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STATE v. EASTMAN3/12/1997
is about to commit a crime." State v. Wood, 662 A.2d 919, 920 (Me. 1995). For the stop to be reasonable, the court must find "that the officer actually entertained a concern and that the concern was reasonable under the circumstances." State v. Cusack, 649 A.2d 16, 18 (Me. 1994) (quoting State v. Burnham, 610 A.2d 733, 734 (Me. 1992)).
[ 7] The officer testified at the suppression hearing that he asked defendant to perform the tests because an odor of alcohol was coming from his car and because defendant admitted that he had been drinking. Defense counsel cross-examined the officer and asked whether he had "any suspicion" that he would find evidence of "intoxication" by asking defendant to perform the tests and the officer answered "No." On the basis of this answer, defendant argued to the District Court and now argues on appeal that the officer did not subjectively have the requisite articulable suspicion to constitutionally administer the sobriety tests. The District Court found that, although the officer had no preconceived notion of how the tests "were going to work out," the defense counsel misconstrued his testimony. The court concluded that he had good reasons for administering the tests that were legally sufficient for Fourth Amendment purposes.
[ 8] For purposes of determining the standard of review, we have held that " he nature of the detaining officer's subjective suspicion and the nature of the observations upon which that suspicion is based are questions of fact. State v. Fillion, 474 A.2d 187, 190 (Me. 1984). Whether an officer's suspicion is objectively reasonable is a question of law." Cusack, 649 A.2d at 18. "The ultimate question of justification — i.e. whether a reasonable suspicion exists in the mind of the officer — combines these elements. We will reverse the trial court's ultimate conclusion, containing as it does determinations of fact and law, only if no competent evidence exists to support it." State v. Fillion, 474 A.2d 187, 190 (Me. 1984).
[ 9] The District Court found that the officer entertained a suspicion that defendant was driving while under the influence of intoxicants. See Wood, 662 A.2d at 920-921 (reasonable basis for suspicion of being under the influence can exist independently of any evidence of actual impairment). In addition, the court found that the officer had good reason to ask the defendant to take the tests. Given the officer's testimony as to his state of mind, the smell of alcohol coming from defendant's car, defendant's admission to having had three beers, and the fact that the officer suspected defendant of igniting fireworks dangerously near others, the court did not clearly err in concluding that the officer had a reasonable suspicion.
II. Maine Privilege Against Self-incrimination
[ 10] The Maine Constitution provides:
In all criminal prosecutions, the accused . . . shall not be
compelled to furnish or give evidence against himself or
herself. . . .
Me. Const. art. I, § 6. Defendant contends that this language should be broadly interpreted to prohibit the State from compelling criminal defendants to submit to field sobriety tests because they are being "compelled to furnish or give evidence" against themselves. Field sobriety test results are generally considered to be physical or non-testimonial evidence. Pennsylvania v. Muniz, 496 U.S. 582, 602-603 n. 16, 110 S.Ct. 2638, 2651, n. 16, 110 L.Ed.2d 528 (1990). It is undisputed that the federal privilege against self-incrimination only prohibits the compulsion of evidence of a testimonial or communicative nature. See e.g. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830-1831, 16 L.Ed.2d 908 (196
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