY TO PARTIES/COUNSEL
A TRUE COPY
ATTEST:
Clerk STATE OF MAINE SUPERIOR COURT
vs KENNEBEC, ss.
JACOB A MACGILLIVARY Docket No AUGSC-CR-2005-00051 20 CENTER STREET APT #1
WATERVILLE ME 04901 DOCKET RECORD
DOB: 11/23/1976 Attorney: MATTHEW NICHOLS State's Attorney: TRACY DEVOLL NICHOLS & WEBB PA 110 MAIN ST, SUITE 1520 SACO ME 04072 , RETAINED 12/13/2004
Filing Document: CRIMINAL COMPLAINT Major Case Type: MISDEMEANOR (CLASS D,E) Filing Date: 12/10/2004
Charge (s) 1 OPERATING UNDER THE INFLUENCE-1 PRIOR 10/31/2004 WATERVILLE Seq 9879 29-A 2411(1-A) (B) (1) Class D
01/21/2005 Charge(s): 1 TRANSFER - TRANSFER FOR JURY TRIAL EDI ON 01/21/2005 @ 20:01
TRANSFERRED CASE: SENDING COURT CASEID WATDCCR200402532 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 12/10/2004
Charge(s): 1 HEARING - ARRAIGNMENT SCHEDULED FOR 12/15/2004 @ 8:30
NOTICE TO PARTIES/ COUNSEL Charge(s): 1 HEARING - ARRAIGNMENT WAIVED ON 12/15/2004
Party(s): JACOB A MACGILLIVARY ATTORNEY - RETAINED ENTERED ON 12/13/2004
Attorney: MATTHEW NICHOLS Charge(s): 1 PLEA - NOT GUILTY ENTERED BY COUNSEL ON 12/15/2004
Charge(s): 1 TRANSFER - TRANSFER FOR JURY TRIAL GRANTED ON 01/21/2005
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