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State v. Nazarenko

Superior Court of Maine, Cumberland

February 1, 2019

STATE OF MAINE
v.
LISA NAZARENKO

          Attorney: MATTHEW NICHOLS

          LISA NAZARENKO ATTORNEY

          ORDER ON DEFENDANT'S MOTION TO SUPRESS

          DEBORAH P. CASHMAN, JUDGE

         This matter came before the court on November 27, 2018 for hearing on Defendant's motion to suppress. Defendant was present and represented by Attorney Matthew B. Nichols, Esquire. The State was represented by Assistant District Attorney Brendan O'Brien, Esquire.

         At the onset of the hearing, Defendant clarified the issues raised by her motion to suppress. Specifically, Defendant challenges whether the officer has sufficient reasonable, articulable suspicion to stop Defendant's vehicle. The court heard the testimony of Officer Brandon Curtis of the Brunswick Police Department. After hearing, and having considered all of the evidence and arguments presented, the court makes the following Findings of Fact and Conclusions of Law upon which the Order set forth below is based:

         Brandon Curtis is an officer with the Brunswick Police Department, a position he has held for approximately 2 years. Officer Curtis was trained at the Maine Criminal Justice Academy. At the onset of the hearing, Defendant stipulated to Officer Curtis' training and experience as a law enforcement officer.

         On April 10, 2018 Officer Curtis was working the 4:30 pm to 2:30 am patrol shift. He was in a marked cruiser and in full uniform. At approximately 9:30 pm, Officer Curtis was traveling on Bath Road towards the intersection of Bath Road and Gurnet Road in the Cooks Corner area. As Officer Curtis approached the intersection, he observed a vehicle traveling from the Route 1 off ramp towards the four way intersection of Bath Road and Gurnet Road. The road that the observed vehicle was on consists of five lanes coming off Route 1. Each lane is marked with an arrow on the ground indicating direction of travel (two lanes turning left, two lanes traveling straight and one lane turning right). A raised median divides the two lanes coming from the opposite direction, which go towards Route 1. {See State's Exhibits 1 and 2.) Railroad tracks run parallel to Bath Road (perpendicular to Gurnet Road) just before the intersection. The railroad tracks have directional lights and a gate. There is a sign indicating Rail Road Crossing and a break in the raised median where the tracks cross. There is a solid yellow line which runs the full length of the median on both sides. A "No U-Turn" sign is visible further down the lane at the end of the median.

         Officer Curtis observed the vehicle make an illegal left turn through the break in the median at the railroad crossing, driving over the train tracks. The vehicle then proceeded to travel back towards the Route 1 onramp, away from the four way intersection. Officer Curtis, who was stopped at the traffic light at the intersection, turned right behind the observed vehicle and followed it towards the Route 1 onramp southbound. While behind the vehicle, the officer observed the vehicle move within the lane several times as it proceeded through the sharp bend in the road. Officer Curtis remained behind the vehicle, waiting until the vehicle was at a safe location to conduct a stop. Once through the sharp bend, Office Curtis turned on his blue lights, and initiated a traffic stop of the vehicle. Officer Curtis identified the driver of the vehicle to be the Defendant.

         In order to justify a brief investigatory stop of a vehicle, a police officer must have an "objectively reasonable, articulable suspicion that either criminal conduct, a civil violation, or a threat to public safety has occurred, is occurring, or is about to occur." State v. Sasso, 2016 ME 95. "A stop is justified when an officer's assessment of the existence of specific and articulable facts indicating a possible violation of law or a public safety risk is objectively reasonable considering the totality of the circumstances." State v. Simmons, 2016 ME 49, ¶ 8, "[T]he officer's assessment of the existence of specific and articulable facts sufficient to warrant the stop [must be] objectively reasonable in the totality of the circumstances.'" State v. Blier, 2017 ME 103, ¶ 1. "An investigatory stop is valid when it is supported by specific and articulable facts which, taken as a whole and together with the rational inferences from those facts, reasonably warrant the police intrusion." State v. Taylor, 1997 ME 81, ¶9."

         The Law Court has recognized "that the threshold for demonstrating an objectively reasonable suspicion necessary to justify a vehicle stop is low, in that 'reasonable articulable suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.'" State v. Laforge 2012 ME 65, ¶ 10, quoting State v. Porter, 2008 ME 175, ¶ 9.) "[T]he reasonable suspicion standard requires less than probable cause that a crime was being committed, but more than speculation or an unsubstantiated hunch." State v, Sampson, 669 A.2d at 1328 (Me 1996). "This standard balances the driver's right to be free from excessive restraint by the State against the public's right not to be placed at risk by an impaired driver." State v. Porter, at ¶9.

         Maine law states: "An operator may not drive a vehicle over, across or within a divider or an opening or crossover of a divider." 29-A M.R.S. § 2052(3). The term "divider" is further defined as "an intervening space, a physical barrier or a clearly indicated dividing space dividing 2 ways and constructed to impede vehicular traffic over it." 29-A M.R.S. §2052(1). The court finds that, there is a median or "divider1' in the section of road in question in this case.

         Officer Curtis observed Defendant's vehicle travel across the divider at the break for the railroad crossings not within the intersection or lane of travel, in violation of 29-A M.R.S. § 2052(3). Although Officer Curtis was not specifically asked to elaborate on why he stopped the vehicle during the hearing, the court finds, considering the reasonable inferences that can be drawn from his testimony, specifically that he followed and pursued the Defendant immediately after observing her vehicle make a U-Turn and travel through the railroad divider, that the officer had objectively reasonable suspicion that a traffic offense had been committed.[1] "The violation of a traffic infraction witnessed by a police officer is sufficient justification for the stop of the vehicle." State v. Webber, 2000 ME 168, ¶ 7.

         Based on the foregoing, the court is satisfied that the officer had objectively reasonable articulable suspicion to stop Defendant's vehicle, and ...


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