State v. Leonard

• Decision Date: 27 June 2016
• Docket Number: Criminal CUMDC-CR-15-4619
• Parties: STATE OF MAINE v. MICHAEL LEONARD
• Court: Maine Superior Court

STATE OF MAINE v. MICHAEL LEONARD

Criminal No. CUMDC-CR-15-4619

Superior Court of Maine, Cumberland

June 27, 2016

Devens M, Hamlen, Esq. Maine Bar No. 9973 Attorney for the Defendant.

MOTION TO SUPPRESS

NOW COMES Defendant, Mr. Michael Leonard, by and through counsel- Devens M. Hamlen of The H&H LawCenter, and requests that this Honorable Court suppress all evidence arrising from the illegal seizure on May 15, 2015 as it was obtained in violation of Article 1 section 5 of the Maine State Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.

As grounds for this Motion, Mr. Leonard respectfully states:

FACTS

1. The State had charged Mr. Leonard with one Class D Misdemeanor of Operating Under the Influence and one Class E Misdemeanor of Improper Plates.

2. Unless otherwise indicated, according to reports from Cumberland County Sheriffs Deputy Nicholas Mangino as well as discovery provided by the State, the following events occurred on May 15, 2015:

3. At approximately 12:45 in the morning Deputy Mangino was on patrol. As Deputy Mangino drove north on Route 35, he came upon a tan sedan driving north.

4. While Deputy Mangino drove behind the car, he saw the vehicle cross the yellow line two times. He also saw the car touch the white fog line twice. The second time the car touched the fog line, it traveled on the fog line for a short distance.

5. Deputy Mangino turned on his blue lights and pulled the car over. The driver was later identified as Michael Leonard. After conducting some field sobriety tests and making a few other observations, Deputy Mangino arrested Mr. Leonard for Operating Under the Influence.

LEGAL ARGUMENT

6. Part I, Article 5 of the Maine Constitution provides that "[t]he people shall be secure in their houses, papers and possessions from all unreasonable searches and seizures." Part 1, Article 5 of the Maine Constitution as well as 4^th Amendment of the United States Constitution are implicated when a seizure occurs. State v. Cilley. 1998 ME 34 at ¶ 5.

7. "A seizure of the person occurs when 'the officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen' such that he is not free to walk away." State v. Preble. 430 A.2d 553, 555 (Me. 1981) (quoting U.S. v. Viegas. 639 F.2d 42, 44 (1st Cir. 1981)); see also, U.S. v Mendenhall. 446 U.S. 544 (1980) (holding that a when a reasonable person feels as if they are not free to leave, a seizure occurs). This is an objective standard and the subjective belief of the officer is not relevant. Id. at 555 n.6.

8. A warrantless seizure is per se unreasonable unless it is accompanied by an objective reasonable articulable suspicion that criminal conduct has occurred or is about to occur. State v. Whitney. 2012 ME 105; State v Langlois. 2005 ME 3.

9. An investigatory stop is a valid exception to the warrant requirement only if two conditions are met, first "the officer must in fact have had an articulable suspicion of criminal conduct" and second "the officer's suspicion must be objectively reasonable in the totality of the circumstances." State v. Carnevale, 598 A.2d 746, 748 (Me. 1991). A mere hunch is not enough. "The officer's inarticulate hunch cannot be converted into a 'reasonable suspicion' by second thoughts developed at the suppression hearing." State v. Chapman, 494 A.2d 314, 317 (Me. 1995). The police must possess actual suspicion and "[a] finding that a reasonable person could have had a reasonable suspicion on the given facts is not alone enough." Id.

10. Deputy Mangino did not possess reasonable articulable suspicion when he seized Mr. Leonard. The reasons that Deputy gave for the seizure, crossing the yellow line twice and touching the fog line, do not add up to reasonable articulable suspicion that criminal activity was afoot.

11. In stating that "[a] vehicle must be operated as nearly as practical entirely within a single lane" the legislature has recognized that incidental lane violations are mistakes made by all drivers from time to time. 29-A M.R.S.A § 2051 (1). Likewise, courts across the country have recognized that these types of incidental violations alone are not a sufficient basis to stop a vehicle. See e.g., State v. Tague, 74 CrL 391 (Iowa 2004) (observation that tires barely crossed the left edge line held insufficient to justify stop on suspicion of lane control violation or impaired driving, and not justifiable under community caretaking exception); U.S. v. Colin. 314 F.3d 439 (9th Cir. 2002) (drift onto fog line for 10 seconds then a drift to the left traveling on yellow line for 10 seconds did not give officer probable cause to stop); U.S. v. Saldana. 55 Fed.Appx. 424 (2003); Rowe v. State. 769 A.2d 879, 69 CrL 89 (Md. 2001) (Brief crossings of a road's right edge-line did not provide probable cause to stop a driver for violating the single-lane law, Md. Code Section 21-309(b)); Frasier v. Driver. 172 Or.App. (2001) (lane travel statute requires more for a violation than a momentary crossing or touching of an edge or lane line); U.S. v. Gregory, 79 F.3d 973 (10th Cir. 1996) (an isolated incident of crossing two feet into the emergency lane on an interstate was not a violation); Sledge v. State. 239 Ga.App. 301 (1999) (upholding traffic stop under the lane travel statute where involved changing lanes without signaling, straddling lanes); Crooks v. State, 710 So.2d 1041 (Fla.App. 1998); Hernandez v. State, 983 S.W.2d 867 (Tex.App. 1998); Maddox v. State. 227 Ga.App. 602 (1997) (upholding traffic stop where driving involved weaving across lanes of traffic onto the shoulder); State v. Cerny. 28 S.W.3d 796 (Tex.App. 2000); State v. Tarvin. 972 S.W.2d 910 (Tex.App. 1998) (there must be more than mere touching or going over a fog line; there must be an indication of erratic or unsafe driving); State v. Lafferty. 291 Mont. 157, 967 P.2d 363 (1998) (touching or crossing fog line does not justify a stop unless vehicle operated erratically); State v. Caron. 534 A.2d 978 (Me. 1987) (stop may not be based on several brief, incidental lane violations that did not present a traffic safety issue); U.S. v Smith. 799 F.2d 704 (11th Cir. 1986) (crossing fog line by six inches not grounds for stop)

12. Because the purpose of lane control statutes is vehicle safety, "[a] vehicle's brief, one time straddling of the center line of an undivided highway is a common occurrence and, in the absence of oncoming or passing traffic, without erratic operation or other unusual circumstances, does not justify an intrusive stop by a police officer." Caron. 534 A.2d at 979.

13. In the present case, Deputy Mangino only reports two actual lane violations. Deputy Mangino did not report any oncoming traffic or other potential safety issues with Mr Leonard's driving. See generally. Id.; State v. Lafferty. 291 Mont. 157, 967 P.2d 363 (1998); State v....