State v. Clukey

1

STATE OF MAINE, Plaintiff v. JENNIFER CLUKEY, Defendant

No. NEWCD-CR-20-20384

Superior Court of Maine, Penobscot

January 3, 2023

ORDER ON DEFENDANT'S MOTION TO SUPPRESS

Hon Jennifer Nofsinger Judge

This matter comes before the Court on the Defendant's Motion to Suppress. The Court held an evidentiary hearing on December 16, 2022, at which the Defendant appeared with counsel, Seth Harrow, Esq. The State was represented by ADA Chris Smith, Esq. Officer Benjamin Kolko testified, and the Court received WatchGuard footage of the traffic stop in evidence.

The Defendant has been charged with Operating Under the Influence, 29-A M.R.S. §2411(1-A)(B)(1). She contends that reasonable articulable suspicion did not exist for the traffic stop that led to her arrest, nor did probable cause exist for her arrest. On these issues, the Court finds as follows:

Facts:

I. Traffic Stop

Officer Benjamin Kolko was on duty with the Dexter Police Department ("DPD") on August 20, 2020, at approximately 10 p.m. He had been advised by his superior, Sgt. Morin, that a vehicle was observed with its lights on at 33 Water St. in Dexter. This location was of concern to the DPD, as there had been a large amount of traffic at the residence, suggestive of drug activity.

Having received the tip from Sgt. Morin, Officer Kolko was sitting in his cruiser in a location where he was able to observe the intersection of Water and Mill Streets. He saw headlights pass through the intersection, without stopping. As he knew that there was a stop sign at the intersection, he concluded that the operator of the vehicle failed to stop as directed. Officer Kolko left his location, visually identified the vehicle that had failed to stop on Water Street, and concluded the vehicle passed through a second intersection without stopping as directed. He then turned on his blue lights.

Defendant Clukey was operating the vehicle and promptly pulled into the driveway of a residence. Of note, Officer Kolko was familiar with Defendant Clukey, having had interactions with her in the past. He was aware that she had a child protective case open with DHHS, that she was not allowed to return to the residence where her children were living, and that there were concerns about her alleged drug use. Officer Kolko had received this information from a colleague of his at the DPD. He did not recall which colleague shared this information and expressly denied receiving the information from Officer Dean who happened to be Defendant Clukey's father-in-law at the time of Defendant Clukey's arrest. Of particular concern to the Court is the fact that whoever was discussing the DHHS case with the members of the DPD went beyond discussing information that the DPD might arguably need to know (such as the fact that Defendant Clukey was prohibited from being at a certain residence) and shared the results of Defendant Clukey's recent drug tests with members of the DPD, including Officer Kolko.

The residence at which Defendant Clukey stopped on August 20 2020, happened to be the residence from which Officer Kolko believed Defendant Clukey was barred. When Officer Kolko approached Defendant Clukey, he explained that he stopped her because she "blew through" a couple of stop signs. He asked Defendant Clukey for her paperwork, which she was able to produce without difficulty. While obtaining the paperwork, Defendant Clukey commented that the police had been at Dexter Variety earlier that day, "checking her out," and that the stop felt like harassment.

At that point, Officer Kolko explained that he knew that Defendant Clukey had recently failed a drug test and that she had just been at "Scott's," which was a house of concern. In response, Defendant Clukey repeatedly asked for a urine test so that she could prove she was clean. During this entire exchange, Defendant Clukey's speech was clear, and she was not slurring. She was also speaking sensibly and appeared to understand everything Officer Kolko was saying. Officer Kolko smelled no alcohol, and although he concluded her speech was "fast," the Court has reviewed the video of the traffic stop several times and finds nothing abnormal about Defendant Clukey's speech.

Based only on his perception that Defendant Clukey was speaking "fast," his knowledge that she had been at 33 Water St., his knowledge that she was not allowed at the house that she had pulled into, and his observation that her eyes were "glassy," Officer Kolko asked Defendant Clukey to step out of the vehicle to perform field sobriety tests. Notably, the area in which Defendant Clukey had parked was tight and full of vegetation. She exited her vehicle without incident, navigated the area smoothly, and did not stumble or move in a compromised manner.

II. Field Sobriety Tests and Arrest

The first field sobriety test (FST) that Officer Kolko conducted was the horizontal gaze nystagmus (HGN) test. He found no clues of impairment after administering this test.

Next, Officer Kolko administered the "walk and turn" test. He was looking for up to eight clues of impairment with this test. When Officer Kolko explained the test to Defendant Clukey, he told her to take "nine heel toe steps out, make a turn, and then take nine heel toe steps back." He demonstrated the steps, told her to make a "series of small turns with your outside foot in a semicircle," and then walk back until she reached nine steps. He also told her that once she started the test, she should "continue it until you feel that you have finished."

Officer Kolko found three clues of impairment on this test. First, he concluded that Defendant Clukey did not complete her turn by using a series of small steps. Second, he found that she did not have her heel directly on her toe on several of the steps. Third, he found that on the way back, Defendant Clukey completed ten steps instead of nine.

The Court has reviewed the video of this test several times. First, although Defendant Clukey completed a swivel turn in one motion instead of using several small steps, she did so without losing her balance and turned in a fluid, smooth movement. Second, if her heel was not directly in front of her toes on some of the steps, it was not far from it. Her knees appeared to be directly in front of each other on each step, even if her feet could not always be visualized on camera. This suggests that her legs were not very far apart. She did not lose her balance on the steps, even though it was an awkward movement. Finally, when she got to "nine" on the way back, she paused, suggesting that she knew the test was complete. Notably, Officer Kolko did not instruct her how to end the test, instead instructing her to continue it until she felt she had finished. In summary, the Court finds that it was not objectively reasonable to conclude that Defendant Clukey demonstrated signs of impairment on this test.

Officer Kolko administered a third test, called the "one leg stand." According to his instructions for this test, Defendant Clukey was to hold her hands by her side, raise "either leg" such that her foot was approximately six inches off the ground, point her toe, and hold the position, counting out loud until he told her to stop.

Defendant Clukey tried to complete this test by raising her right leg. She could not hold her leg up for very long, getting to about 5 seconds. She then tried with her left leg and was able to hold the position for 14 seconds. In the end, Officer Kolko found two signs of impairment on this test, concluding that (1) Defendant Clukey was unable to complete the test on one side and (2) she had to use her hands for balance.

First, Officer Kolko told Defendant Clukey she could use whichever leg she preferred. Failing to hold her balance on one side but being able to hold it on the other is no different than if she had passed the test by using her successful side to start. In other words, the test does not require that the person pass on both sides. If Defendant Clukey had passed by using her left leg to start, no one would ever know that she had poor balance on her right side.

Second, Defendant Clukey did not use her hands or arms for balance while completing the test. Officer Kolko is incorrect on this point. Although Defendant Clukey raised her arms briefly while getting into position, she kept her hands by her side for the entire 14 seconds her left leg was raised. Accordingly, the Court finds that it was not objectively reasonable to conclude that Defendant Clukey demonstrated signs of impairment on this test, either.

The HGN test, the walk and turn test, and the one leg stand test are the three FSTs that are customarily performed when an officer has a reasonable articulable suspicion of impairment. Officer Kolko chose to administer two additional tests. The Court concludes that the likely reason for his choosing to do so was that he did not find enough evidence of impairment on the basis of the first three tests alone to make an arrest.

The fourth FST that Officer Kolko administered was the Romberg test. For this test, Officer Kolko instructed Defendant Clukey to place her feet together, hold her hands by her side, close her eyes, tilt her head back, and "imagine without counting out loud 30 seconds." Once she reached 30 seconds, Defendant Clukey was supposed to indicate she was done.

Officer Kolko found three clues of impairment when Defendant Clukey completed this test. First, he observed swaying. Second, he found that she stopped the test at 23 seconds, not 30. Third, he saw eyelid tremors, which he knew to be consistent with marijuana usage.

Again the Court has watched the video several times and despite paying careful attention, it cannot observe any significant swaying. Defendant Clukey appeared still...