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State v. Smith

Superior Court of Maine, Cumberland

October 3, 2019



          A. M. Horton, Justice.

         A testimonial hearing on Defendant's Motion to Suppress Statements was held August S, 2019, with Defendant present and both parties represented by counsel. The sole witness was the investigating officer, Sgt. Patrick Ferriter of the Cumberland County Sheriffs Department.

         A DVD containing two audio files was admitted by agreement as State's Ex. 1. After the hearing, the State filed a Memorandum In Opposition to Defendant's Motion to Suppress. The Defendant then filed a Reply Memorandum docketed September 23, 2019, at which point the court took the Motion to Suppress under advisement.

         Based on the entire record and for the reasons set forth below, the Defendant's Motion to Suppress is granted in part and otherwise denied.


         Patrick Ferriter is a patrol sergeant with the Cumberland County Sheriffs Department, having joined the Department about eight years ago. He is a graduate of the Maine Criminal Justice Academy with training in the investigation of suspected operating under the influence offenses.

         On the evening of November 2, 2018, Sgt. Ferriter was on duty as a patrol supervisor, and was in uniform in a marked Sheriffs Department vehicle.

         At some point around 9 p.m., Sgt. Ferriter was advised that a pedestrian had been struck by a vehicle in the Town of Standish and that the vehicle had left the scene and turned onto Manchester Road. He was given a description of the vehicle as a dark-colored truck-possibly dark blue or black and "possibly lifted" (meaning with a suspension modified so as to cause the vehicle to ride higher). Sgt. Ferriter drove his vehicle to Manchester Road and headed toward the accident scene in hopes of seeing the truck coming toward him on Manchester Road. He saw what appeared to be a dark-colored truck coming toward him from the direction of the reported accident. Until then, no other vehicles had passed him heading the other way.

         Suspecting that the truck could be the vehicle involved in the accident, Sgt. Ferriter turned around his vehicle and began to follow the truck. He observed what appeared to be erratic operation-the vehicle slowed almost to a complete stop in the roadway for no apparent reason and then resumed normal speed. It did not cross the center line or go off the roadway.

         Sgt Ferriter then activated his vehicle's blue lights in order to execute a traffic stop. Sgt. Ferriter noted that the truck continued for several hundred feet before coming to a stop, and considered that to be potentially indicative of driver impairment.

         The truck Sgt. Ferriter had stopped was not consistent with all aspects of the description he had been provided-the truck was gray rather than dark blue or black and not noticeably "lifted."

         As Sgt. Ferriter exited his vehicle, he noted that the truck ahead of him appeared to be in poor condition, with multiple dents. These attributes, too, were not part of the description he had been provided.

         At the driver's side of the truck, he noted that the driver, identified as the Defendant Timothy Smith, was the only person in the truck and that a dog was inside. While Sgt. Ferriter was standing next to the driver's side speaking with the Defendant, he noted that the Defendant was displaying what appeared to Sgt. Ferriter, based on his training and experience, to be signs of intoxication-glossy and bloodshot eyes and slow, slurred speech. He also noted that Defendant appeared to be bewildered.

         In response to the sergeant's questioning from outside the vehicle, Defendant said he was coming from a friend's house in East Baldwin and acknowledged that he had consumed alcoholic beverages. Defendant also said he thought he may have been involved in an accident and hit a person-an acknowledgment that Sgt. Ferriter took as confirmation of his suspicion that Defendant's truck was the vehicle involved in the accident. Defendant readily answered the officer's questions without any prompting or encouragement.

         At that point, Sgt. Ferriter asked the Defendant to exit his vehicle. Around this point, Deputy Thistlewood of the Sheriffs Department arrived on scene.

         Instead of complying with Sgt. Ferriter's directive to exit the vehicle, the Defendant reached into his pocket and into the vehicle for something-behavior that Sgt. Ferriter interpreted as presenting a risk to his safety. He directed the Defendant to stop reaching around and to open the door. Defendant activated the door handle inside the truck but the door did not open. Sgt. Ferriter could not open the door from outside because the outside latch was broken. Defendant again began reaching for something. Increasingly concerned for his and Deputy Thistlewood's safety, Sgt. Ferriter opened the driver's door from inside and pulled the Defendant out of the vehicle.

         For officer safety purposes, the officers placed the Defendant in handcuffs and directed him to lean against or sit on the rear bumper of his vehicle. There is no evidence that the Defendant was told that he was not under arrest or that the reason he was being handcuffed was only for officer safety.

         At that point, the officers noted that the passenger side mirror of the Defendant's truck was damaged and asked him about it. Defendant said the damage had occurred because of the accident.

         Sgt. Ferriter then administered three standard field sobriety tests to the Defendant to determine whether there was probable cause to believe he had operated under the influence. Based on his training and experience, Sgt. Ferriter interpreted the results of all three tests as indicative of impairment:

• Sgt. Ferriter noted six out of six clues on the Horizontal Gaze Nystagmus test.
• Defendant declined to take the so-called alphabet test, which involves reciting letters of the alphabet in sequence.
• On the counting backward test, which involves counting numbers in decreasing order and in sequence, Sgt. Ferriter asked Defendant to count from 67 to 52. Defendant counted down to 60 and then counted up to 61 and then continued to count down.

         Defendant declined to rate his level of intoxication on a zero to 10 scale but acknowledged that he had consumed several containers of Budweiser beer.

         Based on everything he had heard and observed, Sgt. Ferriter determined that there was probable cause to place the Defendant under arrest. After informing the Defendant that he was under arrest, Sgt. Ferriter placed the Defendant, still handcuffed, inside his Sheriffs Department vehicle.

         The audio file on State's Ex. 1 labeled as Tim Smith Interview.m4a starts at this point. Based on the audio, the conversation initially was as follows:

         Sgt. Ferriter said, "You know who I am, right."

         The Defendant said, "Right."

         Sgt. Ferriter said, "I want to have a conversation with you about what happened tonight, okay?"

         Defendant said, "I knew I'd hit somebody, I turned around and came back to help 'em out." This was not said in response to any interrogation and was ...

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