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State v. Weare

Superior Court of Maine, Cumberland

August 2, 2017



          Thomas D. Warren Justice, Superior Court

         Before the court is a motion to suppress by defendant Nathan Weare. A hearing was held on July 20, 2017. Weare was stopped while driving a vehicle in South Portland at around 1:35 am on New Year's Day and was subsequently charged with operating under the influence of marijuana.

         The primary evidence at the hearing consisted of the following: (1) the testimony of Officer Johns of the South Portland Police Department, (2) a video from the cruiser camera of Officer Theriault (State's Ex. 2), which showed the interaction between Officer Johns and Weare at the scene and included some audio, (3) audio from the cruiser camera of Officer Johns (State's Ex. 3) which begins several minutes after Officer Johns approached the Weare vehicle and which lasts until Weare's arrest at the scene, and (4) audio from the cruiser camera of Officer Johns (also State's Ex. 3) covering the time period at the jail from 2:25am until 3:22am.[1]

         The State has the burden of proof by a preponderance of the evidence on all of the issues raised by the motion. The court finds as follows:

         1. Shortly after midnight on New Year's Day there was a small transformer fire on Highland Avenue between Scamman Street and Plymouth Road in South Portland. South Portland Officers Theriault and Johns set up a roadblock on Highland Avenue to allow the Fire Department to extinguish the fire and for CMP to repair the transformer. Officer Theriault placed his cruiser across both lanes of Highland Avenue at the Scamman Street intersection with his blue lights flashing, and Officer Johns placed his cruiser across both lanes of Highland Avenue at the Plymouth Road intersection with his blue lights flashing.

         2. At approximately 1:38am a vehicle driven by Weare approached Theriault's cruiser but did not stop. Instead it went to the left and squeezed past Theriault's vehicle and continued along Highland Avenue even though Theriault flashed his headlights and honked his horn. When the Weare vehicle reached the Plymouth Road intersection, where Highland Avenue was blocked by Officer Johns's cruiser, the Weare vehicle stopped and Officer Johns approached the vehicle. Around that same time, the CMP truck left the scene, and Officer Theriault drove down to where the Weare vehicle had been stopped.

         3. There is no audio from the first few minutes of the interaction between Officer Johns and Weare. When Johns approached and asked Weare for his driver's license, registration, and proof of insurance, Johns smelled a strong odor of marijuana. Johns asked Weare whether he had ingested any marijuana or had any marijuana, and Weare told him he had smoked marijuana six hours earlier and voluntarily showed Officer Johns a pipe with burned residue.[2]

         4. When Officer Theriault approached the vehicle, Theriault asked Weare why he had passed the roadblock and Weare stated that he had not realized that the road was blocked. When Theriault returned to his vehicle, there was further conversation between Johns and the occupants of the vehicle that is not audible but Johns thereafter can be heard demanding "where's the weed?" in a fairly loud manner and threatening to search the car and summons everyone inside if marijuana was found. At that point Weare produced some marijuana and gave it to Johns.

         5. Shortly thereafter Officer Theriault asked the passengers in the vehicle for identification and when it turned out that they were minors, Theriault and Johns began attempting to call their parents because of a South Portland ordinance imposing a curfew on minors under 16 or 17 not accompanied by parent or guardian.

         6. Johns then asked Weare to step out of the vehicle and performed an HGN test with one addition - Johns moved his finger very close to the bridge of Weare's nose to see if Weare's eyes crossed. At that point Johns observed that Weare's eyes did not cross (lack of convergence) which can be - but is not necessarily - an indicator of impairment from marijuana. Johns did not note any alcohol clues on the HGN test.[3] The HGN test was performed approximately 12 minutes after Officer Johns first approached Weare's vehicle.

         7. Thereafter the officers consulted with one another. Theriault stated that he was "just going to kick them loose, " but Johns stated that Weare was "still high." Johns then proceeded to a further OUI investigation by administering walk and turn and one leg stand tests. On the walk and turn Weare attempted to start early and had some difficulty with his balance, raising his arms. On the one leg stand Weare was steadier but raised his arms once.

         8. Johns then placed Weare under arrest and transported him to the jail. This occurred around 2:02am, approximately 25 minutes after Johns first approached Weare's vehicle. Weare was at no time given a Miranda warning after his arrest. The State agreed at the motion hearing that at trial, it would not seek to offer any statements by Weare that were made after his arrest.

         9. The record does not reflect exactly when Officer Johns and Weare arrived at the jail but they were at the jail by 2:25am when Officer Johns told Weare that he would perform an intoxilyzer test although he anticipated Weare would blow a 0.00. That test was performed with the expected 0.00 result, and Officer Johns then began seeking an officer certified as a Drug Recognition Expert (DRE) to perform an evaluation of Weare. During the time at the jail Weare and Officer Johns had some discussions that included statements by Weare that he did not feel under the influence and statements by Officer Johns that he had been certified as a DRE in California before joining the South Portland Police Department 9 months earlier and that he was certain Weare was under the influence. All of this discussion, however, was in a conversational tone and Officer Johns was not hostile and did not raise his voice.

         10. At around 2:57am Weare inquired what would happen if a DRE officer could not be found and Johns replied that "you'll probably just provide a urine sample." Shortly after 3:05am Officer Johns directly asked Weare whether he was willing to provide a urine sample, and Weare answered "sure." Weare added that he did not think he could urinate with someone watching him. Officer Johns agreed that while the door to the bathroom would be open, Weare would not be watched while he provided a sample. ...

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