State v. Anthony Swett
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:1998 ME 76
Docket:Pen-97-460
Submitted
on Briefs:March 13, 1998
Decided:	April 15, 1998


Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ.

STATE OF MAINE

v.

ANTHONY B. SWETT

WATHEN, C.J.

	[¶1]    Defendant Anthony Swett appeals from a judgment entered in
the Superior Court (Penobscot County, Kravchuk, J.) convicting him of
operating under the influence of intoxicants in violation of 29-A M.R.S.A. §
2411 (1996).  Defendant entered a conditional plea of guilty and appeals the
District Court's (Bangor, Russell, J.) denial of his suppression motion.  He
argues that the court erred in finding that his arrest was supported by
probable cause and that he was not subjected to custodial interrogation. 
Finding no error, we affirm the judgment.
	[¶2] The relevant facts may be briefly stated as follows: Officer Martin
of the Brewer Police Department was on patrol duty and received a radio
message that the "State Police and the Bangor Police Department were
looking for a black older model Mercury . . . that was involved in a hit and
run accident, [and] left the scene." Officers were asked to stop and hold the
vehicle.  Officer Munson stopped the vehicle as defendant drove into a
parking lot.  Officer Martin joined him moments later.  Both officers
approached the vehicle and requested defendant's driver's license.  Officer
Martin detected the smell of beer coming from the vehicle and saw a half-
full twelve pack of beer in the back seat.  Officer Martin informed defendant
that he had been "stopped for another agency." Approximately three to five
minutes later, two State Police officers arrived.  After talking with Officer
Martin, they interviewed defendant.  Defendant admitted that he was the
driver of the car, and, because the officers could smell alcohol on his breath,
they administered field sobriety tests and a balloon kit test.  In light of the
information known to the officers and defendant's poor performance on the
sobriety tests, defendant was arrested for operating under the influence.
	[¶3] Defendant's argument with regard to probable cause is without
merit.  The court did not err in finding that an ordinarily prudent and
cautious police officer would believe that defendant committed a crime.  See
State v. Boylan, 665 A.2d 1016, 1018 (Me. 1995).
	[¶4] He also contends that because he was detained until the State
Police arrived, he was actually in police custody.  From this premise, he
argues that he was interrogated without appropriate warnings concerning
his rights.  A Miranda warning is required only if a defendant is in custody
and subject to interrogation.  State v. Carr, 1997 ME 221, ¶ 10, 704 A.2d
353, 356.  We will reverse the court's determination as to custody only if it
is not rationally supported.  Id.  Despite the fact that the traffic stop was
prolonged by the need to wait for the State Police to arrive, the court did
not err in finding that defendant was not in custody.  He was in fact
subjected to an investigatory detention that was supported by a reasonable
articulable suspicion of criminal conduct.
	[¶5] Finally, defendant contends that the court erred in denying his
motion to dismiss the complaint.  Defendant's arrest was taped by video and
audio equipment located inside Officer Martin's vehicle.  The video tape was
activated automatically when Officer Martin turned on his blue lights and it
continued to run throughout the stop.  The audio equipment, however, was
activated only when Officer Martin was speaking with defendant.  Defendant
now argues that the officer's failure to record the entire stop and arrest is
the equivalent of an officer's knowing destruction of evidence.  Defendant
cites no authority to support his theory nor are we aware of any.  The motion
to dismiss was properly denied.
	The entry is:
					Judgment affirmed.
                                                                          
Attorneys for State:

R. Christopher Almy, District Attorney
C. Daniel Wood, Asst. Dist. Atty.
James Diehl, Asst. Dist. Atty.
97 Hammond Street
Bangor, ME 04401

Attorney for defendant:

Joseph M. Baldacci, Esq.
P O Box 1423
Bangor, ME 04402-1423