Opinion
CR-20-20206
07-19-2021
STATE OF MAINE, Plaintiff, v. BRENT CROTEAU, Defendant.
ORDER ON MOTION TO SUPPRESS
Defendant Brent Croteau is charged in a single-count complaint with Criminal OUI, which is alleged to have occurred in Carmel on or about February 14, 2020. A hearing on the Defendant's Motion to Suppress was held on July 16, 2021. At the hearing, the State relied upon testimony from Trooper Cody Haverly-Johndro and Trooper David Olmstead of the Maine State Police, as well as an audio recording taken from the "microphone pack" worn by Trooper Olmstead during his interactions with Mr. Croteau on the evening of the incident (entered into evidence as State's Exhibit 1) and a "Sample Collection Information Form" signed by Mr. Croteau prior to the collection of a sample of his blood (State's Exhibit 2). Mr. Croteau introduced evidence in the form of a video generated by the dashboard camera in Trooper Olmstead's police vehicle (entered into evidence as Defendant's Exhibit 1).
Mr. Croteau's motion asks the court to consider whether statements made by Mr. Croteau at the scene of the accident that gave rise to this proceeding were voluntary, whether statements made by Mr. Croteau after being transported by ambulance to a hospital were voluntary, whether Mr. Croteau's purported waiver of his Miranda rights was valid, and whether Mr. Croteau provided a valid consent to a blood draw that was administered while he was at the hospital.
The court has now carefully considered the testimony and other evidence with which it was provided, and has reviewed the case law and other authority cited by counsel in closing arguments. As set forth more fully below, Mr. Croteau's Motion to Suppress is GRANTED, in part, and DENIED, in part. More precisely, all evidence relating to the blood drawn from Mr. Croteau and all statements made by Mr. Croteau at the scene of the accident after Trooper Olmstead's arrival are suppressed. Statements made by Mr. Croteau prior to Trooper Olmstead's arrival at the scene of the accident, and all statements made by Mr. Croteau at the hospital, shall be admissible at trial.
FINDINGS OF FACT
I. The scene of the accident
The factual background is not disputed. On the evening of February 14, 2020, Mr. Croteau was driving southbound on Interstate 95, and, in the vicinity of Carmel, Maine (near mile marker 173), went off the highway. His vehicle came to rest in a ditch near the tree line, although its tail lights remained visible from the highway. At some point thereafter. Trooper Haverly-Johndro drove by and, although off-duty at the time, stopped his own vehicle to see if he could assist with the situation.
Trooper Haverly-Johndro located Mr. Croteau seated on the embankment between the roadway and the tree line. Trooper Haverly-Johndro was not in uniform at the time, and identified himself to Mr. Croteau as an off-duty state trooper "shortly after making contact with him." He asked Mr. Croteau whether he was injured and whether there had been other passengers in the vehicle. In response to each question, Mr, Croteau replied, "I don't know." According to Trooper Haverly-Johndro, Mr. Croteau "appeared fine" at this point, although he was "staring off into the trees" and "speaking slowly."
Trooper Haverly-Johndro next asked Mr. Croteau what had happened, to which Mr. Croteau replied by asking "do you want me to be honest?" Trooper Haverly-Johndro told Mr. Croteau that he did indeed want him to be honest. Mr. Croteau stated that he had taken "a lot of [his] depression meds," and "wanted to kill himself."
Trooper Haverly-Johndro asked Mr. Croteau if he had any weapons on his person, and Mr. Croteau informed Trooper Haverly-Johndro that he had a knife. Trooper Haverly-Johndro advised Mr. Croteau not to reach for the knife, and removed the knife himself. Throughout this exchange, Mr. Croteau answered Trooper Haverly-Johndro's questions appropriately and followed his instructions carefully. Trooper Haverly-Johndro contacted the B.R.C.C. dispatch unit and requested emergency services.
Trooper Haverly-Johndro acknowledged that he was carrying his service weapon when he encountered Mr. Croteau. He further acknowledged that Mr. Croteau remained seated throughout their interaction until the ambulance arrived, at which point he assisted Mr. Croteau in getting to his feet and climbing into the ambulance.
Shortly after Mr. Croteau was assisted into the ambulance, Trooper Olmstead arrived on the scene. Trooper Olmstead was on duty, in uniform, on the evening of February 14. He arrived in a marked State Police cruiser, approximately 20 minutes after receiving the instruction from the M.R.C.C. dispatch unit. Having been advised that the situation involved a vehicle "off the road/' Trooper Olmstead initially observed that "there was no indication the vehicle had attempted to slow down," with "no tire marks, straight lines through the snow" and "the car was well down into the embankment."
At this point a third trooper (and second on-duty trooper) had also arrived, and had apparently overheard Mr. Croteau's discussions with emergency medical personnel, The third trooper indicated that a pill bottle "had been found" in Mr. Croteau's car, consistent with Mr. Croteau's report that he had ingested a large amount of his prescribed medication. Trooper Olmstead entered the ambulance briefly, and was told by the E.M.T. medics that Mr. Croteau had told them "he had ingested large amounts of his meds, set his cruise control at 75, and went off the road intentionally."
The E.M.T.s told Trooper Olmstead that they needed to leave for the hospital, and he exited the ambulance. Trooper Olmstead agreed that Mr, Croteau's "medical needs outweighed the need to determine impairment." Mr. Croteau was then transported to Northern Light Hospital, in Bangor.
II. The hospital
Mr. Croteau was transported to Northern Light Hospital in Bangor. Trooper Olmstead followed, although not immediately. Once he arrived at the hospital, Trooper Olmstead activated a microphone pack, which recorded his interactions with Mr. Croteau, After reintroducing himself to Mr. Croteau and advising him that he (Trooper Olmstead) was a Maine State Trooper investigating the accident, Trooper Olmstead advised Mr, Croteau of his Miranda rights.
Trooper Olmstead did this methodically, at a measured pace, and paused after each instruction to ask Mr. Croteau if he understood the instruction he had just received. On at least two occasions, Trooper Olmstead asked Mr. Croteau if his unclear response, an audible grunt, was meant as a "yes." On each occasion, Mr. Croteau confirmed that his intended answer was indeed "yes" (a significant point-this court often finds itself reminding witnesses that proceedings are being recorded and that their nods or expressions of "uh huh" or "unh uh" are not clear on a recorded transcript).
Following the Miranda inquiry, Mr. Croteau explained that, while driving first to and then back from Bangor, he had swallowed "all the pills I had," a total of "60 pills." Mr, Croteau further explained that he had swallowed 30 pills of one of his prescribed medications and 30 pills of a second prescribed medication. Although the court did not recognize the names of the medications, the court was able to determine that Mr. Croteau identified each both by its pharmaceutical name and its name-brand, noting the difference between each.
Mr. Croteau stated that he had consumed the pills at some point between 7:00 and 9:00 p.m. on the evening in question. Mr. Croteau also identified the 1-95 exit in the Bangor area on which he left the interstate and turned around to drive south toward his home in South Berwick. The court notes that Mr, Croteau sounded coherent on the audio retrieved from Trooper Olmstead's microphone pack.
Throughout this interaction, Mr. Croteau was receiving attention from several medical personnel, each of whom was asking him questions intended to determine his immediate physical health. The medical professionals were assessing his vital signs in preparation for an echo cardiogram. Mr. Croteau was answering questions from several directions, most of which were standard questions involving his recent medical history, as well as his possible history of heart-related attention.
Trooper Olmstead advised Mr. Croteau that "I have everything I need for now," explaining that "you've got a lot going on with the hospital here." Trooper Olmstead said that he would "give [Mr. Croteau] a call in a couple of days," and that he "hope[d] you feel better bud."
Trooper Olmstead then left the immediate area, but turned back around and asked Mr. Croteau if he would be willing to submit to a blood draw. Trooper Olmstead explained that the blood was to determine whether he had intoxicants in his system, and would potentially be used as evidence of impairment in a subsequent trial. Mr. Croteau consented audibly to the blood draw, and signed the Sample Collection Form entered into evidence as State's Exhibit 2. At almost this precise moment, an emergency room medic advised Mr, Croteau that she was "going to steal a little more of your blood."
Trooper Olmstead did not provide Mr. Croteau with an "informed consent" form, or any other form typically used to explain an individual's duty to submit to chemical testing in a suspected OUI. situation. Nor did Trooper Olmstead explain to Mr, Croteau his statutory obligations as an operator on a public road in the state of Maine, including his duty to submit to chemical testing in order to determine impairment. Most directly, Trooper Olmstead never indicated to Mr. Croteau that he had the discretion to refuse a blood test, even in the face of potentially enhanced penalties upon refusal and subsequent conviction.
Mr. Croteau signed the Sample Collection form, and the blood draw was performed by the attending nurse.
Trooper Olmstead acknowledged that he doesn't use the "informed consent" forms in most of his interactions that involved suspected OUIs. He further acknowledged that it was "most likely" that he did not read the Sample Collection form to Mr. Croteau in advance, Trooper Olmstead Trooper Olmstead also acknowledged that he doesn't typically use Miranda waiver forms.
APPLICABLE LAW
Mr. Croteau now argues that evidence relating to the blood drawn in the course of this investigation should be suppressed, and that any statement made after Trooper Olmstead arrived at the scene of the accident should also be suppressed. In each instance, Mr. Croteau argues that the he did not voluntarily provide the evidence obtained by the State of Maine.
I. The blood draw
"There is no question that strictures of the Fourth Amendment apply to searches in the form of blood tests." State v. LeMeunier-Fitzgerald, 2018 ME 85, ¶ 9. As the Law Court observed, it can be a challenge to "find an appropriate balance between a defendant's right to be free from 'unreasonable searches' of their blood for its [intoxicant] content and the State's interest in addressing the public safety crisis resulting from impaired drivers causing death and destruction on America's road," Id. at ¶ 10. The Law Court explained that "a defendant's consent that has been 'pried loose by...a claim of authority is merely acquiescence." Id., (quoting United States v. Vazquez, 724 F.3d 15, 23 (1st Cir. 2013).
It is a "bedrock understanding that the withdrawal of a blood sample from the veins or arteries of a human being for blood-alcohol testing is a 'search' falling within the protection of the Fourth Amendment." Id. at ¶ 11; State v. Boyd, 2017 ME 36, ¶ 8. Generally speaking, the procurement of a "legitimate search warrant" will "ensure the reasonableness of a search. LeMeunier-Fitzgerald, 2018 ME 85, ¶ 11. There are exceptions to the warrant requirement, one of which occurs when a defendant has consented to the search by agreeing to provide a blood sample.
The Law Court's opinion in the LeMeunier-Fitzgerald case included an extensive discussion of the difference between so-called "implied consent" statutes/ which are in effect in various other states, and a "duty to submit" statute, which has been adopted in Maine (replacing the "implied consent" statute that had previously applied). There is no longer a presumption that a driver has consent to a chemical test of his or her blood or urine by virtue of having operated a vehicle on a public road. Instead, if there exists "probable cause to believe a person has operated a motor vehicle while under the influence of intoxicants, that person shall submit to and complete a test to determine an alcohol level and the presence of a drug or drug metabolite by analysis of blood, breath or urine." LeMeunier-Fitzgerald, 2018 ME 85, ¶ 17 (quoting Title 29-A M.R.S. § 2521(1) (2017) (emphasis in original)).
The significance of this distinction is that Mr. Croteau is not presumed to have consented to a chemical test by operation of his vehicle on the evening in question. In addition, although the Maine statute imposes a "duty" to submit, it does not "create a statutory mandate to submit to testing. LeMeunier-Fitzgerald, 2018 ME 85, ¶ 19. Instead, the statute provides certain consequences in those instances in which a driver chooses not to submit, which include elevated minimum fines, minimum mandatory jail sentences, and admissibility of the driver's refusal into evidence at a subsequent trial. "In order for the consequences of refusal to apply, the driver must have been provided with a direct and clear explanation of those consequences." Id.
A search is reasonable even in the absence of a warrant if a person voluntarily consents to the search. Id. at ¶ 21; State v. Cress, 576 A.2d 1366, 1367 (Me. 1990). When a defendant challenges the admissibility of evidence obtained without a warrant, it is the State's burden to prove, by a preponderance of the evidence, "that an objective manifestation of consent was given by word or gesture." Id. (quoting State v. Bailey, 2012 ME 55, ¶ 16. The question of voluntariness is determined "from the totality of all the circumstances." Id. at ¶ 22. A search becomes unreasonable if a person's consent was obtained through implicit or explicit coercion, or duress, or through "deceit, trickery, or misrepresentation." Id.
In this case, the court concludes that Mr. Croteau's consent to having his blood drawn was obtained through misrepresentation. The court believes this to have been inadvertent, and does not find there to have been any bad faith involved, However, it is apparent that Mr. Croteau was, at best, distracted by the swirl of medical personnel and the activity of which he was the center. This included a nurse who instructed him that she was going to be drawing his blood for what was at least the second time that evening (she used the phrase "steal a little more of your blood").
In addition, Trooper Olmstead had advised Mr. Croteau that he "had everything I need," that he was going to leave so that Mr. Croteau could direct his attention to the questions he was being asked by the nurses that were present, and that the interview was ending (adding that he would call Mr. Croteau in a few days and that he hoped Mr. Croteau would feel better). Trooper Olmstead's request to draw blood was delivered in passing, almost as an "oh by the way"-type afterthought. Although Trooper Olmstead explained that the blood would potentially be used as evidence at trial, to determine whether Mr. Croteau was impaired, he did not advise Mr. Croteau that there existed a right to refuse to provide the sample (which would be accompanied by more severe penalties if conviction resulted).
There need not be trickery, or bad faith, for circumstances to be fundamentally unfair in their totality* Trooper Olmstead, having informed Mr. Croteau that he had all the information he needed and was leaving, then asked if Mr. Croteau would provide a blood sample. Mr, Croteau, having been told the interview was over, in the midst of preparing for an E.K, G.ƒ consented without being provided any context in which to consider or even really to reflect on the request. Mr. Croteau did not know that he had the right not to submit to the blood draw. In this instance, the court finds that Mr. Croteau consented to having his blood drawn out of "mere acquiescence" to the trooper's authority. The court therefore grants Mr. Croteau's request to have all evidence relating to the blood draw suppressed.
II. Mr. Croteau's statements
Mr. Croteau has also asked to have all of his statements suppressed, including those made at the scene of the accident as well as those made at the hospital following the explanation by Trooper Olmstead of Mr, Croteau's Miranda rights. The court grants this request with regard to statements made by Mr. Croteau after Trooper Olmstead's arrival at the scene of the accident and before he was transported to the hospital. The court denies this request with regard to statements made by Mr. Croteau to Trooper Haverly-Johndro at the scene of the accident, and denies this request with regard to statements made by Mr. Croteau after receiving Miranda warnings.
To assess the voluntariness of Mr. Croteau's statements at different points in the evening in question,, the court must again consider the totality of the circumstances, including such "internal and external factors" as the details and duration of the interviews, the locations at which Mr. Croteau was questioned, whether Mr. Croteau was questioned in a custodial setting, the recitation of Miranda warnings, the number of officers involved, "police trickery, threats, promises or inducements," and Mr. Croteau's age, physical and mental health, emotional stability, and conduct. State v. Sawyer, 2001 ME 88, ¶9, 772 A.2d 1173, 1176.
The court found both Trooper Haverly-Johndro and Trooper Olmstead to be fully credible in their testimony.
The court finds that the State has not established, by a preponderance of the evidence, that Mr. Croteau consented to having his blood drawn. The court also finds that the State has not established, beyond a reasonable doubt, that statements made by Mr. Croteau after Trooper Olmstead arrived at the scene of the accident were voluntary. Evidence relating to that evidence shall not be used at trial.
The court finds, beyond a reasonable doubt, mat Mr, Croteau's statements prior to Trooper Olmstead's arrival at the scene of the accident were made voluntarily. Mr. Croteau disputes this only with regard to statements made after Trooper Haverly-Johndro asked about weapons on his person and engaged him in a dialogue that included removal of the knife Mr. Croteau was carrying. It is not clear that Mr. Croteau actually made any potentially incriminating statements in this interval. However, it is clear that he understood the circumstances, which included in his presence an off-duty state trooper to whom he had handed a knife. It is also clear that Mr. Croteau understood, and followed carefully, the guidance he was given by Trooper Haverly` Johndro.
Trooper Haverly-Johndro's questions were appropriate under the circumstances: a vehicle well off the road with its driver seated in an embankment. The questions were not investigative, and were intended to elicit basic information as to what had led to this disturbing situation, Mr, Croteau's answers, hesitant at first, became noticeably clearer and certain as the discussion proceeded. In each instance, they were properly responsive to the question he was asked.
The court finds that statements made by Mr. Croteau after Trooper Olmstead's arrival and prior to his recitation of the Miranda warnings were made voluntarily. Trooper Olmstead delivered the Miranda warnings in a careful, methodical manner, asking after each statement whether Mr. Croteau understood the particular right being explained and asking Mr. Croteau to confirm that his unclear responses were indeed affirmative. Based upon the court's review of the audio of the interview, the court does not find that Trooper Olmstead was trying to induce an affirmative response, and was instead trying to make clear Mr. Croteau's intended reply.
Once again, the answers given by Mr. Croteau were properly responsive to the questions he was asked by Trooper Olmstead at the hospital. This included a careful, precise explanation of detailed and fairly complicated information concerning the number and types of medications he had consumed (two different medications, each with a lengthy chemical name and each with a separate "brand" name, and each in quantities of 30 pills). While the interview was progressing, Mr. Croteau was able to focus on Trooper Olmstead's questions. Trooper Olmstead ended the interview when it became apparent that the medical personnel needed Mr. Croteau's undivided attention.
Based upon the foregoing, Mr. Croteau's request to have statements made to Trooper Haverly-Johndro at the scene of the accident suppressed is denied. Similarly, Mr. Croteau's request to have statements made to Trooper Olmstead at the hospital, after receiving Miranda warnings, is denied.
The court is satisfied beyond a reasonable doubt that Mr. Croteau's statements to Trooper Haverly-Johndro, as well as his statements to Trooper Olmstead after having been advised of his Miranda rights, were the choice of a rational mind. Under the circumstances existing during those intervals, the court finds admission into evidence of Mr. Croteau's statements to be fundamentally fair.
Mr. Croteau's request to have statements made to Trooper Olmstead at the scene of the accident, before being transported to the hospital and before receiving Miranda warnings, is granted. The court finds the totality of the circumstances present during that interval to have rendered his statements involuntary.
When Trooper Olmstead arrived at the scene of the accident, Mr. Croteau had already been placed in an ambulance. Trooper Olmstead was the third state trooper to arrive at the scene (there was ultimately a fourth trooper dispatched to the scene, although it is not clear that Mr. Croteau interacted with him or was even aware of his presence.) In this context, it is clear that Mr. Croteau could not remove himself from the interview, and it is unreasonable to conclude that he understood he had the right not to answer questions.
Trooper Haverly-Johndro had already collected the information necessary to determine what had happened and to assess the background and the circumstances of the accident. Trooper Olmstead's questions were no longer directed toward assessment of the scene, and were instead investigatory. With three state troopers present two of them in uniform and at least two service vehicles on site with their lights activated, Trooper Olmstead's questioning of Mr. Croteau at the scene of the accident, prior to the explanation of Mr. Croteau's Miranda rights, had all the hallmarks of a custodial interrogation, even if Mr, Croteau was not formally in custody.
It is not reasonable to conclude that Mr. Croteau understood that he had the right not to answer questions. Seated in the back of an ambulance, he was clearly unable to leave the area, or even to remove himself from the presence of the state troopers. Based upon this, the court grants Mr, Croteau's request to suppress the statements he made to Trooper Olmstead at the scene of the accident.