ORDER ON DEFENDANTS MOTION TO SUPPRESS
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.
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.
on the entire record and for the reasons set forth below, the
Defendant's Motion to Suppress is granted in part and
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.
evening of November 2, 2018, Sgt. Ferriter was on duty as a
patrol supervisor, and was in uniform in a marked Sheriffs
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.
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.
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
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
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.
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.
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.
point, Sgt. Ferriter asked the Defendant to exit his vehicle.
Around this point, Deputy Thistlewood of the Sheriffs
Department arrived on scene.
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
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.
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
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
• 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
declined to rate his level of intoxication on a zero to 10
scale but acknowledged that he had consumed several
containers of Budweiser beer.
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.
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:
Ferriter said, "You know who I am, right."
Defendant said, "Right."
Ferriter said, "I want to have a conversation with you
about what happened tonight, okay?"
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 ...