State of Maine v. Douglas E. Wilcox , 2023 ME 10 ( 2023 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 10Docket: Yor-22-90
Argued: October 5, 2022
Decided: January 26, 2023
Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.
STATE OF MAINE
v.
DOUGLAS E. WILCOX
LAWRENCE, J.
[¶1] Douglas E. Wilcox appeals from a judgment of conviction for
operating under the influence (Class D), 29-A M.R.S. § 2411(1-A)(A)(1) (2022),
entered by the trial court (York County, Sutton, J.) upon a conditional guilty plea
entered after the court (Moskowitz, J.) denied Wilcox’s motion to suppress
evidence obtained through an Old Orchard Beach police officer’s interactions
with Wilcox in a convenience store parking lot. Because we conclude that the
officer’s actions were constitutionally sound and that the court properly denied
Wilcox’s motion to suppress, we affirm the judgment of conviction.
I. BACKGROUND
[¶2] On November 28, 2020, a police officer in Old Orchard Beach issued
Wilcox a uniform summons and complaint alleging that he had operated under
2
the influence the previous night. The State charged Wilcox by complaint on
December 18, 2020, with both operating under the influence, id., and operating
while license suspended or revoked (Class E), 29-A M.R.S.
§ 2412-A(1-A)(A)(1)-(4) (2022). Wilcox moved on multiple grounds to
suppress all evidence obtained as a result of his interactions with the officer at
the convenience store, including on the grounds that he was unlawfully seized
based on an unreliable anonymous tip and was directed to perform field
sobriety testing without being asked for his consent.
[¶3] The court held an evidentiary hearing on the motion. It heard
testimony from the officer who interacted with Wilcox at the convenience store
and admitted two videos from the officer’s body and cruiser cameras.
[¶4] The officer testified to the following events,1 most of which are also
depicted in the two videos that were admitted in evidence at the suppression
hearing.2 The officer was dispatched to a particular 7-Eleven store on
November 27, 2020, at about 10:20 p.m. The dispatcher informed the officer of
1 The court explicitly found that the officer was a credible witness.
2 Neither the State nor Wilcox contests the accuracy or authenticity of the video recordings
admitted at the suppression hearing, and we may, in our appellate capacity, consider the recordings
in their entirety as we review the court’s findings and conclusions. See State v. Athayde, 2022 ME 41,
¶ 29, 277 A.3d 387; State v. King, 2016 ME 54, ¶ 3, 136 A.3d 366 (relying on a video recording played
at a suppression hearing, in addition to the court’s findings, when setting forth the facts of the case).
3
an anonymous report that a brown Honda had struck something and was now
in the 7-Eleven parking lot. The person who made the report also conveyed a
belief that the driver was intoxicated. When the officer arrived at the 7-Eleven,
he found two brown Hondas—a car and a sport utility vehicle. After confirming
with dispatch that the vehicle in question was a car, the officer approached the
brown Honda car and found a man—later identified as Wilcox—crouched by
the front driver’s side of the car looking at the front tire. There was extensive
damage to the driver’s side of the vehicle, with bare metal and no rust. The
trunk of the car was open.
[¶5] The officer asked Wilcox what was going on. When Wilcox did not
respond and began to walk away toward the store with his hands in his pockets,
the officer told him to stop, keep his hands out of his pockets, and come toward
him. Wilcox said that he was “just going into the store real quick,” but he walked
toward the officer at the rear of his car, and the officer told him to have a seat
on the rear of the trunk.
[¶6] The officer asked what had happened and where the accident had
occurred, and Wilcox said that it had happened on the highway. He was
disheveled and emotional, and was slurring his speech as if his tongue were too
large for his mouth. The officer asked Wilcox questions about his health and
4
well-being, and Wilcox reported no injuries or ailments. The officer told Wilcox
that he was going to conduct field sobriety tests and offered Wilcox no
opportunity to decline. As a result of field sobriety testing, the officer
conducted additional alcohol and drug testing.
[¶7] Based on the testimony and video recordings, the court found that,
because the officer’s observations were consistent with what the anonymous
caller had said, the tip was sufficiently reliable for the officer to approach
Wilcox. The court found that the police officer located the car parked in a dark
area at the identified convenience store; noticed damage to the car, consistent
with the report, after shining a light on it; and approached Wilcox in a friendly
manner to ensure that he was okay and to see what had happened. The court
concluded that Wilcox had not been seized until the officer asked him to
complete field sobriety tests. It found that the officer had a reasonable
articulable suspicion to justify the field sobriety tests because Wilcox’s speech
was slurred and there was damage to his vehicle.
[¶8] After the court denied his motion to suppress, Wilcox entered a
conditional guilty plea to operating under the influence, and the court
(Sutton, J.) entered a judgment of conviction on March 18, 2022. The court
suspended Wilcox’s license for 150 days and sentenced him to pay a $500 fine.
5
The court dismissed the other count with the agreement of the parties. Wilcox
timely appealed from the judgment of conviction. See 15 M.R.S. § 2115 (2022);
M.R. App. P. 2B(b)(1).
II. DISCUSSION
[¶9] Wilcox argues that the court (Moskowitz, J.) should have granted his
motion to suppress because the officer who interacted with him violated the
Fourth Amendment to the United States Constitution3 when he detained Wilcox
at the convenience store, questioned him, and administered field sobriety
tests.4 We consider the constitutionality of both (A) the officer’s initial
detention of Wilcox for questioning and (B) his administration of field sobriety
tests. “We review questions of constitutional interpretation de novo.” State v.
Reeves, 2022 ME 10, ¶ 42, 268 A.3d 281.
3 “The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV.
4 Although Wilcox argues on appeal that we should interpret the Maine Constitution in accordance
with the reasoning of the dissent in Navarette v. California, 572 U.S. 393, 404-14 (2014) (Scalia, J.,
dissenting), Wilcox did not argue to the trial court that the Maine Constitution provides more
protection than the federal constitution and indeed cited the Navarette majority opinion in support
of his motion to suppress. See State v. Thornton, 485 A.2d 952, 952-53 (Me. 1984) (declining to
review an argument based on a provision of the Maine Constitution when the appellant failed to raise
the issue to the court ruling on his motion to suppress and review was not necessary “to prevent a
manifest miscarriage of justice or to correct a lower court’s overstepping of its jurisdictional
bounds”). Wilcox thereby waived the argument that he now asserts on appeal. See State v. Reynolds,
2018 ME 124, ¶ 28, 193 A.3d 168. We therefore address only his arguments challenging the trial
court’s application of federal constitutional law.
6
A. Investigatory Seizure of Wilcox
[¶10] Wilcox first argues that he was unlawfully seized before the officer
conversed with him and observed his speech because the officer directed him
to stop, keep his hands out of his pockets, step toward the officer, and sit on the
rear bumper. Wilcox argues that the officer did not have reasonable articulable
suspicion to seize him at that time because the anonymous tip lacked sufficient
indicia of reliability, particularly on the issue of intoxication.
[¶11] “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. White, 2013 ME 66, ¶ 11,
70 A.3d 1226 (quotation marks omitted). As the State conceded at oral
argument, the officer restrained Wilcox’s liberty through a show of authority
by ordering him to remove his hands from his pockets, stop, come toward the
officer, and sit on the rear of his vehicle’s trunk. See White, 2013 ME 66, ¶ 11,
70 A.3d 1226; see also State v. Patterson, 2005 ME 26, ¶ 14, 868 A.2d 188 (“[A]
reasonable person would not feel free to disobey an order from a police
officer . . . .”). The trial court erred in concluding that there was no seizure at
that time. The question, then, is whether the court’s findings nonetheless
7
demonstrate that the seizure was lawful, because of either safety concerns or a
suspicion of a violation of law.
[¶12] “Brief investigatory detentions are justified when they are based
on specific and articulable facts, and can be solely for safety concerns as part of
the community caretaking function[] of police officers, which includes
investigat[ing] vehicle accidents in which there is no claim of criminal liability.”
State v. Bragg, 2012 ME 102, ¶ 10, 48 A.3d 769 (quotation marks omitted).
“Safety reasons alone can be sufficient if they are based upon specific and
articulable facts.” State v. Pinkham, 565 A.2d 318, 319 (Me. 1989) (quotation
marks omitted).
[¶13] Brief investigatory detentions are also acceptable if they are based
on specific facts that give rise to a reasonable, articulable suspicion that either
criminal conduct or a civil violation “has occurred, is occurring, or is about to
occur.” State v. Sylvain, 2003 ME 5, ¶ 11, 814 A.2d 984. “The suspicion need
only be more than speculation or an unsubstantiated hunch.” State v. LaForge,
2012 ME 65, ¶ 10, 43 A.3d 961 (quotation marks omitted). “[A] tip—even an
anonymous one—may be reliable if the information is corroborated by the
officer.” State v. Vaughan, 2009 ME 63, ¶ 12, 974 A.2d 930.
8
[¶14] Because the officer had confirmed that the caller accurately
identified the type of vehicle, its color, its location, and its involvement in a
recent collision, it was reasonable for the officer to infer that the caller had
observed the collision that resulted in damage to Wilcox’s car and the car’s
progress to the convenience store. Based on the tip and the officer’s
observations, it was then reasonable for the officer to have Wilcox sit on the
rear bumper to see if he was safe or required medical attention.5 The record
supports the trial court’s finding that the officer intended to ascertain Wilcox’s
safety and well-being; the evidence shows that the officer asked Wilcox what
had happened and where, followed quickly by an inquiry into whether Wilcox
was injured and needed an ambulance. Such an investigation of a reported
accident can be as much a part of an officer’s role as a community caretaker,
see Bragg, 2012 ME 102, ¶ 10, 48 A.3d 769; Pinkham, 565 A.2d at 319, as it is
5 Wilcox, citing State v. Sasso, 2016 ME 95, ¶ 20, 143 A.3d 124, argues that the State should be
precluded from raising this justification for the seizure because it did not raise the argument to the
trial court and the court did not rule on the question. Unlike in Sasso, however, the trial court here
did find that the officer interacted with Wilcox to confirm his well-being after an accident, and indeed
stated that “it might have been a dereliction of duty if [the officer] did not” investigate upon
discovering the damaged vehicle in the parking lot of the convenience store when acting on the
anonymous tip. The record supports the court’s finding that the officer was “essentially asking
Mr. Wilcox whether he was okay and what happened” when he first approached Wilcox. Cf. id.(“Because the State did not argue that the malfunctioning brake light constituted a crime and did not
offer or rely on the motor vehicle inspection regulations, this record would not support a finding that
the officer had an objectively reasonable, articulable suspicion that a crime or traffic infraction was
occurring.” (footnote omitted)).
9
central to an officer’s task of ascertaining whether criminal conduct has
occurred, is occurring, or is about to occur, see State v. Swett, 1998 ME 76, ¶¶ 2,
4, 709 A.2d 729. The court thus found facts demonstrating a legitimate basis
for the officer to seize Wilcox for investigatory questioning. We next consider
the constitutionality of the officer’s administration of field sobriety tests.
B. Field Sobriety Testing
[¶15] To determine whether the field sobriety testing was
constitutionally sound, we consider (1) whether the testing constituted a
warrantless search for which consent was required and (2) if not, whether the
officer had reasonable articulable suspicion of intoxication to conduct the
testing as part of a limited investigatory seizure.
1. Field Sobriety Testing as a Search
[¶16] Wilcox argues that the officer should have asked for Wilcox’s
consent to field sobriety testing because a field sobriety test constitutes a
search for which a warrant is required unless an exception to the warrant
requirement—such as the procurement of consent6—applies. We have held
6“For the consent exception to the warrant requirement to apply, [t]he State must prove by a
preponderance of the evidence that consent was objectively manifested by word or gesture and was
freely and voluntarily given.” State v. Croteau, 2022 ME 22, ¶ 21, 272 A.3d 286 (quotation marks
omitted).
10
that a brief detention of a driver to “[s]ubject[] the driver to field sobriety tests,”
Sylvain, 2003 ME 5, ¶ 18, 814 A.2d 984, is allowed if an officer has “a reasonable
articulable suspicion of impairment,” State v. McPartland, 2012 ME 12, ¶ 8,
36 A.3d 881. The intrusion on a person occasioned by field sobriety testing
does not amount to an arrest for which probable cause is required, largely
because “[t]he performance of a couple of quick, simple physical coordination
tests is not particularly onerous, offensive or restrictive.” State v. Little, 468
A.2d 615, 617 (Me. 1983). We have consistently regarded such testing as an
extension of an investigatory stop or detention. See McPartland, 2012 ME 12,
¶ 8, 36 A.3d 881.
[¶17] A handful of other jurisdictions have held that field sobriety testing
is a search, after determining that a person has an expectation of privacy in
undertaking physical tasks that are not in the ordinary course of the person’s
conduct.7 We have already weighed the governmental and personal privacy
interests at stake, however, in deciding that a reasonable articulable
7 See, e.g., State v. Nagel, 880 P.2d 451, 455-56 (Or. 1994) (holding that field sobriety tests
constitute a search for which, absent a warrant, probable cause is required); People v. Carlson,
677 P.2d 310, 316-18 (Colo. 1984) (same), overruled in part on other grounds by People v.
Chavez-Barragan, 379 P.3d 330, 338 (Colo. 2016); Blasi v. State, 893 A.2d 1152, 1164, 1167-68
(Md. Ct. Spec. App. 2006) (holding that field sobriety tests constitute a search for which reasonable
articulable suspicion—not probable cause—is required); Hulse v. State, Dep’t of Justice, Motor Vehicle
Div., 961 P.2d 75, 85-87 (Mont. 1998) (holding that field sobriety tests constitute a search for which
particularized suspicion—not probable cause—is required).
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suspicion—not probable cause—is required to seize a person for field sobriety
testing:
The reasonableness in general of the field sobriety tests is
measured by balancing the level of intrusion on individual privacy
against the particular law enforcement interests which would be
served by permitting it on less than probable cause. The law
enforcement interest that the tests serve is to help a police officer
assess promptly the likelihood that a driver is intoxicated and to
provide [the officer] with a reliable basis for making an arrest . . . ,
thereby preventing the driver from potentially killing or maiming
[the driver] or others. To require probable cause for arrest before
the tests could be administered would defeat their very purpose.
The State’s interest in conducting field sobriety tests on less than
probable cause, therefore, substantially outweighs the resultant
intrusion on individual privacy, which is slight indeed. Hence, as a
general rule, the procedure is reasonable.
Little, 468 A.2d at 617 (citations omitted); cf. State v. Superior Ct., 718 P.2d 171,
175-76 (Ariz. 1986) (holding that although field sobriety testing is a search,
only a reasonable articulable suspicion, and not probable cause, is required).
We therefore conclude that the field sobriety testing of Wilcox was not a search
but rather part of a limited investigatory seizure. See Little, 468 A.2d at 617.
Only a reasonable articulable suspicion of safety concerns was required to
begin the limited seizure and then, after a brief investigation, only a reasonable
articulable suspicion of intoxication was required to conduct field sobriety
testing. See id.
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2. Reasonable Articulable Suspicion to Administer Field Sobriety
Tests
[¶18] The standard of reasonable articulable suspicion “requires less
than probable cause that a crime was being committed, but more than
speculation or an unsubstantiated hunch.” State v. Brown, 675 A.2d 504, 505
(Me. 1996) (quotation marks omitted). An anonymous tip can form the basis
of a reasonable articulable suspicion of criminal activity. See State v. Littlefield,
677 A.2d 1055, 1057 (Me. 1996). Courts will ordinarily consider, in
determining whether gathered information that began with an anonymous tip
gave rise to a reasonable articulable suspicion of wrongdoing,
• the extent and specificity of predictive detail regarding future
criminal activity contained in the tip;
• the extent to which the predictive detail contained in the tip
involved information that could be supplied only by a person
with knowledge of the criminal activity alleged, rather than
information available more generally or to the public at large;
and
• the extent to which the police were able to confirm the accuracy
of the predictive detail in the tip through their own observation
or independently obtained, reliable information.
State v. Barclift, 2022 ME 50, ¶ 18, 282 A.3d 607.
[¶19] The focus in this matter is not on the anonymous caller’s prediction
of criminal activity but on the corroboration and confirmation of the details
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provided in the anonymous tip. See id.; State v. Lovell, 2022 ME 49, ¶ 17, 281
A.3d 651. “[C]orroboration can consist of the officer verifying details such as
the physical description and location of the suspect and does not require that
an officer observe illegal behavior.” Lovell, 2022 ME 49, ¶ 17, 281 A.3d 651(quotation marks omitted).
[¶20] Here, the caller shared information beyond a description of the
vehicle and an instance of irregular driving. Cf. Navarette v. California, 572 U.S.
393, 399 (2014) (holding that a report of an identifiable car running another
car off the road was sufficient to generate a reasonable articulable suspicion of
intoxicated driving). Specifically, the caller indicated that a brown Honda car
had collided with an object, that the car was now at a specific convenience store,
and that the caller thought the driver was intoxicated. Cf. Florida v. J.L., 529 U.S.
266, 268, 271-72 (2000) (holding that an anonymous tip lacked sufficient
indicia of reliability when the caller merely stated that a “young black male
standing at a particular bus stop and wearing a plaid shirt was carrying a gun”).
[¶21] This case is distinct from the situation we recently addressed in
Barclift, where we held that law enforcement lacked reasonable articulable
suspicion to stop a traveler because there was no corroborating information for
the illegal activities asserted by the anonymous tip. 2022 ME 50, ¶¶ 3-5, 23-26,
14
282 A.3d 607. The anonymous tip there indicated that a rap artist regularly
purchased tickets, using an alias, to travel an identified bus route from New
York to Maine; carried with him large quantities of drugs in a backpack; and
usually carried a firearm. Id. ¶¶ 3, 25 & n.15. The only corroborative
information the police obtained was that a rap artist with a criminal history
regularly traveled by bus between New York and Maine—information that was
insufficient to establish a reasonable articulable suspicion of wrongdoing. Id.
¶¶ 4, 23-26 & nn.6, 15, 17.
[¶22] Here, upon arriving at the convenience store specifically identified
by the anonymous caller, the officer immediately observed a situation that
confirmed most of the information in the anonymous tip: he found a vehicle
fitting the caller’s description at the specified convenience store with
significant damage to the vehicle and a man outside the vehicle examining the
damage. The officer then confirmed a suspicion of intoxication upon
questioning the man, who slurred his speech while responding. An anonymous
tip combined with observed circumstances can give rise to reasonable
articulable suspicion. Compare State v. Caron, 534 A.2d 978, 979 (Me. 1987)
(holding that the officer lacked reasonable articulable suspicion upon
observing a “single, brief straddling of the center line of the undivided highway,
15
with no oncoming traffic in sight and no vehicles passing on the left, not
constituting a violation of any traffic law”), with State v. Lafond, 2002 ME 124,
¶ 13, 802 A.2d 425 (upholding the admission of field sobriety and other test
results when there was “a straddle plus an anonymous tip with sufficient
specificity that the vehicle could be located”).
[¶23] Given the damage to the vehicle here, it was reasonable for the
officer to infer that the vehicle had been involved in the reported collision, and
in such circumstances, an investigatory seizure was reasonable. See State v.
Dulac, 600 A.2d 1121, 1123 (Me. 1992) (affirming a determination of
reasonable articulable suspicion to stop a vehicle after it made an extremely
wide turn, causing the vehicle to leave the paved surface of the road and pass
onto snow). These circumstances, combined with Wilcox’s slurred speech
when speaking with the officer, gave rise to reasonable articulable suspicion of
intoxication. See State v. Moulton, 1997 ME 228, ¶ 10, 704 A.2d 361 (listing
slurred speech as one indicium of intoxication); State v. Wood, 662 A.2d 919,
921 (Me. 1995) (same).
[¶24] The officer did not violate the United States Constitution by
conducting field sobriety tests in these circumstances. He could seize Wilcox
for this limited purpose given the corroborated information from the
16
anonymous tip, including the location of the car, the damage to it, and Wilcox’s
slurring of his words when asked what happened, where it happened, and
whether he needed medical attention. The court properly denied Wilcox’s
motion to suppress, and we affirm the resulting judgment of conviction.
The entry is:
Judgment affirmed.
Tyler J. Smith, Esq. (orally), Libby O’Brien Kingsley & Champion, LLC,
Kennebunk, for appellant Douglas E. Wilcox
Kathryn Slattery, District Attorney and Mark E. Squires, Asst. Dist. Atty. (orally),
Prosecutorial District 1, Alfred, for appellee State of Maine
York County Unified Criminal Docket docket number CR-2020-22225
FOR CLERK REFERENCE ONLY