May 24, 2018
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Law Court vacates Ellsworth man’s OUI conviction, says police stop was not justified

By Mario Moretto, BDN Staff

ELLSWORTH, Maine — The Maine Supreme Judicial Court on Tuesday effectively overturned an operating under the influence conviction against an Ellsworth man after the court determined the stop that resulted in his OUI charge violated his Fourth Amendment rights.

Daniel Whitney was charged with OUI in November 2010. In June 2011, he filed a motion to suppress all evidence against him, arguing that “the stop was not justified because [Ellsworth Police Officer Shawn Willey] had not observed any illegal activity” prior to stopping Whitney, according to the court’s decision.

Ellsworth District Court denied that request, and in December 2011, Whitney entered a conditional guilty plea, preserving his right to appeal the District Court’s denial of his motion to suppress. The Law Court vacated the conviction in a 4-2 decision, with Chief Justice Leigh Saufley and Justice Donald Alexander dissenting.

Around 1:40 a.m. on Nov. 13, 2010, Willey responded to a single-vehicle accident on the Christian Ridge Road in Ellsworth. The vehicle had gone off the road, struck a utility pole and rolled over. No operator was present, and no blood was at the scene, Willey said.

Willey and his police dog searched for the driver, but turned up nothing. Ninety minutes later, Willey found a group of three men speaking with a driver and passenger of a vehicle that pulled alongside them on Red Bridge Road, a few miles from the accident. The driver was Daniel Whitney.

Willey began to speak with the pedestrians and Whitney started to drive away, at which point Willey told him not to leave because he wanted to verify that neither Whitney nor his passenger were in the accident. According to the court document, Willey had testified he did not see anything illegal before detaining Whitney.

It was three or four minutes before the officer approached the vehicle. When he did, Willey “detected the odor of intoxicating beverages and noticed an open can of beer in the vehicle,” which ultimately led to the OUI charge.

Whitney appealed the lower court’s decision to deny his effort to throw out the evidence gathered in what he said was an unconstitutional stop. On Tuesday, the Law Court agreed.

Willey was investigating the crime of “failing to report an accident,” the court ruled, which is not a serious enough crime to warrant detentions when no reasonable suspicion of criminal conduct is aroused.

“The stop of a motorist three to four miles from the scene of a single-vehicle accident, at least 90 minutes after the accident occurred, is unlikely to significantly aid an investigation into whether the vehicle’s operator had reported the accident to the proper authorities,” wrote Justice Andrew Mead for the majority.

Mead continued: “Sanctioning the stop here would grant law enforcement unfettered discretion to randomly stop any given motorist more than an hour after a crime had been committed, in the absence of any reasonable articulable suspicion of criminal conduct, on the chance that the vehicle’s occupants may have had something to do with the crime. The Fourth Amendment prohibits that result.”

Jeffrey Toothaker of Ellsworth represented Whitney from the beginning. He said there’s no question that his client was driving while intoxicated. While it may look like Whitney got off on a technicality, he said, it’s important for law enforcement to follow the rules.

“The state has rules. If they don’t follow the rules, they don’t get the conviction,” he said Wednesday. “We asked the court to enforce the rules, and we won.”

Writing for the dissenting minority, Saufley said that the “minimal” intrusion to Whitney’s liberty was outweighed by the stop’s potential to provide critical information in which an unknown person was involved in a serious accident. For that reason, she wrote, the lower court was right to deem the stop legal.

While the court’s decision doesn’t technically reverse the guilty conviction, Toothaker said, it does mean that the lower court must throw out the evidence against Whitney. That all but guarantees the charges are dismissed, he said.

Willey was unavailable Wednesday and Ellsworth Police Lt. Harold Page declined comment on this story.

Follow Mario Moretto on Twitter at @riocarmine.

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