MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision:   2013 ME 66
Docket:     Pen-12-463
Submitted
 On Briefs: May 30, 2013
Decided:    July 11, 2013

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, GORMAN, and JABAR, JJ.


                                 STATE OF MAINE

                                          v.

                                 DUSTIN T. WHITE

LEVY, J.

         [¶1] Dustin T. White appeals from a judgment of conviction for operating a

motor vehicle under the influence of intoxicants (OUI) with one previous OUI

conviction within a ten-year period (Class D), 29-A M.R.S. § 2411(1-A)(B)(1)

(2012), entered in the trial court (Anderson, J.) following a jury-waived trial.

White challenges the court’s (Campbell, J.) denial of his motion to suppress

evidence on Fourth Amendment grounds, as well as the court’s (Anderson, J.)

application of the corpus delicti rule as modified by 29-A M.R.S. § 2431(4) (2012).

We affirm the judgment.

                                 I. BACKGROUND

         [¶2] Around 11:55 p.m. on August 5, 2011, a person phoned the Bangor

Police Department to report seeing a green, drop-top jeep arrive at Carolina’s bar,

and that about an hour later, a man stumbled into the same jeep and drove away at
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a high rate of speed.1 Police dispatch ran the license plate number they received in

the report, which revealed that White was the registered owner of a vehicle with

that license plate number, and that the vehicle registered to White was similar to

the one described in the report. Dispatch contacted Officer Steve Pelletier at

12:01 a.m., and Officer Pelletier proceeded to the address associated with White’s

license plate number and vehicle registration. Officer Pelletier arrived at White’s

apartment complex about five minutes later and located a green jeep with no top

and the license plate number from the report. Officer Pelletier parked his vehicle

in the parking lot near White’s apartment building and walked to the steps in front

of White’s porch; at no point did Officer Pelletier use his blue lights.

        [¶3] Seeing a light on inside White’s apartment, Officer Pelletier stepped

onto the porch of the apartment. Before Officer Pelletier could knock or ring a

doorbell, White opened the door. Officer Pelletier made no physical movements

toward White, greeted him, and asked where he had been.                                    White replied,

“downtown.” White stepped out onto the porch, momentarily pausing on one foot



    1
      We consider the facts in the light most favorable to the State. See State v. Holmes, 2004 ME 155,
¶ 10, 864 A.2d 166. The evidence presented in the suppression record is largely the same as that
presented in the trial record, with two significant exceptions. First, the suppression court received
evidence and found that a man was seen stumbling toward the jeep and driving away, whereas the trial
court did not receive evidence that a man was seen stumbling toward the jeep and made no finding to that
effect. Second, the trial court did not receive evidence related to the license plate number given by the
identified caller because the caller was unavailable to testify at trial, and the parties stipulated only to the
fact that the caller reported seeing a green, drop-top jeep leave Carolina’s at a high rate of speed, after
seeing the same green jeep arrive about an hour earlier.
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to maintain his balance. As White stepped onto the porch, Officer Pelletier stepped

off the porch to maintain his distance, so that the two were about ten feet apart.

      [¶4] Officer Pelletier began taping their conversation and told White that he

had received a report that White had driven while intoxicated. White responded

that that was unlikely because he “didn’t exceed the speed limit.” White admitted

to consuming at least four alcoholic drinks at two bars that night, including at

Carolina’s. White stated that he had been home for fifteen minutes and had not

consumed any alcohol since returning home. Officer Pelletier noticed that White’s

speech was slurred, and he asked White to rate his level of impairment “on a scale

of one to ten, one being totally sober and ten being falling-down drunk.” White

rated himself a “two.”

      [¶5] Officer Pelletier asked White to perform field sobriety tests, and White

initially resisted, to which Officer Pelletier responded, “It doesn’t matter.” Officer

Pelletier explained in his testimony that at that point, he believed he had “enough

to take [White] in if he didn’t want to do any tests,” and that he would have done

so if White had refused to take a sobriety test. However, White agreed to submit to

a horizontal gaze nystagmus (HGN) test. Officer Pelletier stood over White and

administered an HGN test while White sat on the porch steps. Officer Pelletier

detected five out of six indicators of impairment, suggesting that White was

impaired by alcohol. While conducting the HGN test, Officer Pelletier further
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noticed the smell of alcohol coming from the direction of White’s face and

observed that White’s eyes were bloodshot.        Following the HGN test, White

refused to perform any additional field sobriety tests. At some point, Officer

Pelletier felt the engine hood of White’s jeep, and it was warm. In its entirety, the

interaction between Officer Pelletier and White lasted fifteen minutes.

      [¶6] Officer Pelletier arrested White for operating under the influence and

took him to the Bangor Police Department. At the police station, an intoxylizer

test revealed that White had a 0.20 blood-alcohol level. White was charged with

criminal OUI (Class D), 29-A M.R.S. § 2411(1-A)(B)(1), based on his operation of

a motor vehicle while under the influence of intoxicants or with a blood-alcohol

level greater than 0.08, and his having a previous OUI conviction within the last

ten years.

      [¶7] White moved to suppress the evidence of his HGN test and the events

that followed, alleging that he was, in effect, under arrest when Officer Pelletier

administered the HGN test, and that the arrest was unlawful.              The court

(Campbell, J.) denied the motion after a hearing. The court found that at the point

in time that Officer Pelletier asked White to submit to an HGN test, White was

subject to an investigative detention, but was not under arrest, and that Officer

Pelletier had a reasonable and articulable suspicion to support his decision to

subject White to sobriety testing.
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       [¶8] After a jury-waived trial, the court (Anderson, J.) found beyond a

reasonable doubt that White drove a motor vehicle that evening. It based this

finding on White’s statement to Officer Pelletier that he had not been speeding that

night, and Officer Pelletier’s testimony that the hood of White’s jeep was warm to

the touch when Officer Pelletier located it at White’s apartment. The court also

concluded beyond a reasonable doubt that White was under the influence at the

time he drove. White was convicted of operating under the influence and received

a sentence of seven days in jail, a $700 fine, and a three-year suspension of his

right to operate.

                                II. DISCUSSION

       [¶9] White contends that the court erred in (A) denying his motion to

suppress evidence obtained during what he contends was an unlawful arrest, and

(B) interpreting and applying the corpus delicti rule. We consider each contention

in turn.

A.     Motion to Suppress

       [¶10] “We review a denial of a motion to suppress for errors of law or

clearly erroneous findings of fact.”       State v. Langlois, 2005 ME 3, ¶ 6,

863 A.2d 913 (quotation marks omitted).

       [¶11] The State does not dispute the trial court’s determination that White

was subject to a “seizure” for purposes of the Fourth Amendment at the point in
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time that Officer Pelletier asked White to submit to an HGN test. “A seizure of the

person occurs when the officer, by means of physical force or show of authority,

has in some way restrained the liberty of a citizen such that he is not free to walk

away.” State v. Cilley, 1998 ME 34, ¶ 7, 707 A.2d 79 (quotation marks omitted).

Consistent with the suppression court’s findings, a person in White’s position

when Officer Pelletier administered the HGN test would not have felt free to leave.

Accordingly, White was subject to a “seizure” for purposes of the Fourth

Amendment. See id.

      [¶12] The question presented by this appeal is not whether White was

seized, but whether his seizure was reasonable.      See U.S. Const. amend. IV;

Me. Const. art. I, § 5. A seizure is reasonable if made pursuant to an investigative

detention based on reasonable suspicion of criminal activity, or if made pursuant to

an arrest based on the higher standard of probable cause that a crime has been

committed. See State v. Flint, 2011 ME 20, ¶ 9, 12 A.3d 54; State v. Donatelli,

2010 ME 43, ¶ 11, 995 A.2d 238; State v. Forsyth, 2002 ME 75, ¶ 10, 795 A.2d

66.   White does not contend that Officer Pelletier did not have reasonable

suspicion to subject him to an investigative detention. Rather, White contends that

he was subject to an arrest without probable cause when Officer Pelletier asked

him to submit to an HGN test.
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      [¶13] “[T]here is no bright line that distinguishes an investigative detention

from an arrest.” Donatelli, 2010 ME 43, ¶ 12, 995 A.2d 238. For a detention to

qualify as merely investigative, it must be “limited in scope and executed through

the least restrictive means.”      Id. (quotation marks omitted).         During an

investigative detention, an officer may take action “reasonably related in scope to

the circumstances which justified” the detention, but such a detention may rise to

the level of a de facto arrest when an officer takes actions during the detention that

“exceed what is necessary to dispel the suspicion” that led to the detention. Id.

¶ 12 (quotation marks omitted).       In evaluating whether police actions have

exceeded what is necessary, we weigh “the gravity of the public concerns served

by the seizure, the degree to which the seizure advances the public interest, and the

severity of the interference with individual liberty.” Id. ¶ 13 (quotation marks

omitted).

      [¶14] The State has an “undeniably strong interest in protecting the public

from the threat of drunk drivers.” State v. Kent, 2011 ME 42, ¶ 11, 15 A.3d 1286

(quotation marks omitted). When Officer Pelletier asked White to submit to an

HGN test, his seizure advanced this interest because Officer Pelletier had a

reasonable suspicion that White had driven while intoxicated. Additionally, the

intrusion on White’s liberty interests was minimal: Officer Pelletier arrived at

White’s apartment without using his blue lights, walked to White’s porch steps,
8

maintained his distance throughout his conversation with White, and did not

physically restrain White in any way. Officer Pelletier’s entire interaction with

White lasted only fifteen minutes. Furthermore, an HGN test is a common and

accepted form of investigating whether an individual may be impaired. For these

reasons, Officer Pelletier’s actions were reasonably related in scope to the

circumstances justifying the investigation of drunk driving, were executed through

the least restrictive means, and therefore did not amount to a de facto arrest. See

Donatelli, 2010 ME 43, ¶¶ 12-13, 995 A.2d 238. Thus, Officer Pelletier did not

need probable cause to detain White at the time he administered the HGN test. See

Flint, 2011 ME 20, ¶ 9, 12 A.3d 54.

      [¶15]    Moreover, even if before White’s formal arrest his seizure had

amounted to a de facto arrest, Officer Pelletier would have had the requisite

probable cause. The evidence before the suppression court showed that Officer

Pelletier had a report from police dispatch, obtained from an identified caller, that a

man stumbled into a green, drop-top jeep outside of a bar and drove away; the

caller identified the jeep by its license plate number; police investigation revealed

that the license plate number was registered to White for a vehicle with similar

characteristics; and minutes after receiving the report, Officer Pelletier found a

green jeep with the license plate number reported by the caller and its drop-top

down parked outside White’s apartment. Further, Officer Pelletier observed White
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have difficulty maintaining his balance; heard White slur his words; and heard

White admit that he had had four alcoholic drinks that night, had not been drinking

in the fifteen minutes he had been home, and was a “two” on a one-to-ten scale of

impairment. These facts established probable cause that White drove a motor

vehicle while intoxicated.

       [¶16]     Because White was not subject to an unlawful arrest, the

requirements of the Fourth Amendment were honored, and the court did not err in

denying White’s pre-trial motion to suppress evidence obtained during and after

the HGN test. See Langlois, 2005 ME 3, ¶ 6, 863 A.2d 913.

B.    Corpus Delicti

      [¶17] White next argues that the court violated the corpus delicti rule by

treating his statement to Officer Pelletier as sufficient to prove that he operated a

motor vehicle.

      [¶18] “Corpus delicti” is Latin for “body of the crime.” Black’s Law

Dictionary 395 (9th ed. 2009). The corpus delicti rule is a rule of common law that

serves to “prevent a conviction when no crime has in fact occurred.” State v. Reed,

676 A.2d 479, 481 (Me. 1996).            It requires that “before a defendant’s

self-inculpatory out-of-court statement may be admitted in evidence and

considered by the fact-finder,” the State must show, by a low standard of proof

similar to the probable cause standard, “that the crime charged has been committed
10

by some person.” State v. Fundalewicz, 2012 ME 107, ¶¶ 8-9, 49 A.3d 1277

(quotation marks omitted).      However, the corpus delicti rule is modified by

29-A M.R.S. § 2431(4) for proceedings involving OUI charges pursuant to

29-A M.R.S. § 2411 (2012).          A defendant’s voluntary statement “that the

defendant was the operator of a motor vehicle . . . may constitute sufficient proof

by itself, without further proof of corpus delicti, that [a] motor vehicle was

operated by the defendant.”      29-A M.R.S. § 2431(4). We review the court’s

factual findings for clear error and review de novo the determination of whether

the evidence was “sufficient to establish a substantial belief” that a crime occurred.

State v. Michaud, 1998 ME 251, ¶ 7, 724 A.2d 1222.

      [¶19] Here, White told Officer Pelletier that he “didn’t exceed the speed

limit” that night. Although White argues that his statement can be interpreted to

mean that he was not speeding because he was not driving, the court reasonably

inferred that the statement was an admission of driving. White’s statement was

therefore sufficient to establish that he operated a vehicle without further proof of

corpus delicti. See 29-A M.R.S. § 2431(4).

      The entry is:

                      Judgment affirmed.

_____________________________________
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On the briefs:

       Kirk D. Bloomer, Esq., Bloomer Law Office, P.A., Bangor, for
       appellant Dustin White

       R. Christopher Almy, District Attorney, and Tracy Collins
       Lacher, Asst. Dist. Atty., Prosecutorial District V, Bangor, for
       appellee State of Maine



Penobscot County Unified Criminal Docket docket number CR-2011-03051
FOR CLERK REFERENCE ONLY
