State v. Siergiey

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-430


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Edward J. Siergiey                           Unit No. 2, Chittenden Circuit

                                             January Term, 1990



Frank G. Mahady, J.

Jeffrey L. Amestoy, Attorney General, and David E. Tartter, Assistant
   Attorney General, Montpelier, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, William A. Nelson and Henry Hinton,
   Appellate Defenders, and Sheila D'Amico, Law Clerk (On the Brief),
   Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     PECK, J.   Defendant appeals his convictions of operating a motor
vehicle while under the influence of intoxicating liquor, in violation of 23
V.S.A. { 1201(a)(2), and driving while his license to operate was suspended,
contrary to the provisions of 23 V.S.A. { 674.  His appeal rests on three
claims: that the initial stop by the police that led to the charges was
unlawful; that certain testimony by the arresting officer was improperly
admitted at trial; and that the prosecutor's closing argument included facts
not in evidence.  We affirm.


                                    I.
     Defendant first claims that the police officer's "stop" of his car
violated his rights under the Fourth Amendment to the United States
Constitution and Chapter I, Article 11 of the Vermont Constitution, in that
it was not based on a reasonable and articulable suspicion that a violation
of the motor vehicle laws was taking place.  See State v. Boardman, 148 Vt.
229, 231, 531 A.2d 599, 601 (1987).  The pertinent facts are as follows.
Officer Ernest Rheaume of the South Burlington police was contacted by
another officer who had received a citizen complaint of an automobile being
driven in an erratic manner; the complainant also provided the officer with
the vehicle's registration plate number.  Rheaume ran a registration check
and learned the car was owned by defendant and that his address was on
Simpson Court.  He proceeded to the address and observed the car with the
reported plate number on a side street travelling "extremely slowly."  After
the car turned onto Simpson Court, Rheaume turned around to follow and
activated his blue light.  The car did not stop but continued along Simpson
Court and then pulled into the driveway at defendant's address.  Rheaume
pulled over and approached the vehicle on foot, noting, as defendant emerged
from the car, obvious signs of intoxication.  Defendant claimed later that
he had not been aware of the police car or the flashing light until he got
out of his car.
     Defendant contends that the tip, although coupled with the observation
of slow driving, was insufficient to constitute the reasonable suspicion
required for an investigatory stop under the Fourth Amendment and Article
11.  We disagree.  Even assuming that activation of the cruiser's flashing
light constituted a "stop" in the constitutional sense, (FN1) see Michigan v.
Chesternut, 108 S. Ct. 1975, 1980-81 (1988) (no stop where police cruiser,
without siren or flashing lights, followed alongside defendant running on
sidewalk), we hold that the officer had reasonable grounds to take such
measures.
     In State v. Kettlewell, 149 Vt. 331, 335, 544 A.2d 591, 594 (1987), we
said that the test "in evaluating the validity of an investigatory seizure .
. . is 'whether, based upon the whole picture, [the agents] . . . could
reasonably surmise that the particular vehicle they stopped was engaged in
criminal activity.'"  (Quoting United States v. Cortez, 449 U.S. 411, 421-22
(1981)).  Investigatory stops are permitted where "specific and articulable
facts which, together with rational inferences taken therefrom, reasonably
warrant that intrusion."  State v. Ryea, ___ Vt. ___, ___, 571 A.2d 674, 675
(1989); see also Terry v. Ohio, 392 U.S. 1, 21 (1968); State v. Lambert, 146
Vt. 142, 143, 499 A.2d 761, 762 (1985).  The requisite "level of suspicion
is considerably less than proof of wrongdoing by a preponderance of the
evidence."  United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989).
Defendant offers no reasons to adopt different principles under the Vermont
Constitution.
     Here, the officer's "whole picture" included the specific facts of a
citizen complaint of erratic driving, along with the vehicle's registration
number, and the officer's own observation of the defendant driving
"extremely slowly" -- as the officer testified, 5 to 10 m.p.h. in a 35
m.p.h. zone.  The tip was not anonymous (although officer Rheaume did not
himself know who had given it) and there were no special reasons to doubt
its reliability.  "Generally, information about criminal or suspicious
activity from a citizen, who is not a paid informant and is unconnected with
the police, is presumed to be reliable."  Kettlewell, 149 Vt. at 336, 544 A.2d  at 594.  For purposes of this case, however, we need not determine
whether the tip alone would justify a stop, nor whether the observation of
"extremely slow" driving by itself would be sufficient.  Taken together, the
information available to the officer combined with his own observations was
adequate to warrant an investigatory stop.  Indeed, in Lambert, we upheld
the validity of a vehicle stop where the officer, "lacking personal know-
ledge and observing no erratic behavior before the stop, based the stop
solely on thirdhand hearsay."  146 Vt. at 143, 499 A.2d  at 762.  Certainly,
courts have upheld investigatory stops on less information than was trans-
mitted to and observed by Officer Rheaume.  See, e.g., State v. Czmowski,
393 N.W.2d 72, 72-74 (S.D. 1986) (vehicle stop upheld where based on
anonymous call that car was being driven erratically and only corroboration
was finding described car in area) (citing cases).
                                    II.
     Defendant next claims that the arresting officer's observations of his
behavior and demeanor were disclosed at trial in violation of his right not
to be compelled to incriminate himself.  See Miranda v. Arizona, 384 U.S. 436 (1966).  Over objection, the officer testified that, during processing,
the defendant was "abusive, arrogant, incoherent, very talkative, evasive."
Defendant asserts that this evidence, albeit nontestimonial, should have
been suppressed as a product of illegal police interrogation.
     Even assuming that the officer's interrogation in this case violated
defendant's Miranda rights, and that his observations of defendant's
behavior and demeanor were thereby excludable -- both questions we do not
decide today -- it is apparent from the record that the officer's testimony
was solidly based on observations made both prior to any unlawful inter-
rogation that might have occurred and during routine questioning for DUI
booking.  That questioning was not of an incriminatory nature and therefore
not subject to the Fifth Amendment privilege.  See Pennsylvania v. Muniz,
___ U.S. ___, ___, 58 U.S.L.W. 4817, 4822-23 (June 18, 1990) (answers to
routine booking questions designed to secure biographical data and incrim-
inating statements made during officer's recitation of instructions for
sobriety and breathalyzer tests need not be suppressed even though not
preceded by Miranda warnings); United States v. Gotchis, 803 F.2d 74, 79 (2d
Cir. 1986) ("Routine questions about a suspect's identity and marital
status, ordinarily innocent of any investigative purpose, do not pose the
dangers Miranda was designed to check . . . .").
     Two examples of exchanges between the officer and defendant taped
during his processing suffice to make the point clear.  The transcript of
the tape begins as follows:
   Cpl. Rheaume:  Okay Ed, this is the Miranda advice before we go any
                  further.
   Siergiey:      Do do do you know something

   Cpl. Rheaume:  Okay, before we go any further I want to explain these
                  rights to you.
   Siergiey:      No no no I I I refuse those rights right now.

   Cpl. Rheaume:  Well just listen to them.
   Siergiey:      No no I know I know but but you didn't give me the
                  Miranda rights you like at the beginning when you
                  brought me in.

   Cpl. Rheaume:  I'm giving them to you now.
   Siergiey:      No no no I refuse to accept um.

   Cpl. Rheaume:  Edward, listen.
   Siergiey:      I refuse to accept um.

   Cpl. Rheaume:  Now Edward, listen you have to cooperate.  You may
                  remain silent.  Anything you say can be used against
                  you in court.  You may refuse to answer any questions
                  asked of you at any time.  If you cannot afford an
                  attorney and want one you can contact a public
                  defender or one will be contacted for you at the state
                  expense before questioning.  You have the right to have
                  your attorney present during questioning.  Do you
                  understand these rights?  Are you refusing to answer?
                  You refuse to answer.
   Siergiey:      Excuse me, excuse me I I didn't say anything.

   Cpl. Rheaume:  Do you understand your rights?
   Siergiey:      I I understand my rights.

   Cpl. Rheaume:  Okay.
   Siergiey:      Wait a second wait a second I I just want to say that
                  you did not you know give me um you did not give me my
                  Miranda rights when you first arrested me.  Do you know
                  that?

Conversation of the same tenor continued until, in response to the officer's
question "What did you drink tonight?", defendant responded, "I will sustain
the fifth, fifth amendment" -- his first invocation of the right to remain
silent.
     The officer subsequently requested a breath sample from the defendant
and tried to explain the consequences of refusal.  He then proceeded to
collect biographical information, and asked the defendant about his mother's
name.
   Cpl. Rheaume:  Her last name?
   Siergiey:      Black, Blank.

   Cpl. Rheaume:  That's her last name?  Address?
   Siergiey:      Her address uh 0 zero Street, Zero State Zero.  I can't
                  tell you all this.

   Cpl. Rheaume:  Why?
   Siergiey:      Because I think that my parents have a little privacy
                  that they deserve.  Am I so interesting that you have
                  to you know like pick me up you know give me my court
                  hearing in my yard.  I went through you know --

     The officer was not forbidden from testifying about his observations of
defendant during these lawful exchanges.  The trial court properly allowed
the testimony.
                                   III.
     Defendant's third and final claim is that the court improperly allowed
prosecution argument based on facts not in evidence.  In her closing argu-
ment, the prosecutor recounted Officer Rheaume's observations at the scene,
and concluded: "Those are the things that the officer looks for as a result
of the training -- "  Defense counsel objected, the court overruled the
objection, and the prosecutor continued: "The officer testified that as a
result of his training there are certain things that he looks for and those
are the things that he was looking for that night."  In fact, this comment
did not mirror the officer's testimony; Rheaume had testified only that he
had received training in the detection of typical signs of intoxication, not
mentioning what those signs were.  Even if the prosecutor's argument went
beyond permissible bounds, we cannot imagine what possible prejudice it
caused to defendant's case.  The officer testified clearly that he was
trained in the detection of intoxication and that defendant showed symptoms
of intoxication, namely, odor of intoxicants on his breath, slurred speech,
watery and bloodshot eyes, and swaying.  We are confident beyond a doubt
that the jury was not affected by the prosecutor's assertedly unfounded
statement that the symptoms Officer Rheaume in fact observed were those he
was trained to observe.  V.R.Cr.P. 52(a).
     Affirmed.


                                             FOR THE COURT:





                                             _____________________________
                                             Associate Justice





FN1.     Once the officer approached the car on foot and observed the driver
in person, his suspicions were reasonable, and defendant does not claim
otherwise.  He contends, however, that for constitutional purposes he was
stopped prior to that encounter, and it is the grounds for that initial stop
that he contests.  In light of our disposition of the issue, we need not
decide whether the officer's actions prior to the face-to-face encounter
constituted a stop.