Blackstone v. Quirino, No. CIV.03-126-B-K.

• Decision Date: 17 March 2004
• Docket Number: No. CIV.03-126-B-K.
• Citation: 309 F.Supp.2d 117
• Parties: John BLACKSTONE, Plaintiff, v. Norbert QUIRINO, et al., Defendants
• Court: U.S. District Court — District of Maine

Page 117

309 F.Supp.2d 117

John BLACKSTONE, Plaintiff, v. Norbert QUIRINO, et al., Defendants

No. CIV.03-126-B-K.

United States District Court, D. Maine.

March 17, 2004.

COPYRIGHT MATERIAL OMITTED

Peter S. Kelley, Law Offices of Peter S. Kelley, Esq., Caribou, ME, Brett D. Baber, Law Office of Brett D. Baber, Bangor, ME, for John M Blackstone, Plaintiff.

Edward R. Benjamin, Jr., Thompson & Bowie, Portland, ME, for Norbert A Quirino, Paul Theriault, Mark Barnes, Defendants.

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT¹

KRAVCHUK, United States Magistrate Judge.

John Blackstone is pursuing a § 1983 claim against Norbert Quirino, Paul Theriault and Mark Barnes, three members of the Presque Isle Police Department,² contending that they subjected him to an unlawful seizure and an unlawful arrest in connection with a roadside stop on June 7, 2002. Supplemental to his federal claim, Blackstone is pursuing state law tort claims.³ The defendants request an entry of summary judgment on all claims, arguing that no constitutional violations occurred and that they are entitled to qualified immunity under federal law and discretionary function immunity under the Maine Tort Claims Act, 14 M.R.S.A. §§ 8101-8118 ("MTCA"). I grant the motion in part.

Facts⁴

On the evening of June 7, 2002, John Blackstone was driving himself and his minor daughter home in his green Chevrolet pickup truck. Earlier that evening, Blackstone had attended his older daughter's high school graduation and had gone out to eat with his wife. (Pl.'s Statement of Add'l Material Facts, Docket No. 13, "PSAMF," ¶ 1.) Blackstone does not drink alcohol and had not consumed any alcoholic beverages that evening. (Id., ¶ 3.) At roughly 10:00 p.m. on June 7, 2002, Officers Norbert Quirino and Paul Theriault of the Presque Isle Police Department were on routine patrol in a police cruiser and were driving behind Blackstone's pickup truck. (Defs' Statement of Material Facts, Docket No. 12; Pl.'s Response to Defs' Statement of Material Facts, Docket No. 13, hereinafter jointly cited as "SMF," ¶¶ 1, 2, 17, 18.) They observed the truck drifting within its lane. (SMF, ¶ 19.) Officer Quirino activated a dashboard-mounted video camera. (Id., ¶ 21.) The video camera recorded the pickup truck's operation for approximately one minute. A VHS tape copy of the recording has been produced in connection with the defendant's motion for summary judgment. The tape clearly depicts the pickup truck weaving within its lane of travel and, on at least two occasions, straddling or crossing the center line. (Id., ¶¶ 25-27, 30-31 & Exhibit 2.) Officer Quirino activated his blue lights and the pickup pulled over to a stop on the right hand side of the road approximately ten seconds later. (SMF, ¶¶ 33-34.) According to Blackstone, he pulled over as soon as he realized that the cruiser was behind him and activated its lights. (PSAMF, ¶ 5.) Blackstone did not use his directional signals to indicate that he was pulling to the right, but did activate his left turn signals after coming to a stop. (SMF, ¶ 35.) Officer Quirino approached the driver's side of the pickup truck and asked Blackstone for his license, registration and proof of insurance. (Id., ¶ 36.) Blackstone responded, "Is there a problem?" (Id., ¶ 37.) Officer Quirino reiterated his request for Blackstone's documents. (Id., ¶ 40.) When asked by Officer Quirino, Blackstone denied drinking, indicating that he does not drink alcohol. (Id., ¶ 41; PSAMF, ¶ 6.) Meanwhile, Officer Theriault had approached the passenger side of the vehicle, where Blackstone's young daughter was seated. (SMF, ¶¶ 42-43.) Officer Theriault shined his flashlight into the pickup's passenger compartment and observed as Blackstone looked in the glove compartment for the documents requested by Officer Quirino. (Id., ¶¶ 44-45.) According to Officer Quirino, Blackstone's eyes appeared to be slightly glassy. (Id., ¶ 47.) Also according to Officer Quirino, he saw an empty "Mike's Hard Lemonade" six-pack container folded up in the glove compartment. (Id., ¶ 46.) However, there was no such container in the glove compartment. (Id., ¶ 46.) Officer Theriault, who was in a better position to see into the glove compartment, did not see any such container and Blackstone's testimony, which must be credited at this juncture, is that there was no such container in his truck's glove compartment, although there was a similarly-colored Midas Muffler envelope. (PSAMF, ¶¶ 9, 14-16.) Still, Blackstone himself offers in evidence the fact that Officers Quirino and Theriault believed they smelled an odor of an alcoholic beverage emanating from the truck, though he explains that the officers must have been confused by the smell of flavorings and syrups on his daughter's ice cream shop uniform (Id., ¶¶ 10, 11, 19, 22-23; see also SMF, ¶ 39; Aff. of Amber Blackstone, attached to Docket No. 15, ¶ 5.)

Officer Quirino requested that Blackstone exit the pickup and walk to the front of the cruiser parked behind it. (SMF, ¶ 49.) Blackstone willingly complied and did not have any difficulty exiting the truck or walking to the cruiser. (PSAMF, ¶¶ 18, 27.) Officer Theriault moved to a position from which he could observe Officer Quirino's administration of field sobriety tests to Mr. Blackstone. (SMF, ¶ 50.) Meanwhile, a third officer, Officer Mark Barnes, overheard radio chatter concerning the stop and drove to the scene. He arrived as the first field sobriety test was being conducted. (Id., ¶¶ 75-77.) The first test administered by Officer Quirino was the horizontal gaze nystagmus (HGN) test. (Id., ¶ 53.) During the test, Officer Quirino instructed Blackstone not to move his head and to keep his eyes open, to which Blackstone responded that his eyes were open, that he could see one hundred percent and that Quirino was shining the flashlight into his eyes, which appears, at least from the video, to have been the case.⁵ At one point during the HGN test, Blackstone responds to Officer Quirino's complaints, saying, "What, sir, is your problem?" "My eyes are open," "I've had enough of this crap," "I can see everything one hundred percent," and "I've never drunk."⁶ In all, Officer Quirino conducted the test for several minutes. Officer Quirino continued conducting the test for some time after his oral exchanges with Blackstone, without making any further critique of Blackstone's performance and without Blackstone moving his head. Eventually, Officer Quirino simply stopped the test without comment. The appearance from the video is that he had completed administering the test. (Id., ¶¶ 55-56, 59-67.) In his summary judgment affidavit, Officer Quirino indicates that he was unable to determine whether Blackstone was impaired based on the HGN test. (Id., ¶¶ 53, 73; Aff. of Norbert Quirino, ¶ 5.)

Following the HGN test, Officer Quirino proceeded to instruct Blackstone regarding the walk and turn test. He explained that Blackstone should take nine steps forward, heel-to-toe, turn, and take nine more heel-to-toe steps back, all the while counting out loud from one to nine with each successive step. He then demonstrated the test to Blackstone.⁷ (Id., ¶¶ 82-86.) From Blackstone's perspective, Officer Quirino "rattled off instructions" and kept asking, "Do you understand?," a characterization that a jury might credit based on the videotape. (PSAMF, ¶ 36; videotape.) Blackstone indicated that he understood, proceeded to take nine heel-to-toe steps forward, without counting and taking one stutter step without really becoming unbalanced. (SMF, ¶¶ 92, 93; videotape.) Blackstone then inquired how to proceed ("Which way do you want me to turn?"), turned other than as demonstrated, said he could not remember what to do and asked, "Now what do you want me to do? Touch my toes?" (Id., ¶¶ 94-97.) Blackstone advised Officer Quirino that he "didn't have to take this foolish test." (Id., ¶ 99.) Officer Quirino responded that Blackstone did have to take the test and Blackstone indicated that he could prove to Officer Quirino, any way that the officer wanted, that he did not drink. (Id., ¶ 101.) Officer Quirino advised Mr. Blackstone that performing the tests was how he was going to provide proof. (Id., ¶ 102.) Mr. Blackstone's responded, "Bull crap," whereupon Officer Quirino asked Blackstone if he was going to finish the walk and turn test. (Id., ¶ 103.) Blackstone first indicated that he did not remember what Officer Quirino wanted him to do, and then stated, "I think you've got a problem. I think you've got an attitude." (Id., ¶¶ 104, 110.) Officer Quirino asked Blackstone if he was going to continue the walk and turn test and Blackstone again asked if Officer Quirino wanted him to touch his toes. (Id., ¶ 105.) Officer Quirino said he wanted Blackstone to do what had been demonstrated to him, to which Blackstone responded, "I don't remember what you said at all." (Id., ¶ 98.) Officer Quirino was growing frustrated with Blackstone. (PSAMF, ¶ 37.) Officer Quirino did not reinstruct Blackstone, but moved onto his third test. Officer Quirino started administering the one-legged stand test by telling Blackstone not to start until he instructed him to do so. (SMF, ¶ 121.) However, when Officer Quirino demonstrated how Blackstone should lift his leg and began explaining the test, Blackstone started to perform the test. (Id., ¶ 122.) At this point the audio portion of the videotape goes out. (Id., ¶¶ 147, 149.)

From the videotape, it is apparent that Blackstone wavered somewhat and kept his leg raised for only a few seconds. (Id., ¶¶ 123-125; videotape.) Blackstone admits that he told Officer Quirino that he was not going to continue taking the test and that, when Officer Quirino finished explaining the test and advised Blackstone to start, Blackstone refused. (SMF, ¶¶ 126-127.) From Officer Quirino's perspective, Blackstone had failed all three tests and had to be taken to the station for an "intoxily...