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STATE v. BROWN5/2/1997
[ 1] Ray F. Brown appeals from the judgment of a conviction of operating motor vehicle under the influence of alcohol in violation of 29-A M.R.S.A. § 2411 (1996) entered in the Superior Court (Penobscot County, Mead, J.), following his conditional plea of guilty entered pursuant to M.R.Crim.P. 11(a)(2). Brown challenges the Superior Court's affirmance of the decision of the District Court (Millinocket, Gunther, J.) denying his motion to suppress all evidence obtained from the stop of his vehicle. Brown contends that the court committed clear error in holding that the stop of his vehicle was based on a reasonable, articulable suspicion that Brown was engaged in a civil traffic violation. Finding no error, we affirm the judgment.
[ 2] At the hearing on Brown's motion to suppress, the arresting officer, Thomas Jamo of the East Millinocket Police Department, testified as follows: On June 17, 1995, at approximately 3:25 p.m., while on patrol in East Millinocket, he observed Brown's pick-up going at a slow rate of speed across an alleyway that runs between Birch Street and Beech Street. The alleyway is a public way to which a speed limit of 25 m.p.h. applies. He estimated the speed of Brown's vehicle to be approximately 5 m.p.h., and recognized the vehicle as belonging to Brown.
[ 3] The officer testified that he intended to stop the vehicle to determine why it was proceeding so slow and that he continued up Birch Street, turned onto Park Street, and came to the intersection of Park and Beech Streets. He glanced down the street to see
[ 4] The officer testified that he observed Brown to have redness in his face, dilated pupils and slightly slurred speech. The officer asked Brown to get out of his car to perform some field sobriety tests. As Brown got out of his car, the officer noticed Brown stabilize himself and smelled an "odor of alcohol." Brown refused to perform the tests, was placed in custody, and put in the cruiser. In denying Brown's motion to suppress, the court concluded that the officer's approach of Brown's vehicle and inquiry of what Brown was drinking was a stop covered by the Fourth Amendment but that the intrusion was justified. The court determined that, although there was no proof that the can was a beer can, the officer had the right to investigate what was in the can for the infraction of drinking while driving a motor vehicle. Brown appealed the denial of his motion to suppress to the Superior Court and subsequently entered a conditional plea of guilty. The Superior Court affirmed the decision of the District Court, and this appeal followed.
[ 5] Brown contends that the court committed clear error in finding that there was a reasonable articulable suspicion for Officer Jamo's intrusion. We disagree. In order to support a brief investigatory stop of a motor vehicle, such as the stop in this case, a police officer must have an articulable suspicion that criminal conduct or a civil violation has occurred, is occurring, or is about to occur, and the officer's suspicion must be "objectively reasonable in the totality of the circumstances." State v. Cusack, 649 A.2d 16, 18 (Me. 1994). We review the trial court's finding that an officer possessed a reasonable and articulable suspicion to support an investigatory stop of an automobile against a clear error standard. State v. Brown, 675 A.2d 504, 505 (Me. 1996). Before Officer Jamo approached Brown's vehicle, he had noticed Brown driving very slow (5 miles per hour). Although in these circumstances, the slow speed alone may be an insufficient basis on which to stop the vehicle, Jamo also observed Brown, while in the car and within seconds of being seen operating he vehicle, drinking from a silver can that looked l
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