State v. Gerald Forsyth
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 75
Docket:	Som-01-699
Argued:	April 3, 2002
Decided:	May 3, 2002	

Panel:SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS and
LEVY, JJ.

STATE OF MAINE

v.

GERALD A. FORSYTH

CLIFFORD, J.

	[¶1]  Pursuant to 15 M.R.S.A. § 2115-A(1) (Supp. 2001),{1} the State
appeals from an order of the District Court (Skowhegan, Clapp, J.), suppressing
evidence of the results of the blood-alcohol level test given to the defendant,
Gerald A. Forsyth.{2}  We agree with the State's contention that the evidence
was more than sufficient to establish that there was probable cause to believe
that Forsyth was under the influence of intoxicants and for the administration
of a blood-alcohol test, and that the District Court erred in concluding
otherwise.  Accordingly, we vacate that part of the District Court's order
suppressing the results of the blood-alcohol test.
	[¶2]  The District Court made the following undisputed findings, which
are well supported by the record:

	At about 8:30 p.m. on [June] 30, 2000, Gerald Forsyth drove
into the United States border checkpoint north of Jackman, Maine
as if arriving from Canada.  He pulled into the wrong side of the
checkpoint and was advised by Federal INS officer [Roy] Williams
that he must back up and drive his vehicle into the checkpoint on
the other (southbound) side.  Instead, he backed his car up [into]
an annex parking lot and shut off the vehicle's lights.   He
remained there for [a] while and eventually put the lights back on
and, once again, drove it into the wrong entry side.  He was again
instructed to back up and enter on the appropriate side.  He then
did this.  The greeting Customs Officer, [Lori] Poulin, noticed a
smell of alcohol on Mr. Forsyth's breath and observed him to be
disorientated.  Mr. Forsyth appeared to not know that he had been
in Canada.  He advised the officer that he had been drinking from
a pint sized bottle of whiskey which he said he had purchased
earlier in the day in New Hampshire.  The officer had Mr. Forsyth
exit the vehicle and the car was searched.  The officer confiscated
that partly empty whiskey bottle and several firearms, one loaded. .
. .  [This] information was relayed to Officer Darryl Peary of the
Maine State Police who Officer Williams called to report suspected
OUI and firearm violations.  This call was made [at] about 9:00
p.m. and Officer Peary, then on patrol many miles away, arrived at
the checkpoint approximately two hours later.  In the interim, the
federal officers, both armed and in uniform, detained Mr. Forsyth
in their presence in the lobby of this remote checkpoint. . . .  Mr.
Forsyth was still dutifully sitting where he had been instructed to
sit in the lobby when Officer Peary arrived shortly before 11:00 p.m. 
Officer Peary initially conferred with Officer Williams and learned
the details of the officers' observations and accepted possession of
the items confiscated by them . . . .  Officer Peary then approached
Mr. Forsyth with the intention to investigate the OUI and firearms
violations referred to him [by] the federal officers.
	Initial investigatory questioning of Mr. Forsyth informed
Officer Peary that the Defendant had been traveling that day from
Connecticut to a friend's home in Solon, Maine.  The officer
observed that Mr. Forsyth appeared disoriented and did not know
how he came to be at the border checkpoint.  He informed the
officer that he had relatives in Calais, Maine.  He smelled of
alcohol consumption and had red and glassy eyes.  He confirmed
to the officer that he had purchased the whiskey in New
Hampshire just before entering Maine at 1:00 or 1:30 p.m. and had
immediately begun consuming its contents as he traveled north. 
The Officer then told Mr. Forsyth to rate his state of sobriety on a
scale of 1 to 10 with 1 being entirely sober and 10 being totally
drunk.  Mr. Forsyth replied "3 or 4."

	[¶3]  Officer Peary then took Forsyth into the office off of the lobby and
conducted six field sobriety tests.  Officer Peary first performed an Horizontal
Gaze Nystagmus (HGN) examination, which consisted of some verbal
components in that Forsyth was required to respond to certain preliminary
questions concerning whether Forsyth had any neurological or medical
conditions.  Officer Peary observed five intoxication clues of the HGN
procedure, which indicated to him that Forsyth was impaired, potentially due
to the influence of alcohol.  The officer then asked Forsyth to recite the
alphabet from E to L, but Forsyth failed the requested recitation on three
attempts. 
	[¶4]  Officer Peary then asked Forsyth to count backwards from
sixty-seven to fifty-eight.  Forsyth failed to stop at fifty-eight and continued
onto forty-nine in his attempt to repeat the requested recitation.  Forsyth
failed a finger dexterity test, which included a verbal component of him
counting from one to four and then from four to one in succession.  Forsyth
attempted a walk and turn test with a verbal counting component that is
intended to examine a person's balance and ability to follow instructions. 
Forsyth improperly turned in the middle of the test and stepped over one-half
of an inch out of line on one step, and stepped completely out of line on
another step.  Forsyth was unable to properly complete the one-leg stand test,
which involved standing on one leg and counting by seconds until told to stop. 
	[¶5]  Based on the information he received from the INS officers, in part
on the field sobriety tests, and on his own personal observations of Forsyth,
Officer Williams concluded that Forsyth had probably been operating under the
influence at 9:00 p.m. and administered an implied consent blood-alcohol level
test at about 11:10 p.m.  Forsyth was also questioned about the loaded gun. 
Forsyth was never given a "Miranda" warning.
	[¶6]  After being charged with operating under the influence of
intoxicants in violation of 29-A M.R.S.A. § 2411 (1996) (Class D){3} and with
possessing a loaded firearm in a motor vehicle in violation of 12 M.R.S.A.
§ 7406(9-A)(B) (Class E),{4} Forsyth filed a motion to suppress, arguing that all
the oral statements made by him to Officer Peary, including the verbal
components of the field sobriety tests should be excluded because those
comments were made in response to custodial interrogation without a Miranda
warning.  At the suppression hearing, Forsyth amended his motion to suppress
to include a "fruit of the poisonous tree" claim grounded in Dickerson v. United
States, 530 U.S. 428, 438-43 (2000), in which the United States Supreme Court
concluded that the exclusionary rule may apply to Miranda violations in some
cases.  With this latter argument, Forsyth sought to suppress as "poisonous
fruit" all the field sobriety test results, all the observations made by Officer
Peary during those tests, as well as the results of the blood-alcohol level test
that was administered to Forsyth.
	[¶7]  The District Court granted the motion in part.  The court
suppressed all of Forsyth's oral statements made in response to Officer Peary's
questioning, except for his answers to routine booking questions, and
suppressed the verbal components of the field sobriety tests because it
concluded that Forsyth was in custody at the time of the questioning and was
not properly informed of his Miranda rights prior to making the statements. 
The court also suppressed the blood-alcohol level test results, reasoning that
without Forsyth's responses to Officer Peary's questioning and without the
verbal components of the field sobriety test there was insufficient probable
cause to administer the test.  The court relied on Officer Peary's subjective
belief that there was insufficient probable cause to administer the test without
Forsyth's responses and the verbal components of the field sobriety tests.
	[¶8]  The State appeals only from the District Court's decision to
suppress the blood-alcohol level test, and contends that that part of the order
to suppress should be vacated because the District Court erred in concluding
that there was no probable cause for administering the test.{5}
	[¶9]  	We review rulings on motions to suppress for errors of law or
clearly erroneous findings of fact.  State v. Anderson, 1999 ME 18, ¶ 6, 724 A.2d
1231, 1233.  "A ruling on a motion to suppress evidence based on
uncontroverted facts involves a legal conclusion that we review independently
on appeal."  State v. Stade, 683 A.2d 164, 165 (Me. 1996).  Neither party
disputes the factual findings made by the District Court, but the State
challenges the District Court's legal conclusions drawn from those facts.  We
review those conclusions de novo.  See id.
	[¶10]  Submission to an implied consent blood-alcohol level test is
mandatory if an officer has probable cause to believe that a person has
committed an OUI violation.  29-A M.R.S.A. § 2521(1) (1996 & Supp. 2001). 

Probable cause to arrest [or search] exists whenever facts and
circumstances within the knowledge of the police and of which
there was reasonably trustworthy information would warrant a
prudent and cautious person to believe that the arrestee had
committed the crime.  The information determining the existence
of probable cause is not limited to what [one officer] knew of his
own personal knowledge, but includes all the information known
to the police.

State v. Candage, 549 A.2d 355, 360 (Me. 1988) (citation omitted); see also State
v. Carr, 1997 ME 221, ¶ 7, 704 A.2d 353, 356 ("probable cause is evaluated
from the collective information known to the police rather than the personal
knowledge of the arresting officer").  The determination of the existence of
probable cause "is based on an objective standard, not on whether the particular
officer believed he had probable cause."  State v. Foy, 662 A.2d 238, 240 (Me.
1995); accord State v. Boylan, 665 A.2d 1016, 1019 (Me. 1995); State v. Enggass,
571 A.2d 823, 825 (Me. 1990); State v. Parkinson, 389 A.2d 1, 8 (Me. 1978); State
v. Heald, 314 A.2d 820, 828 (Me. 1973).
	[¶11]  In Enggass, 571 A.2d at 824-25, the arresting officer observed the
defendant's car do a 360-degree turn in the road and twice swerve sharply while
travelling a quarter of a mile.  When the officer pulled the defendant's car over,
"he observed that defendant's eyes were 'real bloodshot,' that defendant's
speech was 'hesitant, real distinct' as if 'he was concentrating on what he was
saying,' and that defendant smelled of alcohol."  Id. at 825.  The defendant
then failed to properly perform each field sobriety test administered by the
officer.  Id.  When asked to take a pass/fail blood-alcohol test, the defendant
replied that his results would be a "whopper" because he had been drinking
heavily.  Id.  
	[¶12]  In granting the defendant's motion to suppress all of the officer's
observations as well as the blood-alcohol test result, the trial court in Enggass
concluded that the arresting officer relied on an inappropriate preliminary
pass/fail blood-alcohol test in determining that probable cause existed to
arrest the defendant for a suspected OUI violation.  Id.  The trial court stated
that regardless whether

the officer may have had all the reason in the world to find
probable cause for arrest, . . . [because the officer] said that part of
his decision for making the arrest had to do with the fact
that . . . [the defendant] failed to pass the pass/fail [blood-alcohol
test] . . . [which] is not acceptable as one of the factors to be used
in the form of proof, [the trial court was] going to find that [the
officer] didn't have probable cause for arrest.

Id. at 824.
	[¶13]  We vacated the trial court's suppression order and explained that
by looking at what the officer subjectively believed, the trial court employed the
wrong standard in determining whether there was sufficient probable cause
because probable cause is based on an objective standard.  Id. 824-25.  We
concluded that there was more than enough evidence "to warrant 'the belief of
a prudent and cautious person' that the defendant was operating under the
influence," even without the preliminary pass/fail blood-alcohol test.  Id. at
825.
	[¶14]  In the case of Forsyth's stop, there was more than sufficient
evidence to support a reasonable belief that Forsyth was driving while
intoxicated.  "The probable cause standard for requiring a person to take a
blood-alcohol test has a very low threshold."  State v. Webster, 2000 ME 115, ¶
7, 754 A.2d 976, 977-78; see also State v. Bolduc, 1998 ME 255, ¶ 7, 722 A.2d
44, 45 (the standard for probable cause is less than that for a fair
preponderance of the evidence).  For there to be probable cause for OUI, an
officer only needs evidence sufficient to support the reasonable belief "that the
person's senses are affected to the slightest degree, or to any extent, by the
alcohol that person has had to drink."  Webster, ¶ 7, 754 A.2d at 978.  As an
example, we have held that an officer's observation that the defendant made an
improper u-turn, along with, after pulling the defendant over, smelling a strong
odor of alcohol on the defendant's breath and hearing the defendant make an
incredible statement believed to be made to cover-up the defendant's
impairment, was more than sufficient to establish probable cause.  Id.
	[¶15]  In this case, Officer Peary could rely upon the information provided
to him by the INS officers, which included the following: Officers Williams and
Poulin observed Forsyth twice drive his vehicle into the wrong side of the
border checkpoint, once after being instructed on which lane to properly
proceed into.  The officers noticed a smell of alcohol on Forsyth's breath.  They
observed Forsyth to be disorientated, and it appeared to them that he did not
know that he had been in Canada.  Forsyth readily admitted to the officers
that he had been drinking from a pint-sized bottle of whiskey, which they
confiscated.  Officer Peary also noticed that an odor of alcohol emanated from
Forsyth's person, that Forsyth's eyes were red and glossy, and that Forsyth
appeared to be disorientated when Officer Peary spoke with him.  Forsyth's
signalling of impairment during the HGN test, along with his poor turn and
missteps during the walk-and-turn test, combined with the other facts present
here, abundantly establish the reasonable belief of a prudent and cautious
officer that Forsyth had been operating his vehicle while under the influence of
alcohol, and more than justify Officer Peary's request that Forsyth submit to a
blood-alcohol level test.  The District Court's conclusion that there was
insufficient evidence of probable cause is erroneous.
	[¶16]  Forsyth's contention that the trial court properly deferred to the
officer's subjective opinion that, absent consideration of Forsyth's statements,
he lacked probable cause is incorrect.  A trial court may consider the factual
inferences drawn by police officers, but should not defer to an officer's
subjective opinion as to whether the totality of information available to him or
her dictates a particular conclusion of law.  See United States v.  Arvizu, -- U.S.
--, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) (giving deference to the
factual inferences drawn by experienced police officers and the district court
judge, but assessing the legal conclusion of reasonable suspicion de novo.)
	The entry is:
Order of the District Court is vacated in part. 
Remanded to the District Court for further
proceedings consistent with this opinion.
                                                                                       

Attorneys for State:

G. Steven Rowe, Attorney General
Donald W. Macomber, Asst. Attorney General (orally)
6 State House Station
Augusta, ME 04333-0006

Attorney for defendant:

Wayne R. Foote, Esq. (orally)
Foote & Temple
P O Box 1576
Bangor, ME 04402-1576

FOOTNOTES******************************** {1} . Section 2115-A(1) provides that, appeals may be taken by the State from the District Court, directly to the Law Court, on questions of law in criminal cases "[f]rom an order of the court prior to trial which suppresses any evidence, including, but not limited to, physical or identification evidence." 15 M.R.S.A. § 2115-A(1) (Supp. 2001). {2} . The State obtained the necessary approval of the Attorney General prior to filing this appeal as required by 15 M.R.S.A. § 2115-A(5) (Supp. 2001) and M.R. App. P. 21(b). {3} . Section 2411 states, in pertinent part, the following: 1. Offense. A person commits OUI, which is a Class D crime unless otherwise provided, if that person operates a motor vehicle: A. While under the influence of intoxicants; or B. While having a blood-alcohol level of 0.08% or more. {4} . Section 7406(9-A)(B) provides that "a person is guilty of . . . having a loaded firearm in or on a motor vehicle if that person . . . [w]hile in or on a motor vehicle . . . has any firearm with a cartridge or shell in the chamber or in an attached magazine." 12 M.R.S.A. § 7406(9- A)(B). {5} . The State is not appealing the District Court's finding that Forsyth was in custody for Miranda purposes, nor is it appealing from the court's decision to suppress the testimonial components of the field sobriety tests; rather the State challenges the trial court's conclusion that the arresting officer lacked probable cause to administer a blood-alcohol test to Forsyth.