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State v. Moulton
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 1997 ME 228
Docket: Wal-96-683
Submitted
on Briefs: September 16, 1997
Decided: December 10, 1997
PANEL: WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.
STATE OF MAINE
v.
SHIRLEY MOULTON
LIPEZ, J.
[¶1] Shirley Moulton appeals from the judgment entered in the
Superior Court (Waldo County, Kravchuk, J.) following her conviction for
operating under the influence (Class D) in violation of 29-A M.R.S.A. § 2411
(1996 & Supp. 1996).{1} On appeal Moulton contends that the District Court
(Belfast, Staples, J.) erred in denying her motion to suppress the evidence
derived from an investigatory stop, and that the Superior Court erred in
admitting testimony at trial concerning the horizontal gaze nystagmus test
administered by the arresting officer during the stop. We affirm the
judgment.
I.
[¶2] At 12:30 a.m. on September 16, 1995, while on routine patrol in
a marked police cruiser in Belfast, State Trooper Thomas Ballard observed a
car with its motor running and its lights on stopped in the roadway in front
of the Legion Hall. Noting that the car was blocking the travel lane and was
next to a "no parking" sign, Ballard pulled his cruiser alongside the car
without activating the cruiser's blue lights. He looked through his passenger
side window into the stopped car, where he observed Shirley Moulton in the
driver's seat and a male passenger kneeling on the front seat and leaning
over Moulton. She looked at Ballard with a "confused or dazed" expression.
[¶3] Ballard stepped out of his cruiser, approached the stopped car,
and asked Moulton if her car was disabled and whether she needed help.
Moulton responded that she was okay. Ballard immediately smelled a strong
odor of alcohol coming from inside the car, and observed that Moulton's
speech was slurred and that her eyes were glassy and red. He then asked
for her license and registration and requested that she step out of the car.
After repositioning his cruiser and activating its blue lights, Ballard asked
Moulton to perform four field sobriety tests, including the horizontal gaze
nystagmus (HGN) test,{2} each of which she performed poorly. On the basis of
these field sobriety tests and his other observations of Moulton, Ballard
arrested Moulton for operating under the influence.
[¶4] After entering a not guilty plea at her arraignment, Moulton filed
a motion to suppress all evidence derived from the stop, arguing in part that
Ballard lacked a reasonable suspicion to justify the stop. The court denied
the motion, finding that no seizure had occurred until Ballard requested
Moulton to produce her license and registration, at which time he did have
a reasonable suspicion to justify the stop. After transferring her case to the
Superior Court for a jury trial, Moulton objected at trial to the admission of
testimony by Ballard concerning the HGN test, arguing that its reliability had
not been established. The court overruled her objection, finding that 29-A
M.R.S.A. § 2525 (1996) authorized admission of Ballard's HGN testimony,
notwithstanding the absence of any showing of reliability. After establishing
that he was properly certified in drug recognition pursuant to statute,
Ballard testified about Moulton's poor performance on the HGN test.
[¶5] The court entered a judgment on a jury verdict finding Moulton
guilty of operating under the influence in violation of 29-A M.R.S.A. § 2411,
and this appeal followed.
II.
[¶6] Moulton argues that the court erred as a matter of law in
determining that she was not seized at the time Ballard pulled his cruiser
alongside her car. We will not disturb the court's decision unless we find
errors of law or clearly erroneous findings of fact. See State v. Stade, 683
A.2d 164, 165 (Me. 1996). In this case, neither party disputes the court's
factual findings, and we review the court's legal conclusion independently.
[¶7] An encounter between a police officer and a citizen implicates
the Fourth Amendment only if the officer "seizes" the citizen. See State v.
LaPlante, 534 A.2d 959, 962 (Me. 1987)(citing Florida v. Royer, 460 U.S.
491, 497-98 (1983)). We have held that 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 United
States v. Viegas, 639 F.2d 42, 44 (1st Cir. 1981)); see State v. Bleyl, 435
A.2d 1349, 1356 (Me. 1981); see also United States v. Mendenhall, 446 U.S.
544, 554 (1980) (a seizure occurs when, under a totality of the
circumstances, a reasonable person would believe she is not free to leave).
[¶8] We recognize, however, that "not all personal intercourse
between policemen and citizens" is a seizure within the meaning of the
Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968).
Although the place where the intrusion occurs is not the controlling
determinant of the seizure question, see State v. Griffin, 459 A.2d 1086,
1089 (Me. 1983), police officers do not violate the Fourth Amendment by
merely approaching an individual on the street or in another public place, or
asking her if she is willing to answer some questions. See LaPlante, 534
A.2d at 962. Compare id. (finding no seizure where officer stopped to
investigate a lone car in the breakdown lane of a highway) with State v.
Chapman, 495 A.2d 314, 316 (Me. 1985) (finding seizure where officer
positioned his cruiser so as to prevent any movement of the defendant's
truck); see generally 4 W. LaFave, Search & Seizure § 9.3(a) n.45 (1996 &
Supp. 1998) (collecting cases that hold there is no seizure when an officer
merely walks up to a person seated in a vehicle located in a public place and
puts a question to her).
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