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State v. Gerrier

Superior Court of Maine, Kennebec

May 11, 2017

STATE OF MAINE
v.
Travis R. Gerrier, Defendant.

          ORDER ON DEFENDANT'S MOTION TO SUPPRESS

         This matter comes before the court on the Defendant's motion to suppress, originally filed on January 3, 2017, with an amended motion filed on March 21, 2017. A hearing on this motion was held on April 20, 2017. The State was represented by Assistant District Attorney Michael Madigan, and the Defendant was represented by Sherry Tash Esq. Both parties were afforded ample opportunity to present evidence and argument in support of their respective positions.

         The defendant is charged with one count of Gross Sexual Assault (Class A), Unlawful Sexual Contact (Class B) and Furnishing Liquor to a Minor, (Class D). The charges arose from alleged conduct by the Defendant on the evening of June 3, 2015 in Belgrade, Maine, involving a minor girl, (hereinafter C.F.) who was 11 years of age at the time. The Defendant was 21 years of age. In the present case, the defendant asks this court to suppress statements he made to police asserting that his statements were not voluntary, and taken in violation of Miranda v. Arizona. The defendant is also seeking to suppress any evidence resulting from the taking of his pants and underwear, and a DNA sample from him, on the grounds that that he did not voluntarily consent to this.

         FINDINGS OF FACT

         On June 4, 2015, commencing at approximately 12:29 AM, Detective Brockway of the Maine State Police, questioned the Defendant concerning his interactions with C.F. in Belgrade, earlier that evening. The Detective and the Defendant sat in his unmarked police car, in a public area, and the questioning continued for one hour and thirty-seven minutes. The officer and the Defendant were seated in the front compartment of his vehicle. There were two other officers present, who remained outside of the police car and did not participate in any of this questioning. Detective Brockway was initially alerted by one of the officers that the defendant appeared to be "cognitively slow". Detective Brockway testified that he utilized his training and questioned the Defendant in a manner suggested for children, or those on the autism spectrum. Before any questioning commenced, Detective Brockway told the Defendant that he was free to go, that he did not have to answer questions, and that no matter what happened, the Defendant was not going to be arrested that night. In fact, Detective Brockway told the Defendant that he was free to go at least four times during the questioning, and that he was not going to be arrested that night, on at least three occasions. The Defendant was also informed that the doors of the vehicle were unlocked. The Defendant's mother and sister were also present on the scene during the questioning.

         The Defendant was further advised that if he answered questions that he should tell the truth, and that if he did not know the answer or did not understand the question asked, he should answer accordingly. The Defendant was told by the Detective that he was not there to judge the Defendant. The Defendant was conversant, and was able to describe his normal routine, including his prior school history. During the course of the discussion, the detective remained calm and non-confrontational, though the detective was persistent in his questioning, advising the Defendant that "he was leaving stuff out", and that "he knew a fair amount about what had happened", and encouraged the Defendant to be truthful by stating "lets get it all out tonight". Notably, at no time did the officer tell the Defendant what the facts were, or directly or indirectly what he believed the Defendant had done. He persisted with questioning, and gradually the Defendant provided more detail as to what had occurred that evening. At no time did Detective Brockway raise his voice, or act in an accusatory manner. He remained calm and non-confrontational throughout.

         The Defendant told Detective Brockway that he had come to know C.F through his cousin, who goes to school with C.F. Defendant and C.F. had corresponded on Facebook and exchanged approximately 50 messages in which the Defendant flirted with her and talked about his desire to meet in person. The Defendant and C.F. met for the first time on May 31, 2015, and did not meet again until June 3, 2015, the date in which the alleged incident is asserted to have taken place. On that day the Defendant and C.F. exchanged messages on Facebook about meeting later that day at "Maine-ah's" a roadside snack shack on the Smithfield Road in Belgrade. This is a rural location which serves fast food with a picnic table for patrons to use. There is a porta-potty on the premises. They arrived there in the early evening. Both walked a significant distance to the meeting place. At the time of their meeting, the snack shack was closed and they were alone. The Defendant and C.F. engaged in conversation which led to hugging and kissing. The Defendant brought a bottle of Gatorade from home which also contained alcohol. C.F. and the Defendant both drank from this bottle. The hugging and kissing occurred in various places on the premises, including inside a building and inside the porta-potty. The Defendant ultimately stated that inside the porta-potty, the physical contact increased, resulting in sexual touching, oral sex and sexual intercourse. Afterward, the Defendant and C.F. remained inside the porta-potty until they heard voices outside looking for them.

         Toward the end of the Detective's questioning, the Defendant was asked to allow a DNA swab on the inside of his cheek. The Defendant agreed and stated that he did not have any questions, and in fact offered to provide another DNA sample if needed. The Detective stepped outside of his vehicle and briefly conversed with another officer. When he returned, he asked the Defendant for permission to take his pants and underwear, in case they contained evidence. The Defendant replied that they could have his underwear, but that he did not want to give up his pants. The Detective explained that he would assist him in getting another pair of pants to wear, which seemed to mollify the defendant somewhat. He agreed to allow the taking of both articles of clothing. This permission was given orally, and later in writing as the Defendant signed a consent statement. The questioning ended at 2:07 AM, or approximately one hour and thirty-eight minutes after it started.

         DISCUSSION

         We first examine whether Detective Brockway's questioning of the defendant constituted a custodial interrogation requiring a Miranda warning.

         "A person is not subject to formal arrest may be in custody if 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 freedom of movement of the degree associated with a formal arrest. This test is an objective one, and we have stated that in analyzing whether a defendant is in custody, a court may consider the following factors:

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 a reasonable person in the defendant's position would perceive his 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 ...

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