L. Stitham Judge.
8/21/17 the hearing took place on the Defendant's 2/6/17
motion to suppress. Present were ADA Trainor for the
State, the Defendant, and Attorney Glazier for the Defense.
At the conclusion of the hearing and arguments of counsel,
the motion was taken under advisement.
Day in 2016 was celebrated on 10/10/16. For this autumn day,
Maine Game Wardens Pollard and Sargeant Annis decided to
bring their stuffed partridge decoy along with them into the
roads above Kokadjo to see what sort of mischief might be out
and about in the backwoods - for partridge season was upon
us. They placed the decoy in what they thought would be an
attractive spot on of the side of a woods road, they secreted
their truck, and each hid in a different position where each
could clearly see in both directions of the immediate woods
and road area of the fake partidge. Part of their plan was
that Pollard would keep his eye on the driver of any vehicle,
and Annis would keep his eye on any passenger in the vehicle.
time a man and woman drove by and stopped by the partridge.
The man was driving, he got out without any gun, he strolled
over to get a closer look at the partridge. He chuckled, got
back into his vehicle, and was heard to observe to the woman,
must be a warden in the woods. Then he continued on
his way down the road. He had traveled just a bit when a
vehicle approached him coming in the other direction. Both
vehicles stopped, drivers' windows were lowered and a
conversation between drivers took place. The couple then
drove off. The approaching vehicle continued on towards the
grassy spot where the fake partridge stood like a statue.
Just after it passed the partridge the vehicle stopped. The
driver and the passenger each got out of their respective
doors, each with a shotgun.
wanting to risk this bundle of feathers being blown into
kingdom come, each game warden stepped out from hiding, each
stated, Game warden don't shoot the partridge!
As planned Warden Polland then came up to the driver Matthew
Haynes and Warden Sargeant Annis came up to the passenger.
each of the warden's safety and for the safety of all
present it was necessary for each warden to immediately make
sure that no loaded shotguns were in play. Warden Sargeant
Annis took the conventional path of ordering the passenger
to, Make the gun safe. The passenger did and
Sargeant Annis learned that the gun was loaded and it was
made safe. Warden Polland took perhaps a more unconventional
path as he approached the Defendant by simply asking, Why did
you load the gun in your truck? In response Mr. Haynes said
that he did not want to scare the bird. In this fashion
Warden Polland learned that the gun was loaded and it was
made safe. So each warden: had seen "his" man get
out of the vehicle with a shotgun; had not seen .
"his" man load his shotgun outside of the truck;
took immediate steps to make sure that the shotgun of
"his" man was made safe. While perhaps it could be
argued that Warden Polland was somewhat sneaky in how he went
about making sure that Mr. Haynes' shotgun was made safe,
such does not run afoul of any Miranda rights of the
Defendant. The Court further finds that the Defendant was not
in custody at the time this statement was made. Accordingly
this statement (which is the only one the Defendant seeks to
suppress) is not suppressed. In addition there is no
sufficient basis to suppress any of the 10 /10 /16 statements
of the Defendant that were testified to at the hearing on the
motion to suppress. Thus part #3 of the 2/6/17 motion is
order of events Warden Polland and Warden Sargeant Annis then
each administered field tests to the Defendant - first
Polland then Annis. When Polland walked up to the Defendant
he knew that: it was partridge hunting season; he had been
driving the truck; he had stopped the truck just past the
decoy partridge; he had gotten out of the truck with a
shotgun. Polland then learned that the shotgun was indeed
loaded, and been loaded when he got out of the vehicle.
Polland also observed at the outset that the Defendant's
eyes were glassy and red, and that there was a strong odor of
intoxicants coming from the Defendant's mouth. Then
Polland learned that the Defendant had been drinking beer
earlier this same day. The lesson of State v.
Webster 2000 ME 115, 754 A.2d 976 couldn't be
clearer, the wardens would be careless if field
sobriety tests were not administered to determine Mr.
Haynes' sobriety and the risks he might pose to himself
and others as he was driving and he had a loaded
Polland administered: the HGN test (he observed 2 out of 6
clues); the walk and turn test (he observed only 1 clue); the
one legged stand test (he observed only 1 clue). These three
tests are termed "standardized" tests. He then
talked to Warden Sargeant Annis and told him that based upon
these tests he did not believe he had probable cause to have
the Defendant take an intoxilizer test; however he told Annis
that he still believed from all of his observations that the
Defendant was under the influence. So Annis came up to the
Defendant. He saw the Defendant's eyes as very red and
very glazed, and he smelled the strong order of intoxicants
coming from the Defendant. Annis also knew that the Defendant
was driving and that he had gotten out of the truck with a
Sargeant Annis then admistered the only three field tests
that he has administered over about 20 years of being a
warden. These three tests are not "standardized."
He admistered: the alphabet test, he was supposed to recite
from just B to N (the Defendant went past
N all the way to R - so he failed); the
backwards number test, he was supposed to count from 46 to 19
(the Defendant counted down to 13 and beyond - so he failed);
the finger dexterity test, he was supposed to do three rounds
(while he performed the first two rounds fine, he simply
stopped after doing the first two and never did perform the
third round - so he failed). From all of his observations and
the three field tests he administered Annis did
conclude that there was probable cause to have the Defendant
take an intoxilzer test.
the reasoning of the Daniel Webster case Warden
Polland and then Warden Annis each had a sufficient basis to
each administer field sobriety tests. [For the purposes of
this motion to supress this Court does not find any
significance as to whether a test is "standardized"
or not.] Thus part #1 of the 2/6/17 motion is denied as to
the tests administered by Polland and as to the tests
administered by Annis.
State concedes that had Annis made no observations and
administerd no field tests, there would have been no probable
cause to have the Defendant take an intoxilizer test. However
it may well be that Polland's still firm belief from all
of his observations (despite the three field test results),
under State v. Webster there would have been a
sufficient basis for the intoxilizer test had Polland
nonetheless requested the Defendant to take it. But this
Court need not reach that issue because this Court finds and
concludes that there was a sufficient basis for the
conclusion of Warden Sargeant Annis from his own observations
and his three field tests, that there was probable cause to
have the Defendant take an intoxilizer test. These two
wardens acted as a team that day, and it was acting as a team
that: Warden Polland, Warden Sargeant Annis, the Defendant,
his passenger, the warden truck, and the Defendant's
truck all wound up at the Greenville ...