· ...! , '
STATE OF MAINE SUPERIOR COURT CRIMINAL ACTION CUMBERLAND, ss. Docket No. CR-p7-912 / w5f> --C\..\~\\- \ (d9 f 0 D' ~)
STATE OF MAINE,
v. DECISION
FREDERICK L. STUART JR., 'JONAlD L. GARBR.fCf-\T ! AW L1BR'" Defendant. JAN 1 5 2008 FINDINGS
L On February 13, 2007 at 7:30 p.m., Officer Robert Ryder received a dispatch that a
concerned citizen was following a possible drunk. driver on Stroudwater Street in
Portland.
2. The concerned citizen, who identified himself as William Briggs, reported to
dispatch that the possible OUI was swerving over the centerline.
3. Mr. Briggs reported that the vehicle he was following was a pickup and he
reported the license plate number.
4. Mr. Briggs reported the suspect as turning on to Forest Street and then on to
Rochester Street.
5. Mr. Briggs reported that he himself was operating a small Volkswagen type car.
6. Dispatch forwarded Mr. Briggs' reports to Officer Ryder as they were received
and Officer Ryder adjusted his route accordingly.
7. Officer Ryder turned onto Rochester Street. He saw a car fitting the description
of Mr. Briggs' car slowing down by a stopped pickup that fit the description
forwarded to Officer Ryder shortly before.
8. The suspect pickup still had its brake lights on and they flashed off as Officer
Ryder approached. 9. The suspect pickup was parked in a parking area but on the wrong side of the
street facing in the opposite direction of the travel lane.
10. Officer Ryder activated his blue lights.
DISCUSSION
Mr. Stuart argues that Officer Ryder did not have reasonable, articulable
suspicion to stop his truck. Mr. Stuart cites State v. LaFond, 2002:ME 124, 802 A.2d 425;
Alabama v. White, 496 U.S. 325 (1990); and Florida v. ].L, 529 U.s. 266 (2000). Mr. Stuart
argues that stopping the opposite way in a parking space, which was the only evidence
personally observed by Officer Ryder, did not sufficiently corroborate the tip from Mr.
Briggs.
All of the cases cited by Mr. Stuart are inapplicable. They all deal with
anonymous tips. In this case the tip was not anonymous. The concerned citizen gave
his name as William Briggs. He reported the type of vehicle Mr. Stuart was driving and
the plate number. Mr. Briggs described his own car. We know how Mr. Briggs gained
his information concerning erratic operation because he reported that he was following
Mr. Stuart. Mr. Briggs reported the route Mr. Stuart was taking and that was
corroborated. Mr. Stuart was taking his foot off the brake as Officer Ryder observed
Mr. Briggs slowing down by Mr. Stuart's truck. By giving his name, Mr. Briggs
indicated his willingness to take responsibility for the information he was providing to
the police. Mr. Briggs' information alone would be sufficiently reliable to justify a stop.
Officer Ryder's observation that Mr. Stuart had parked opposite to the flow of traffic
adds to the indicia of impairment.
Mr. Stuart next argues that Mr. Briggs' reports to the dispatch are hearsay. He
further argues that the rules of evidence apply to motions to suppress.
2 The second point may well be true. The first point does not fare so well and not
only because all federal and state courts have for decades authorized the use of second
hand reports in determining articulable suspicion and probable cause.
Second-hand information is not hearsay unless it is being offered to prove the
truth of the matter asserted. In Fourth Amendment cases the issue is not whether the
second-hand information is true. The issue is whether it was reasonable for the officer
to rely on the facts he relied on. Truth will come later.
For the above-stated reasons, the clerk will make the following entry on the
docket by reference:
Defendant Frederick Stuart Jr.'s motion to suppress is denied in all respects.
DATED: November Lq ,2007
William S. Brodrick Active Retired Justice, Superior Court
3 STATE OF MAINE SUPERIOR COURT vs CUMBERLAND, ss. FREDERICK L STUART, JR Docket No PORSC-CR-2007-00912 76 LAND OF NOD ROAD WINDHAM ME 04062 DOCKET RECORD
DOB: 06/26/1948 Attorney: MICHAEL WHIPPLE State's Attorney: STEPHANIE ANDERSON THOMAS F HALLETT LAW OFFICES PA 36 UNION WHARF PO BOX 7508 PORTLAND ME 04112 RETAINED 02/22/2007
Filing Document: CRIMINAL COMPLAINT Major Case Type: MISDEMEANOR (CLASS D,E) Filing Date: 03/20/2007
Charge(s)
1 OPERATING UNDER THE INFLUENCE 02/13/2007 WESTBROOK Seq 9878 29-A 2411(1-A) (A) Class D RYDER / WES
Docket Events:
04/10/2007 Charge(s): 1 TRANSFER - TRANSFER FOR JURy TRIAL EDI ON 04/10/2007 @ 18:01
TRANSFERRED CASE: SENDING COURT CASEID PORDCCR200702319 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 03/20/2007 JAMES TURCOTTE, ASSISTANT CLERK Charge(s): 1 HEARING - ARRAIGNMENT SCHEDULED FOR 04/09/2007 @ 8:30 in Room No. 1
NOTICE TO PARTIES/COUNSEL 847 04/10/2007 Charge(s): 1 HEARING - ARRAIGNMENT WAIVED ON 04/09/2007
409 Party(s) : FREDERICK L STUART JR ATTORNEY - RETAINED ENTERED ON 02/22/2007
Attorney: MICHAEL WHIPPLE Charge(s): 1 TRANSFER - TRANSFER FOR JURY TRIAL REQUESTED ON 02/22/2007 JAMES TURCOTTE, ASSISTANT CLERK Charge(s): 1 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 02/22/2007 JAMES TURCOTTE, ASSISTANT CLERK Charge(s): 1 MOTION - MOTION TO SUPPRESS EVIDENCE FILED BY DEFENDANT ON 02/22/2007 JAMES TURCOTTE, ASSISTANT CLERK Charge(s): 1 PLEA - NOT GUILTY ENTERED BY COUNSEL ON 04/09/2007
Page 1 of 3 Printed on: 11/30/Z007 FREDERICK L STUART, JR PORSC-CR-2007-00912 DOCKET RECORD 409 Charge ( s): 1 TRIAL - BENCH SCHEDULED FOR 06/12/2007 @ 10:30 in Room No. 1
NOTICE TO PARTIES/COUNSEL 409 Charge(s): 1 TRIAL - BENCH NOT HELD ON 04/09/2007
Charge(s): 1 FINDING - TRANSFER FOR JURY TRIAL TRANSFERRED ON 04/10/2007 DEBRA SOUBBLE, ADMINISTRATIVE CLERK PORSC 04/13/2007 Charge(s): 1 TRANSFER - TRANSFER FOR JURY TRIAL RECVD BY COURT ON 04/10/2007 BETHANY RODERIGUE, ASSISTANT CLERK-E DOCKET ENTRIES RECEIVED FROM 9TH DISTRICT COURT (07-2319) NO APPEARANCE BOND FILED 06/13/2007 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 07/05/2007 @ 11:00 DARCEY EMERY, ASSISTANT CLERK NOTICE TO PARTIES/COUNSEL 06/29/2007 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 06/27/2007
MRP 06/29/2007 MOTION - MOTION TO CONTINUE GRANTED ON 06/29/2007 THOMAS E DELAHANTY II, JUSTICE COPY TO PARTIES/COUNSEL RESCHEDULE FOR FIRST AVAILABLE DATE AFTER 30 DAYS AKL 06/29/2007 HEARING - MOTION TO SUPPRESS CONTINUED ON 06/29/2007 THOMAS E DELAHANTY II, JUSTICE AKL 07/24/2007 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 08/10/2007 @ 10:00 in Room No. 7 WILLIAM BRODRICK, JUSTICE NOTICE TO PARTIES/COUNSEL SR 07/24/2007 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 07/24/2007
07/24/2007 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR oa/10/2007 @ 10:00 in Room No. 7 WILLIAM BRODRICK, JUSTICE NOTICE TO PARTIES/COUNSEL SR 07/24/2007 HEARING - MOTION FOR DISCOVERY NOTICE SENT ON 07/24/2007
oa/13/2007 HEARING - MOTION TO SUPPRESS SCHEDULED FOR oa/16/2007 @ 11:00 in Room No. 7 WILLIAM BRODRICK, JUSTICE NOTICE TO PARTIES/COUNSEL AKL oa/13/2007 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 08/13/2007
AKL oa/22/2007 Charge(s): 1 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 10/04/2007 @ 11:00 in Room No.
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STATE OF MAINE SUPERIOR COURT CRIMINAL ACTION CUMBERLAND, ss. Docket No. CR-p7-912 / w5f> --C\..\~\\- \ (d9 f 0 D' ~)
STATE OF MAINE,
v. DECISION
FREDERICK L. STUART JR., 'JONAlD L. GARBR.fCf-\T ! AW L1BR'" Defendant. JAN 1 5 2008 FINDINGS
L On February 13, 2007 at 7:30 p.m., Officer Robert Ryder received a dispatch that a
concerned citizen was following a possible drunk. driver on Stroudwater Street in
Portland.
2. The concerned citizen, who identified himself as William Briggs, reported to
dispatch that the possible OUI was swerving over the centerline.
3. Mr. Briggs reported that the vehicle he was following was a pickup and he
reported the license plate number.
4. Mr. Briggs reported the suspect as turning on to Forest Street and then on to
Rochester Street.
5. Mr. Briggs reported that he himself was operating a small Volkswagen type car.
6. Dispatch forwarded Mr. Briggs' reports to Officer Ryder as they were received
and Officer Ryder adjusted his route accordingly.
7. Officer Ryder turned onto Rochester Street. He saw a car fitting the description
of Mr. Briggs' car slowing down by a stopped pickup that fit the description
forwarded to Officer Ryder shortly before.
8. The suspect pickup still had its brake lights on and they flashed off as Officer
Ryder approached. 9. The suspect pickup was parked in a parking area but on the wrong side of the
street facing in the opposite direction of the travel lane.
10. Officer Ryder activated his blue lights.
DISCUSSION
Mr. Stuart argues that Officer Ryder did not have reasonable, articulable
suspicion to stop his truck. Mr. Stuart cites State v. LaFond, 2002:ME 124, 802 A.2d 425;
Alabama v. White, 496 U.S. 325 (1990); and Florida v. ].L, 529 U.s. 266 (2000). Mr. Stuart
argues that stopping the opposite way in a parking space, which was the only evidence
personally observed by Officer Ryder, did not sufficiently corroborate the tip from Mr.
Briggs.
All of the cases cited by Mr. Stuart are inapplicable. They all deal with
anonymous tips. In this case the tip was not anonymous. The concerned citizen gave
his name as William Briggs. He reported the type of vehicle Mr. Stuart was driving and
the plate number. Mr. Briggs described his own car. We know how Mr. Briggs gained
his information concerning erratic operation because he reported that he was following
Mr. Stuart. Mr. Briggs reported the route Mr. Stuart was taking and that was
corroborated. Mr. Stuart was taking his foot off the brake as Officer Ryder observed
Mr. Briggs slowing down by Mr. Stuart's truck. By giving his name, Mr. Briggs
indicated his willingness to take responsibility for the information he was providing to
the police. Mr. Briggs' information alone would be sufficiently reliable to justify a stop.
Officer Ryder's observation that Mr. Stuart had parked opposite to the flow of traffic
adds to the indicia of impairment.
Mr. Stuart next argues that Mr. Briggs' reports to the dispatch are hearsay. He
further argues that the rules of evidence apply to motions to suppress.
2 The second point may well be true. The first point does not fare so well and not
only because all federal and state courts have for decades authorized the use of second
hand reports in determining articulable suspicion and probable cause.
Second-hand information is not hearsay unless it is being offered to prove the
truth of the matter asserted. In Fourth Amendment cases the issue is not whether the
second-hand information is true. The issue is whether it was reasonable for the officer
to rely on the facts he relied on. Truth will come later.
For the above-stated reasons, the clerk will make the following entry on the
docket by reference:
Defendant Frederick Stuart Jr.'s motion to suppress is denied in all respects.
DATED: November Lq ,2007
William S. Brodrick Active Retired Justice, Superior Court
3 STATE OF MAINE SUPERIOR COURT vs CUMBERLAND, ss. FREDERICK L STUART, JR Docket No PORSC-CR-2007-00912 76 LAND OF NOD ROAD WINDHAM ME 04062 DOCKET RECORD
DOB: 06/26/1948 Attorney: MICHAEL WHIPPLE State's Attorney: STEPHANIE ANDERSON THOMAS F HALLETT LAW OFFICES PA 36 UNION WHARF PO BOX 7508 PORTLAND ME 04112 RETAINED 02/22/2007
Filing Document: CRIMINAL COMPLAINT Major Case Type: MISDEMEANOR (CLASS D,E) Filing Date: 03/20/2007
Charge(s)
1 OPERATING UNDER THE INFLUENCE 02/13/2007 WESTBROOK Seq 9878 29-A 2411(1-A) (A) Class D RYDER / WES
Docket Events:
04/10/2007 Charge(s): 1 TRANSFER - TRANSFER FOR JURy TRIAL EDI ON 04/10/2007 @ 18:01
TRANSFERRED CASE: SENDING COURT CASEID PORDCCR200702319 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 03/20/2007 JAMES TURCOTTE, ASSISTANT CLERK Charge(s): 1 HEARING - ARRAIGNMENT SCHEDULED FOR 04/09/2007 @ 8:30 in Room No. 1
NOTICE TO PARTIES/COUNSEL 847 04/10/2007 Charge(s): 1 HEARING - ARRAIGNMENT WAIVED ON 04/09/2007
409 Party(s) : FREDERICK L STUART JR ATTORNEY - RETAINED ENTERED ON 02/22/2007
Attorney: MICHAEL WHIPPLE Charge(s): 1 TRANSFER - TRANSFER FOR JURY TRIAL REQUESTED ON 02/22/2007 JAMES TURCOTTE, ASSISTANT CLERK Charge(s): 1 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 02/22/2007 JAMES TURCOTTE, ASSISTANT CLERK Charge(s): 1 MOTION - MOTION TO SUPPRESS EVIDENCE FILED BY DEFENDANT ON 02/22/2007 JAMES TURCOTTE, ASSISTANT CLERK Charge(s): 1 PLEA - NOT GUILTY ENTERED BY COUNSEL ON 04/09/2007
Page 1 of 3 Printed on: 11/30/Z007 FREDERICK L STUART, JR PORSC-CR-2007-00912 DOCKET RECORD 409 Charge ( s): 1 TRIAL - BENCH SCHEDULED FOR 06/12/2007 @ 10:30 in Room No. 1
NOTICE TO PARTIES/COUNSEL 409 Charge(s): 1 TRIAL - BENCH NOT HELD ON 04/09/2007
Charge(s): 1 FINDING - TRANSFER FOR JURY TRIAL TRANSFERRED ON 04/10/2007 DEBRA SOUBBLE, ADMINISTRATIVE CLERK PORSC 04/13/2007 Charge(s): 1 TRANSFER - TRANSFER FOR JURY TRIAL RECVD BY COURT ON 04/10/2007 BETHANY RODERIGUE, ASSISTANT CLERK-E DOCKET ENTRIES RECEIVED FROM 9TH DISTRICT COURT (07-2319) NO APPEARANCE BOND FILED 06/13/2007 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 07/05/2007 @ 11:00 DARCEY EMERY, ASSISTANT CLERK NOTICE TO PARTIES/COUNSEL 06/29/2007 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 06/27/2007
MRP 06/29/2007 MOTION - MOTION TO CONTINUE GRANTED ON 06/29/2007 THOMAS E DELAHANTY II, JUSTICE COPY TO PARTIES/COUNSEL RESCHEDULE FOR FIRST AVAILABLE DATE AFTER 30 DAYS AKL 06/29/2007 HEARING - MOTION TO SUPPRESS CONTINUED ON 06/29/2007 THOMAS E DELAHANTY II, JUSTICE AKL 07/24/2007 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 08/10/2007 @ 10:00 in Room No. 7 WILLIAM BRODRICK, JUSTICE NOTICE TO PARTIES/COUNSEL SR 07/24/2007 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 07/24/2007
07/24/2007 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR oa/10/2007 @ 10:00 in Room No. 7 WILLIAM BRODRICK, JUSTICE NOTICE TO PARTIES/COUNSEL SR 07/24/2007 HEARING - MOTION FOR DISCOVERY NOTICE SENT ON 07/24/2007
oa/13/2007 HEARING - MOTION TO SUPPRESS SCHEDULED FOR oa/16/2007 @ 11:00 in Room No. 7 WILLIAM BRODRICK, JUSTICE NOTICE TO PARTIES/COUNSEL AKL oa/13/2007 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 08/13/2007
AKL oa/22/2007 Charge(s): 1 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 10/04/2007 @ 11:00 in Room No. 7 WILLIAM BRODRICK, JUSTICE NOTICE TO PARTIES/COUNSEL Oa/22/2007 Charge (8): 1 HEARING - MOTION TO SUPPRESS NOTICE SENT ON Oa/22/2007 Page 2 of 3 Printed on: 11/30/2007 FREDERICK L STUART, JR PORSC-CR-2007-00912 DOCKET RECORD
08/24/2007 HEARING - MOTION TO SUPPRESS NOT HELD ON 08/24/2007
08/24/2007 HEARING - MOTION FOR DISCOVERY NOT HELD ON 08/24/2007
10/09/2007 Charge (5) : 1 HEARING MOTION TO SUPPRESS HELD ON 10/04/2007 WILLIAM BRODRICK , JUSTICE 10/09/2007 HEARING - MOTION TO SUPPRESS NOT HELD ON 10/09/2007
10/09/2007 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 10/25/2007 @ 8:30 in Room No. 7
NOTICE TO PARTIES/COUNSEL 10/09/2007 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 10/09/2007
JOANN HEBERT 10/09/2007 HEARING - MOTION TO DISMISS SCHEDULED FOR 10/25/2007 @ 8:30 in Room No. 7
NOTICE TO PARTIES/COUNSEL 10/09/2007 HEARING - MOTION TO DISMISS NOTICE SENT ON 10/09/2007
JOANN HEBERT 10/26/2007 HEARING - MOTION TO DISMISS HELD ON 10/25/2007 WILLIAM BRODRICK, JUSTICE Attorney: MICHAEL WHIPPLE DA: MICHAEL MADIGAN Reporter: PENNY PHILBRICK-CARVER Defendant Present in Court 10/26/2007 Charge (5) : 1 MOTION - MOTION TO SUPPRESS EVIDENCE UNDER ADVISEMENT ON 10/25/2007 WILLIAM BRODRICK, JUSTICE 11/30/2007 Charge (s): 1 MOTION - MOTION TO SUPPRESS EVIDENCE DENIED ON 11/19/2007 WILLIAM BRODRICK, JUSTICE
a COPY TO PARTIES/COUNSEL TSK
A TRUE ArrEST, I' ~ I3a ~ ~~*' Clerk . lr ~r-- I
Page 3 of 3 Printed on: 11/30/2007