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State v. Daniel Burgess
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 117
Docket:	And-00-566
Submitted
on Briefs:	April 24, 2001
Decided:	July 20, 2001

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




STATE OF MAINE v. DANIEL BURGESS


DANA, J.

	[¶1]  Daniel Burgess appeals from the judgment of conviction entered
in the Superior Court (Androscoggin County, Delahanty, J.) following a jury
waived trial for operating a motor vehicle while his license was revoked
based on his status as an habitual offender (Class C) in violation of 29-A
M.R.S.A. § 2557 (Supp. 2000),{1} and for operating while under the influence
(Class D) in violation of 29-A M.R.S.A. § 2411 (1996 & Supp. 2000).{2}  On
appeal, Burgess contends that the court's denial of his motion to suppress
the evidence procured after the stop of his vehicle was in error because the
police officer lacked a reasonable articulable suspicion for making the stop.  
Burgess additionally contends that, even if the motion to suppress was
correctly denied, the court erred in denying his motion for acquittal because
the parking lot driveway in which Burgess was operating his vehicle was not
a "public way," as defined by 17-A M.R.S.A. § 505(2) (1983).  Because we
conclude that the police officer had a reasonable articulable suspicion for
making the stop and because Burgess was operating on a "public way," we
affirm both convictions.
FACTUAL BACKGROUND
	[¶2]  On March 23, 2000, Officer Barry Kelly of the Lewiston Police
Department received a call from his dispatcher informing him of a
complaint that a highly intoxicated male had threatened to take a gun out of
his glove compartment and shoot holes in the vehicle parked behind him if
it was not moved.  The dispatcher advised Officer Kelly of the make, model,
color, and plate number of the individual's vehicle, and that the conduct was
occurring in a specified apartment building parking lot.  When Officer Kelly
arrived at the parking lot, he found neither the individual nor the vehicle in
question.
	[¶3]  Later that day, Officer Kelly contacted the complainant by phone
to  discuss the incident further.  The complainant indicated that he had
witnessed the individual in question driving while intoxicated on several
occasions, it had become very serious, he was concerned that somebody was
going to get killed due to the man's drunk driving, and he was concerned
for the safety of his family.  Officer Kelly testified at the suppression hearing
that after the conversation he "felt as though this was a very important case
to follow-up . . . ."
	[¶4]  On March 25, Officer Kelly returned to the apartment building. 
He indicated that the parking lot was located in the rear of the building, and
a long driveway connected the parking lot with the only entrance and exit to
the road.  Officer Kelly drove into the driveway and observed a vehicle
heading toward him on the driveway that matched the description
previously provided to him.  Officer Kelly proceeded to stop the vehicle,
identify Burgess as the driver and question him.  He testified that he made
the stop to investigate Burgess's version of the events of March 23, that he
saw no evidence of erratic driving or behavior, and that he had received no
information on March 25 to lead him to believe the defendant was
intoxicated.  On making contact, Officer Kelly testified that Burgess's eyes
were glossy and red, and he smelled "very strongly" of alcohol.  The
evidence indicates that Burgess began drinking at his home, elsewhere in
the Lewiston-Auburn area.  He then drove from his home to a bowling alley,
drank some more beer, and drove to the apartment parking lot where he
was stopped by Officer Kelly.  When asked by Officer Kelly if he had driven
from the bowling alley to the parking lot, Burgess, seated in the driver's
seat, replied "I am seated here, aren't I."{3}  After Burgess failed several field
sobriety tests, Officer Kelly placed him under arrest.
	[¶5]  Burgess was indicted on the charges of operating a motor vehicle
while under the influence and while his license was revoked.  He moved to
suppress the evidence gathered as a result of the vehicle stop.  Burgess's
motion to suppress was denied, and following a jury waived trial, the court
denied his motion for acquittal on the habitual offender charge and found
him guilty.{4}  Burgess now appeals.
I. MOTION TO SUPPRESS
	[¶6]  Burgess contends that Officer Kelly lacked a reasonable
articulable suspicion to justify the stop because Officer Kelly did not observe
any unlawful or suspicious behavior.  Moreover, Burgess contends that the
two day old tip that indicated he was always driving intoxicated was
insufficient for the officer to stop him to determine if he was driving
intoxicated on the day of the stop.  Thus, any evidence obtained as a result of
the stop should have been suppressed.
	[¶7]  "The fourth amendment to the United States Constitution and
article I, section 5 of the Maine Constitution protect us from unreasonable
intrusions of police officers and other government agents." State v. Caron,
534 A.2d 978, 979 (Me. 1987).  "An investigatory stop is justified if at the
time of the stop the officer has an articulable suspicion that criminal
conduct has taken place, is occurring, or imminently will occur, and the
officer's assessment of the existence of specific and articulable facts
sufficient to warrant the stop is objectively reasonable in the totality of the
circumstances." State v. Tarvers, 1998 ME 64, ¶ 3, 709 A.2d 726, 727
(internal quotation marks omitted); see Terry v. Ohio, 392 U.S. 1, 21-22
(1968).  Thus, an officer has the authority to make an investigatory stop as a
crime prevention or detection function.{5}
	[¶8]  Reasonable articulable suspicion "is considerably less than proof
of wrongdoing by a preponderance of the evidence," but "[t]he suspicion
needs to be based on more than speculation or an unsubstantiated hunch." 
State v. Eklund, 2000 ME 175, ¶ 6, 760 A.2d 622, 624 (internal quotation
marks omitted).  "Our review of a motion justice's findings of historical facts
is deferential," and we review a challenge to the legal conclusions drawn
from the historical facts de novo.  State v. Connors, 1999 ME 125, ¶ 8, 734
A.2d 195, 198 (internal quotation marks omitted).
	[¶9]  An investigatory stop based on a tip need not be corroborated by
an officer's observation of suspicious conduct for the stop to be
constitutionally reasonable.  Adams v. Williams, 407 U.S. 143, 147 (1972)
("[W]e reject respondent's argument that reasonable cause for a stop and
frisk can only be based on the officer's personal observation, rather than on
information supplied by another person."); State v. Littlefield, 677 A.2d
1055, 1057-58 (Me. 1996) (rejecting "the proposition that innocuous
behavior on the part of a suspect at the time of an investigatory stop is
necessarily fatal to a finding that the stop was constitutionally reasonable"). 
The facts supporting an investigatory search "can be provided by an
informant if the information carries sufficient 'indicia of reliability.'"  State v.
Cushing, 602 A.2d 1169, 1170 (Me. 1992) (quoting Adams, 407 U.S. at
147).  In addition, "whether a tip has gone stale depends upon the nature of
the tip and the nature of the criminal activity alleged."  United States v.
Gonzalez, 190 F.3d 668, 673 (5th Cir. 1999) ("Staleness is to be determined
on the facts of each case.") (internal quotation marks omitted).   Staleness
cannot be "determined by simply a 'mechanical counting of the time
between' the time the tip is received and the time the tip is used."  Id.
(quoting United States v. Webster, 734 F.2d 1048, 1056 (5th Cir. 1984)).
	[¶10]  Officer Kelly received a tip that a male was driving intoxicated
at a specific apartment building parking lot and had threatened to shoot
another vehicle.  The complainant provided the make, model, color, plate
number and features of the vehicle.  Officer Kelly verified the information
with the complainant in a telephone conversation.  The complainant's
statements led Officer Kelly to believe that this was a very important case to
follow up.  Two days later, Officer Kelly returned to the apartment building,
observed a male driving a vehicle that matched the description he was
previously provided, and stopped the vehicle to ask the driver "what his
side of the story was."  Thus, the court did not err in finding that Officer
Kelly's primary motivation for proceeding to the apartment building was to
investigate the alleged criminal activity that had occurred two days earlier as
described by the complainant, and was not to determine whether Burgess
was driving under the influence on that day.
	[¶11]  The specific details provided by the complainant coupled with
the officer's verification of the information sufficiently justified the
investigatory stop in order to follow up on the previously alleged criminal
activity.  See, e.g., Cushing, 602 A.2d at 1170 (finding the totality of the
circumstances, including the information provided by the known informant,
sufficient to justify the officer's investigatory stop of the defendants). 
Therefore, the court's finding was unquestionably correct that two days after
receiving the tip Officer Kelly had a reasonable articulable suspicion that a
crime had occurred.  The stop did not violate the fourth amendment, and
the court did not err in denying Burgess's motion to suppress.
II. MOTION FOR ACQUITTAL
	[¶12]  Burgess also contends that the Superior Court erred in denying
his motion to acquit on the habitual offender charge because the evidence
presented at trial was insufficient to establish, beyond a reasonable doubt,
that the parking lot driveway he was operating his vehicle on was a public
way.
	[¶13]  "When the improper denial of a motion to acquit is alleged, the
question before us is whether there was legally sufficient evidence to
support the guilty verdict."  State v. Pierce, 2001 ME 14, ¶ 24, 770 A.2d
630, 637 (internal quotation marks omitted).  To determine if evidence is
legally sufficient, we consider "whether on the evidence as a whole,
assessed most favorably to the state, no trier of fact could rationally find
proof of guilt beyond a reasonable doubt."  Id. (internal quotation marks
omitted).
	[¶14]  Because the factfinder could conclude from the evidence that
Burgess admitted driving, necessarily on public ways, before arriving at the
apartment house parking lot, we need not decide whether the parking lot
and driveway are themselves public ways.
	The entry is:
Judgment affirmed.


Attorneys for State: Norman R. Croteau, District Attorney Kevin J. Regan, Asst. Dist. Attorney 2 Turner Street Auburn, ME 04210 Attorney for defendant: Verne E. Paradie Jr., Esq. Gosselin, Dubord & Rabasco, P.A. P O Box 1081 Lewiston, ME 04243-1081
FOOTNOTES******************************** {1} . 29-A M.R.S.A. § 2557 provides in relevant part: 1. Crime. A person commits a crime as defined in subsection 2 if that person operates a motor vehicle on a public way, as defined in Title 17-A, section 505, subsection 2, when that person's license to operate a motor vehicle has been revoked under this subchapter or former Title 29, chapter 18-A and that person: A. Has received written notice of the revocation from the Secretary of State; B. Has been orally informed of the revocation by a law enforcement officer; C. Has actual knowledge of the revocation; or D. Is a person to whom written notice was sent in accordance with section 2482 or former Title 29, section 2241, subsection 4. {2} . 29-A M.R.S.A. § 2411 provides in relevant part: 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. {3} . The complete colloquy where the officer described Burgess's admission to having operated in places other than the parking lot is as follows: Q. Prior to asking him to leave the vehicle, did you have any conversations with him regarding how he arrived in that parking lot? A. Basically what I had asked is where he was coming from or if he had driven to that location and his reply to me was, I am seated here, aren't I, something to that effect. Q. That was in response to your question how he had gotten from the bowling alley? A. Correct. {4} . As to the habitual offender offense, Burgess was sentenced to an eighteen month term of imprisonment with all but six months suspended and a two year period of probation. As to the OUI offense, he was sentenced to a ninety day term of imprisonment to run concurrently with count 1, and he was ordered to pay the sum of $1490. {5} . The State contends that the stop can also be justified because the officer was engaged in a community caretaking function. Community caretaking functions, however, are "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Dube, 655 A.2d 338, 340 (Me. 1995) (quoting State v. Pinkham, 565 A.2d 318, 319 (Me. 1989)). Officer Kelly testified that he returned to the apartment building because he thought it "was a very important case to follow-up with" and because Burgess "had threatened, allegedly, to shoot holes into another vehicle." Thus, the officer was investigating the alleged criminal activity provided by the tip and was not performing a community caretaking function. See State v. Bickford, 582 A.2d 250, 251 (Me. 1990) (stating that community caretaking functions cannot be a "pretext concealing an investigatory police motive") (quoting South Dakota v. Opperman, 428 U.S. 364, 368-76 (1975)).