State of Maine v. Brackett

STATE OF MAINE UNIFIED CRIMINAL COURT
CUMBERLAND, ss. PORTLAND
Docket No. CDCR-20-3290

STATE OF MAINE

v. ORDER ON DEFENDANT'S
MOTION TO SUPPRESS

MICHAEL BRACKETT
Defendant

A hearing was held on Defendant's Motion to Suppress on January 3,
2022. Student attorney Scott DeLong along with supervising attorney,
Assistant District Attorney Grant Whelan appeared and argued on behalf of the
State and Attorney Michael Bowser appeared and argued on behalf of
Defendant. Defendant was present by Zoom by agreement of the parties and
without objection of the Defendant. The court heard testimony from Portland
Police officer John Nelson, referred to herein as Officer Nelson, and reviewed
Defendant's Exhibit 1 which contained a portion of the video footage from
Officer Nelson's body camera and a portion of the video footage from Officer
Burnell's cruiser camera.
Attorney Bowser informed the court at the onset of the hearing that
Defendant was seeking suppression of any statements made of Defendant
without the benefit of Mirandal after he was placed in custody and suppression
of the field sobriety tests evidence on the ground that the field sobriety testing
was conducted without Defendant's consent.
The court finds the following facts: On or about July 11, 2020, at
approximately 12:20 a.m., Officer Nelson was working a patrol beat in
Portland. He was in full uniform and in a marked cruiser. At approximately
12:23 a.m. he was dispatched to the area of Allen Avenue for a vehicle that was
stopped in the middle of the road. When Officer Nelson arrived at the area, he
observed a vehicle stopped in the middle of the travel lane on Allen Avenue

' Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2nd 694 (1966)
near Bruno's Restaurant. A second officer, Officer Brunell, was also present at
the scene of the vehicle when Officer Nelson arrived. 2 The stopped vehicle was
in the middle of the travel lane facing northbound towards Forest Avenue.
The two officers parked and approached the vehicle on foot with Officer
Brunell approaching on the driver's side of the vehicle and Officer Nelson
further back on the passenger side. As the officers got close, the vehicle began
pulling away, moving forward in the travel lane. The officers yelled commands
to stop but the vehicle continued to pull away. Both officers returned to their
vehicles and began pursuing the vehicle. Officer Brunell was behind the
suspect vehicle with lights and siren on attempting a traffic stop. The suspect
vehicle continued traveling on Allen Avenue, traveling through two sets of
traffic lights, first proceeding from Allen Avenue onto Forest Avenue, and then
at the intersection of Forest Avenue and Stevens Avenue. Throughout the
vehicle maintained a moderate speed. A short distance after the second traffic
light, the vehicle pulled to the right and stopped nearby to Samuels's Pub on
Forest Avenue.
Because the operator initially fled the traffic stop and failed to initially
stop when directed, the officers approached the stopped vehicle with their
weapons drawn. Both officers instructed the operator to put his hands out the
driver's side window, which the operator did. Officer Brunell approached the
driver's side and after looking into the vehicle, holstered his weapon. Officer
Nelson, who approached on the passenger side also had his weapon drawn.
Officer Nelson observed an open can of beer in the center console. After
inspecting the interior of the vehicle through the window, Officer Nelson also
holstered his weapon and walked around to the driver's side where the operator
was exiting the vehicle. The operator, who was later identified as Defendant,
was unsteady on his feet as he got out of the vehicle. Officer Nelson instructed
Defendant to "come over here" whereupon he placed Defendant in handcuffs.

2 Dispatch was called by a motorist who was stopped nearby. There was also a tow truck
present attending to another vehicle, unrelated to the vehicle stopped in the travel lane of Allen
Avenue.

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At this point Officer Nelson instructed Defendant that he was "detained at the
moment, because you're not listening to instructions." Officer Nelson
proceeded to ask Defendant: "what was going on tonight, why were you
stopped in the middle of the road back there, and not stopping for us when we
have out blue lights and sirens on?" and "Is there any reason you're not
stopping for police?" Officer Nelson also asked how much Defendant had had
to drink that night. Defendant slurred his words and answered in almost
unintelligible answers. Officer Nelson then informed Defendant he wanted him
to do some field sobriety tests. At this point Officer Nelson removed the
handcuffs.3
During this brief interaction with Defendant, Officer Nelson observed
Defendant to be lethargic, unsteady and swaying as he stepped out of the
vehicle. Once out of the vehicle, Officer Nelson noted a strong odor of alcohol
coming from Defendant. When speaking with him, Defendant slurred his
words to the point that some of his words were unintelligible. Officer Nelson
further described that Defendant's slurring of words was some of the worse
slurs he had seen in his career.
The first question before the court is whether or not Defendant in
custody when he was removed from the vehicle and placed in handcuffs. The
burden is on the State to prove that Defendant was not in custody by a
preponderance of the evidence. State v Prescott, 2012 ME 96, ,i 10, 48 A.3d
218. In analyzing whether a person is in custody prior to a formal arrest, the
court must consider "whether a reasonable person standing in the shoes of [the
Defendant] would have felt he or she was not at liberty to terminate the
interrogation and leave or if there was a restraint on [Defendant's] freedom of
movement of the degree associated with a formal arrest." State v King, 2016

3 Defendant's Exhibit 1, which was jointly offered by the parties and admitted by the court, is a
flash drive containing two video clips, one from Officer Brunell's cruiser cam video and the
other from Officer Nelson's body cam video. Each video is a portion of the entire video with the
clip from Officer Brunell's video lasting 2 minutes and 30 seconds and the clip from Officer
Nelson's video lasting 4 minutes and 20 seconds. Due to the abbreviated video, the court's
analysis ends prior to the commencement of the field sobriety tests, as the handcuffs are being
removed.

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ME 54 at '111 7 (quotation marks omitted). In making this determination
regarding custody, the Law Court has identified a non-exhaustive list of
objective characteristics of an interrogation to be considered by the court:

(1) the locale where the defendant made the statements;

(2) the party who initiated the contact;

(3) the existence or non-existence of probable cause to arrest (to the
extent communicated to the defendant);

(4) subjective views, beliefs, or intent that the police manifested to the
defendant to the extent they would affect how a reasonable person in the
defendant's position would perceive his or her freedom to leave;

(5) subjective views or beliefs that the defendant manifested to the police,
to the extent the officer's response would affect how a reasonable person
in the defendant's position would perceive his or her freedom to leave;

(6) the focus of the investigation (as a reasonable person in the
defendant's position would perceive it);

(7) whether the suspect was questioned in familiar surroundings;

(8) the number of law enforcement officers present;

(9) the degree of physical restraint placed upon the suspect; and

(10) the duration and character of the interrogation.

Id.. quoting State v. Dion, 2007 ME 87, '1!23, 928 A.2d 746. "Because the
custody test is purely objective, the subjective intent or beliefs of either the
police or the suspect play no role in the legal determination except to the extent
that they manifest themselves outwardly and would affect whether a
reasonable person would feel constrained to a degree commensurate with
police custody." State v Prescott, 2012 ME 96 at '1!11 (quotations omitted).
In the instant case, Defendant was stopped on Forest Avenue after being
signaled to stop by two law enforcement officers in cruisers with lights and at
least one with siren going. The officers, who were in uniform, ordered
Defendant out of his vehicle with their guns drawn, and immediately upon

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exiting his vehicle, the officers briefly patted him down and placed Defendant in
handcuffs, whereupon the officer stated to Defendant that he was "detained at
the moment, because you're not listening to instructions." No Miranda warning
was given, but the officer immediately asked Defendant why he was stopped in
the middle of the road, why he had not stopped for the officers with blue lights
and sirens on, and how much he had had to drink that night? These factors,
taken in the totality of the circumstances, describes "a restraint on freedom of
movement of the degree associated with a formal arrest." Id., at ,i 14. The
court finds that at the point he was removed from the vehicle he was in
custody, and not subject to merely an investigatory detention, and he had not
been advised of or waived his rights Miranda rights. The court grants
Defendant's motion to suppress with respect to the answers to Officer Nelson's
questions once in handcuffs.
The second question for the court, whether or not suppression of the
field sobriety tests is warranted on the ground that the field sobriety testing
was conducted without Defendant's consent and without a waiver of Miranda.
Maine courts have long held that field sobriety test results are generally
considered to be physical or non-testimonial evidence. State v Eastman, 1997
ME 39, ,ilO., 691 A.2d 179. (See also State v. Millay, 2001 ME 177, iJ15, 787
A.2d 19, where court held a defendant's performance on field sobriety tests is
nontestimonial in nature; State v. Bragg 2012 ME 102, iJ13.) Similarly,
observations of Defendant's slurred speech is not testimonial. If evidence
obtained during a custodial interrogation is not testimonial, neither Miranda
nor the Maine Constitutional privilege is implicated. State v. McKechnie, 1997
ME 40, iJ7, 690 A.2d 976.
The court finds that, based on the totality of the circumstances, Officer
Nelson had the requisite reasonable articulable suspicion to conduct the field
sobriety testing, given his observations of Defendant's erratic driving, his
unsteadiness when exiting the vehicle and his slurred speech. See, e.g., State
v. King, 2009 ME 14, ,i 6, 965 A.2d 52, 54 ("An officer may undertake field
sobriety testing, like any other investigatory stop, if at the time the officer has

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an articulable suspicion, objectively reasonable in light of all the
circumstances, that the object of the search has committed or is about to
commit a crime"); State v. Webster, 2000 ME 115, ,i 7, 754 A.2d 976, 978 ("For
there to be probable cause to arrest someone for operating under the influence
... an officer "must have probable cause to believe that the person's senses are
affected to the slightest degree, or to any extent, by the alcohol that person has
had to drink").
Finally, Defendant's argument that he did not consent to the field
sobriety tests is not persuasive. At no time did Defendant object to performing
the field sobriety tests. Officer Nelson had articulable suspicion, objectively
reasonable in light of all the circumstances, sufficient to request Defendant to
perform field sobriety tests.
It is accordingly hereby ORDERED that Defendant's Motion to Suppress
is GRANTED in part and DENIED in part. Statements made by Defendant after
he was removed from the vehicle and placed in handcuffs are SUPPRESSED.
The Motion to Suppress as it relates to Officer Nelson's observations of
Defendant, including his performance on field sobriety tests, is DENIED.

DATED: February 1, 2022
~--,
Deborah P. Cashman, Justice
Maine Unified Criminal Court

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