By GAIL OBER, LACONIA DAILY SUN
LACONIA – A judge will decided whether a Gilford police officer was acting legally when he ordered a defendant's car be towed after a traffic stop because it had red tail light tape instead of a tail light.
Presiding Belknap County Superior Court Justice James O'Neill will also decide who was questioning whom and whether or not Joshua Levesque's right to not speak without and attorney were violated.
Levesque, 26, was stopped on Feb. 26 at 7:26 p.m. by Patrol Officer Curtis Mailloux because one of his tail lights was “completely missing.” Levesque pulled into a car wash and parked near the vacuum machines, said Mailloux's report.
Mailloux said the car windshield was cracked and that it “was not in condition to be on a roadway.” He ordered that it be towed. During an inventory search, he found a small spoon that later field-tested for fentanyl.
Levesque was wanted on an outstanding warrant from Rochester for shoplifting, said the report, and had been arrested and released earlier in the day by Laconia Police.
Once at the Gilford Police station and after he was put in a holding cell, police reports said Levesque began crying and Mailloux asked him “What is wrong?” The two had a conversation in which they discussed what would happen to him over the weekend. Levesque also said the Laconia Police had just searched his car and they left the spoon in it.
Mailloux's report said he said, “'Laconia (police) just left a piece of paraphernalia inside of your car?'”
Levesque balked at cooperating with the booking process but finally allowed police to take his picture. Mailloux read him his Miranda rights and Levesque signed a form saying he didn't want to speak with police without an attorney.
Then Levesque allegedly told Mailloux he was going to get really sick. Mailloux asked why, because he said Levesque had already told him he had been clean for two days.
Mailloux also seized $1,105 from Levesque who told him it was his tax returns. He told him that if he could document the money was from taxes and not drug sales, he would get it back.
Levesque refused to be fingerprinted and told Mailloux to “just take him to county.”
Levesque's attorney, Eric Wolpin, argued the car should not have been towed because it was road worthy, according to the state's tail lights and license plate lights laws. He said the light bulbs were working and the crack in the windshield was not obstructive.
Wolpin went on to say that even if, for the sake of an argument, the car was not road-worthy, that police violated their own internal policy by towing it from private property. He said state law requires that the property owner must initiate the tow. Without the tow, said Wolpin, the inventory search was unlawful, and the evidence is inadmissible.
As to the discussion in the police station, Wolpin said police can't prove Levesque “knowing, willingly and voluntarily” gave up his right to refuse to be interviewed in a custodial interrogation. He said that Levesque's statement to Mailloux should not be presented to a jury.
The Belknap County Attorney's Office has objected to all of Wolpin's challenges, saying that Mailloux had the right to stop the car because the tail light was completely missing and it was night time and dark.
The state argues that the law requiring a private property owner to initiate a tow doesn't apply because the police can make a reasonable determination that car is not road worthy.
As to Levesque's claim that Mailloux violated his constitutional rights by speaking with him before and after reading him his rights is unfounded because Levesque was the one asking the questions and Mailloux was answering them.
The state says that when Mailloux asked him what was wrong, he was not interrogating him and that he was only answering Levesque's questions.
“None of the officer's remarks can be construed as the functional equivalent of questioning,” according to the state.