State v. Sutphin

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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.
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No. 90-258

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Addison Circuit

Donna Sutphin December Term, 1990

Linda Levitt, J.

William T. Keefe, Addison County Deputy State's Attorney, Middlebury,
for plaintiff-appellee

Bonnie Barnes of Sessions, Keiner, Dumont, Barnes & Everitt, Middlebury,
for defendant-appellant

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

ALLEN, C.J. Defendant appeals from the trial court's denial of her
motion to suppress evidence. She was charged with driving while intoxi-
cated, a violation of 23 V.S.A. { 1201. Defendant contends that the "stop"
of her vehicle constituted an illegal seizure under the Fourth Amendment to
the United States Constitution. We hold that the Fourth Amendment was not
violated, and affirm.
On September 24, 1989, at approximately 1:15 a.m., an Addison County
Deputy Sheriff came up behind a vehicle "inappropriately" signaling a right
turn in an area where there was no right turn. The vehicle was being
operated at varying rates of speed as it headed up a hill toward a curve.
After traveling around a left-hand curve, the vehicle pulled off to the side
of the highway, outside the white line, and came to a stop. The officer
pulled up behind the vehicle and activated his blue lights. He then exited
his vehicle and requested that defendant produce her operator's license and
registration. As a result of his observations during this interview, the
officer processed defendant for DUI.
The trial court found that, under all the circumstances, it was reason-
able for the officer to speak to defendant. The issue on appeal is whether
the trial court erred in finding that the officer had reasonable grounds for
an investigative detention under the circumstances presented. We will not
disturb a trial court's findings unless they are unsupported by the evidence
or are clearly erroneous. State v. Zaccaro, 154 Vt. 83, 86, 574 A.2d 1256,
1258 (1990).
The parties disagree over whether the officer's action constituted an
investigatory stop within the meaning of the Fourth Amendment, but it is
unnecessary to resolve this question because there were grounds for a stop,
assuming a stop occurred. A "reasonable and articulable suspicion" of
wrongdoing is necessary for a police officer to stop a motor vehicle that is
being operated on the highway. State v. Emilo, 144 Vt. 477, 481, 479 A.2d 169, 171 (1984). See Delaware v. Prouse, 440 U.S. 648, 663 (1979).
The question is whether the officer had reasonable grounds to suspect
that defendant was engaged in any wrongdoing at the time of the encounter.
The level of suspicion required under the Fourth Amendment is considerably
less than proof of wrongdoing by a preponderance of the evidence, United
States v. Sokolow, 490 U.S. 1, 7 (1989), but it must be more than an
"inchoate and unparticularized suspicion or 'hunch.'" Terry v. Ohio, 392 U.S. 1, 27 (1968). An adequate basis for judicial review of the officer's
action exists when the officer gives a reasonably specific statement of the
circumstances underlying his action together with his reaction to the
situation with which he was confronted. State v. Carnevale, 598 A.2d 746,
748 (Me. 1991) (citing 3 W. LaFave, Search and Seizure { 9.3(a), at 428 (2d
ed. 1987)).
The officer gave such a statement. He observed a vehicle in the early
morning hours travelling at varying rates of speed, signaling to make a
right turn at a location where no right turn existed. (FN1) The signaling,
which he described as inappropriate, continued for several hundred feet
around a left curve after which the vehicle pulled off the highway and came
to a stop. These circumstances were sufficient justification for the officer
to conclude that criminal activity might be afoot and justified the stop under
Terry.
Affirmed.

FOR THE COURT:

Chief Justice

FN1. Defendant argues that the right turn signal was activated to
indicate her intention to pull over to let a faster moving car pass. 23
V.S.A. { 1064(e) requires directional signals to be used "to indicate an
intention to turn, change lanes, or start from a parked position," and
prohibits their use as a courtesy or "do pass" signal to operators of other
vehicles approaching from the rear.

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Concurring

No. 90-258

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Addison Circuit

Donna Sutphin December Term, 1990

Linda Levitt, J.

William T. Keefe, Addison County Deputy State's Attorney, Middlebury,
for plaintiff-appellee

Bonnie Barnes of Sessions, Keiner, Dumont, Barnes & Everitt, Middlebury,
for defendant-appellant

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

DOOLEY, J, concurring. I concur in the result, but on different
grounds. The critical factor for me is that there was no stop by the
officer in this case. It is undisputed that defendant pulled off the road
and came to a complete stop before the officer pulled up behind her. Thus,
we must distinguish this case from those like State v. Emilo, 144 Vt. 477,
481, 479 A.2d 169, 171 (1984), where a police officer used flashing blue
lights in order to stop a vehicle. I think it is clear that the degree of
restraint on defendant was significantly less than if there had been a stop.
See, e.g., People v. Murray, 137 Ill. 2d 382, 390, 560 N.E.2d 309, 313
(1990).
Ordinarily, where there is no stop there is no seizure, and the
constitutional protection on which defendant relies does not apply. Three
facts present here might change that conclusion: (1) the officer approached
defendant's car "armed and in uniform"; (2) the officer asked for
defendant's license and registration; and (3) when he stopped, the officer
activated his flashing blue lights. It is clear that neither of the first
two facts amount to a seizure. The United States Supreme Court has held
that a uniformed officer approaching a citizen, asking questions of the
citizen and asking for identification, is not a seizure, a holding most
recently reaffirmed in Florida v. Bostick, 111 S. Ct. 2382, 2386 (1991), in
which the Court concluded that the rule was no different on a bus even
though the individual involved did not feel free to leave the bus. As a
result, courts have uniformly held that "the mere approaching and
questioning of a person seated in a parked vehicle does not constitute a
seizure." People v. Murray, 137 Ill. 2d at 291-92, 560 N.E.2d at 313-14;
see generally 3 W. LaFave, Search and Seizure { 9.2(h), at 409 (2d ed.
1987). Further, they have held that requesting a license and registration
does not constitute a seizure unless the officer does not return these
documents. See generally, 3 W. LaFave, Search and Seizure { 9.2(h) at 414
n.252.
The only ground to find a seizure in this case is the use of flashing
blue lights. In looking at this issue, I accept that the use of these
lights is normally viewed as a police "order" to stop. See Moyer v. Dunn
County, 691 F. Supp. 164, 169-70 (W.D. Wis. 1988). One commentator has
noted, "Certainly it seems an officer seeking to avoid a seizure should not
activate the lights of the squad car." Butterfoss, Bright Line Seizures:
The Need for Clarity in Determining When Fourth Amendment Activity Begins,
79 J. Crim. L. & Criminology 437, 456 n.109 (1988). Despite these
generalizations, with which I agree, I do not believe the use of the lights
in this case resulted in a seizure.
First, our law distinguishes between the use of flashing lights to
stop a motorist and the use for other purposes. All of the statutes
imposing requirements on a motorist when approached by a law enforcement
vehicle using flashing blue lights involve use of the lights to stop the
vehicle. See 23 V.S.A. { 1012 (operator "shall promptly and carefully stop
when signalled to stop by an enforcement officer wearing insignia which
identifies the officer"); { 1013 (person may not "knowingly fail or refuse
to comply with any lawful order" of enforcement officer); { 1133 (an
operator must "bring his vehicle to a stop when signalled to do so by an
enforcement officer . . . operating a law enforcement vehicle . . .
displaying a flashing blue . . . signal lamp"). The presence of a stopped
law enforcement vehicle with a flashing light more often gives a message
that there is a road hazard, and cars should proceed with caution. Indeed,
the flashing lights may have been used for this purpose here since the
shoulder was narrow.
Second, the primary message that the flashing lights give is the
presence of a law enforcement vehicle because only such a vehicle can use
this color of flashing light. 23 V.S.A. { 1252(a)(1). In a major sense,
the use of the flashing light is similar to the uniform; it identifies the
presence of a law enforcement officer. If the visible symbol of law
enforcement does not bring about a seizure in one instance, it should not
necessarily do so in the other instance. While some persons might find the
flashing lights to be more intimidating than the uniform, the difference is
one of degree, not kind. I see no bright line between these symbols.
Most significant for me is the third reason -- we want law enforcement
officials to use a visible signal of their presence in a case like this.
This incident occurred late at night on a remote and isolated stretch of
road. If we prohibit the use of the lights in such circumstances, we are
requiring that the officer approach the vehicle with no way of showing that
the officer presents no threat to the well-being of the occupant of the
vehicle. Even if we view the officer solely as a criminal investigator, it
is highly desirable, for both the vehicle occupant and the officer, that the
occupant know that the person approaching is an officer. In the context of
a DUI roadblock, we have required "a visible display of legitimate police
authority" to meet Fourth Amendment requirements. State v. Martin, 145 Vt.
562, 571, 496 A.2d 442, 448 (1985). The need for a visible display is much
greater in this case. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, ___ (1990) (checkpoint stops involve less generation of concern or fear
in motorists than stops by roving patrols).
We must also deal with the likely scenario that the officer will be
providing assistance to a disabled vehicle and must warn other motorists of
a potentially hazardous condition. If the use of flashing blue lights
constitutes a seizure, it is because they represent a "show of authority."
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Normally a seizure occurs "only
if, in view of all the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave." United States v.
Mendenhall, 446 U.S. 544, 554 (1980). As the Supreme Court has recently
explained, however, the Mendenhall test is incomplete in show-of-authority
cases. See California v. Hodari D., 111 S. Ct. 1547, 1551 (1991). In
addition to concluding that a reasonable person would not have believed she
was free to leave, we must also conclude that there was actually a
submission to the assertion of authority. See id. I find it difficult to
so conclude in this case. Because the officer may have employed the
flashing lights for a number of reasons, it is not clear that a reasonable
person would interpret them as meaning she is required to remain stopped or
that defendant so interpreted them in this case. In this doubtful
circumstance, I would not interpret the use of the lights as a command to
defendant to remain stopped. I note that in Hodari D., the Court's
interpretation of the Fourth Amendment was influenced by the policy
objective of avoiding dangerous street pursuit of criminal suspects. Id.
Similarly, in this case, my view of the concept of a seizure is influenced
by the desirability of having the officer be identified in some meaningful
way.

Associate Justice

-------------------------------------------------------------------------------
Dissenting

No. 90-258

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Addison Circuit

Donna Sutphin December Term, 1990

Linda Levitt, J.

William T. Keefe, Addison County Deputy State's Attorney, Middlebury, for
plaintiff-appellee

Bonnie Barnes of Sessions, Keiner, Dumont, Barnes & Everitt, Middlebury, for
defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse, Johnson, JJ.

JOHNSON, J., dissenting. Motorists and traffic law enforcement
officials alike will be astonished to learn that in Vermont (1) a motor
vehicle operator not only is not required to signal an intent to pull off to
the side of the road, but is committing an offense by doing so, and (2) if a
motor vehicle operator has pulled off to the side of the road and is then
approached by a law enforcement vehicle that pulls up and stops behind it
with its blue lights flashing, the operator is under no compulsion to stay
and may, even as the police officer steps from the cruiser, simply pull back
onto the road and freely drive away. These, however, are the teachings of
the plurality and concurring opinions, respectively. Because I believe that
those propositions are contrary to law and fly in the face of common sense,
I respectfully dissent.
On September 24, 1989, a deputy sheriff for the Addison County
Sheriff's Department was travelling south on Hallock Road in Waltham,
Vermont at about 1:15 a.m. He was on duty at the time and in a marked
cruiser. He was armed, and in uniform, although his companion from the
Department of Highway Safety was not. Hallock Road is a paved, two-lane
road in a rural area. It is narrow and winding, with narrow shoulders. As
the officer traveled south toward New Haven, he observed defendant's car in
operation. He was travelling faster than defendant's car, but was not
pursuing it. As he approached, he observed defendant's right turn signal
blinking. There were no right turns in the area. He also observed that the
vehicle's speed varied as it travelled through a curve. Immediately after
these observations, the officer saw defendant pull off the road to the right
and come to a complete stop. The officer, because he was "curious," pulled
in behind defendant's car and activated his blue lights. He got out of the
car, along with his companion, approached defendant, and asked for her
license and registration. She was not able to produce the documents at that
point, although she later produced them at the police station. As a result
of the officer's observations after he asked for defendant's documents, he
processed her for DUI. At the point defendant pulled off the road, the
officer had not observed any violation of law.
On these facts, the plurality holds that the officer had reasonable and
articulable suspicion to believe that defendant was involved in criminal
activity. The concurrence, on the other hand, concludes that there was no
seizure of defendant under the fourth amendment, and the officer was free to
question defendant without any suspicion that she had committed a crime.
The first question is whether a seizure occurred, because reasonable
and articulable suspicion is not required for police encounters that do not
amount to a seizure. Florida v. Bostick, 111 S. Ct. 2382, 2386 (1991);
State v. Paquette, 151 Vt. 631, 634, 563 A.2d 632, 635 (1989). The
concurrence emphasizes that because defendant stopped herself, and the
police walked up to her, she was not seized within the meaning of the fourth
amendment.
Police conduct amounting to seizure of a person may occur in a variety
of places -- on the street, as in Brown v. Texas, 443 U.S. 47, 48 (1979) and
Terry v. Ohio, 392 U.S. 1, 5 (1968), in cars, as in Delaware v. Prouse, 440 U.S. 648, 650 (1979) and State v. Emilo, 144 Vt. 477, 479, 479 A.2d 169, 170
(1984) or when stopped in one's own driveway, as in State v. Ryea, 153 Vt.
451, 457, 571 A.2d 674, 674 (1990). Thus, whether a person is seized
within the meaning of the fourth amendment does not depend on whether it was
police restraint that caused him to stop moving, but on whether the
encounter with police restrained his liberty, even if briefly. Florida v.
Bostick, 111 S. Ct. at 2387; see Brown v. Texas, 443 U.S. at 48, 50 (person
standing in alley was seized when officers asked him for identification).
The rule for determining if a particular encounter with the police
constitutes a seizure under the fourth amendment requires this Court to
consider whether, in light of all of the circumstances surrounding the
incident, "the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers' requests or
otherwise terminate the encounter." Bostick, 111 S. Ct. at 2389.
In Bostick, two officers of a Florida county sheriff's office boarded a
bus to question the passengers. Id. at 2384-85. Although the purpose of
the questioning was to intercept drug trafficking, they had no reasonable
and articulable suspicion to question Bostick, who was seated on the bus.
Id. The officers requested Bostick's consent to search his luggage for
drugs and advised him of his right to refuse. Id. at 2385. Bostick gave
his consent to the search, the officers found cocaine in his luggage, and he
was arrested. Id. The Court concluded that because the bus was scheduled
to depart shortly after the officers boarded it, and Bostick had been
advised of his right to refuse consent and had expressly agreed to the
search, he was, under all the circumstances, engaged in a voluntary
encounter with the police that he chose not to terminate. Id. at 2386-87.
The Bostick Court reversed the bright-line rule adopted by the Florida
Supreme Court that such police questioning on buses was, per se, a seizure.
Id. at 2389. In doing so, however, the Court reaffirmed the objective "free
to leave" test outlined in United States v. Mendenhall, 446 U.S. 544, 554
(1980), and held that it applies wherever an encounter with the police
occurs. Bostick, 111 S. Ct. at 2386-89. Thus, when police walk up to a
person to ask questions, the inquiry under the fourth amendment is the same
whether the person is sitting on a bus or in a car.
A few months before the Bostick decision, the Court decided California
v. Hodari D., 111 S. Ct. 1547 (1991). Bostick cites Hodari D. as support for
the objective "free to leave" test, Bostick, 111 S. Ct. at 2387, but the
decision in Hodardi D. relies on a different analysis and posits a different
rule. Relying on the common law of arrest, the Court held that a suspect
who was chased by a police officer was not seized until either physical
force was applied to stop him, or he submitted to the officer's authority.
Hodari D., 111 S. Ct. at 1550-57. Thus, the drugs that the suspect discarded
from his person while running were not suppressed because he had not, at
that point, submitted to the officer's authority or been subdued by him.
Id. at 1552.
In my view, it is impossible to reconcile the two rules that emerge from
Bostick and Hodari D. Certainly, being chased by police officers conveys
the message that compliance with police requests is required, and that,
therefore, the encounter is not voluntary. Bostick, 111 S. Ct. at 2387. But
whether one applies the Bostick "free to leave" test, which is more
appropriate to the facts of the case before us, or the Hodari D.
"submission to authority" rule, defendant here was seized when the police
cruiser pulled in behind her, activated the overhead lights, approached the
car, armed and in uniform, and asked to see her driver's license and
registration. At that point, defendant reasonably concluded she was not
free to leave or decline the officer's requests, and submitted to authority
by not leaving the scene.
Lesser displays of authority have been held to constitute seizures
under the fourth amendment by this Court and others. State v. Emilo, 144
Vt. at 481, 479 A.2d at 171 (activation of blue lights to stop car requires
reasonable and articulable suspicion); Wibben v. North Dakota State Highway
Commissioner, 413 N.W.2d 329, 330, 331 (N.D. 1987)(approaching parked car
and tapping on window with flashlight was a seizure under the fourth
amendment); State v. Walp, 65 Or. App. 781, 783-84, 672 P.2d 374, 375
(1983)(use of overhead lights behind voluntarily stopped car was sufficient
show of authority to restrain liberty of defendant within meaning of state
statute where the test for a stop is identical to the test under the fourth
amendment); State v. Stroud, 30 Wash. App. 392, 396, 634 P.2d 316, 318
(1981)(fourth amendment seizure occurred when officers pulled up behind
parked vehicle and activated lights).
It is true, as the concurrence argues, that flashing blue lights are
used by the police to indicate road hazards, convey other public safety
messages, or even to identify themselves as law enforcement officers. In
such circumstances, flashing blue lights do not always constitute a show of
authority; but these distinctions are not applicable here. In this case,
the conclusion is inescapable that the lights were used for no other purpose
than to signal defendant that she was not free to leave because the police
officer wanted to question her. Defendant was pulled off to the side of a
rural road at 1:00 a.m. in the morning. There was no other traffic on the
road. The lights were directed at defendant and no one else. After the
lights were flashed, the police officer approached defendant. He did not
ask her if she was all right or needed assistance. He asked for her license
and registration. At that point, no reasonable person would have felt free
to terminate the encounter and drive away.
Moreover, defendant's attention to the police officer's requests was
implicitly, if not explicitly, compelled by Vermont statutes and the Vermont
Driver's License Manual, published by the Vermont Commissioner of Motor
Vehicles, which require drivers to respond to the requests of police
officers and remain at the scene after an officer displays the overhead
lights. See, e.g., 23 V.S.A. { 1012 (Obedience to enforcement officers), {
1013 (Authority of enforcement officers), and { 1133 (Attempting to elude a
police officer); Vermont Driver's Manual at 13, 33 (36th ed. 1991). To
compel defendant to comply with Vermont law, and then deprive her of her
fourth amendment rights for doing so, is an unjust result.
Florida v. Bostick commands that we consider the totality of
circumstances in judging whether a seizure occurred, not whether each
separate element of police conduct, by itself, constituted a seizure. In
this case, the blue lights, directed at defendant and coupled with the
request to produce her license and registration, were actions that were
intended to and did assert the police officer's coercive authority. Under
these circumstances, defendant was seized.
II.
The next inquiry focuses on whether the officer's actions were
reasonable and therefore justifiable under the fourth amendment.
Ordinarily, the reasonableness of a seizure under the fourth amendment
requires courts to balance "the public interest and the individual's right
to personal security free from arbitrary interference by law officers."
United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). To avoid giving
police officers unfettered discretion to intrude arbitrarily on an
individual's reasonable expectation of privacy, see Delaware v. Prouse, 440 U.S. 648, 654 (1979), the balancing inquiry requires that an officer have
reasonable and articulable suspicion that an individual is engaged in
criminal activity, or is violating a motor vehicle law, before the officer
may conduct a brief, investigatory stop. Brown v. Texas, 443 U.S. at 50-
51; State v. Emilo, 144 Vt. at 481, 479 A.2d at 171; State v. Hewey, 144 Vt.
10, 13, 471 A.2d 236, 238 (1983).
Taking the testimony of the officer in the instant case as true, see
State v. Weiss, 155 Vt. 558, 562, 587 A.2d 73, 75 (1991)(legality of a
search warrant turns on whether, taking the information in the affidavits as
true, there was substantial evidence supporting issuance), the officer
presented no facts from which one could objectively conclude that defendant
was engaged in criminal activity or was violating a motor vehicle law. The
officer testified that he noticed a car ahead of him with its right turn
signal blinking and that the car, after slowing down through a curve, pulled
off the road to the right. The officer had not observed any violation of
law at the point he pulled off the road behind defendant's car. There was
no testimony to suggest that the officer even suspected a violation of law.
The officer stopped because he was curious. He gave no reason for his
curiosity other than that a car was pulling off to the side of a rural road
at night.
The plurality opinion concludes that, because defendant used her right
turn signal before she pulled off the road, she violated a rule of the road,
23 V.S.A. { 1064(e). Section 1064 (Signals Required), provides

The signals provided for in section 1065
of this title shall be used to indicate
an intention to turn, change lanes, or
start from a parked position and may not
be flashed on one side only on a parked
or disabled vehicle, or flashed as a
courtesy or "do pass" signal to operators
of other vehicles approaching from the
rear.

(Emphasis added.) There is no evidence in the record on which to base the
conclusion that defendant was signalling the officer as a courtesy to pass.
Her actions could just as easily be interpreted as changing lanes, which
requires a signal. Even if her maneuver is not considered a change of
"lanes" because she pulled onto the shoulder, her actions were consistent
with subsection (a) of { 1064, which requires motorists to signal before
changing direction.
I cannot believe that { 1064, whatever its ambiguities, was intended to
make the operation of a signal in these circumstances an offense. I doubt
there is a police officer or traffic enforcement official anywhere in the
country who thinks it is anything other than hazardous to fail to signal an
intent to pull off to the side of the road.
The plain fact is that the police seized defendant without reasonable
and articulable suspicion that she had committed a crime or violated a rule
of the road. The seizure was therefore unreasonable, and the evidence
obtained as a result should have been suppressed. See State v. Emilio, 144
Vt. at 484, 479 A.2d at 173. I therefore dissent. I am authorized to say
that Justice Morse joins me in this dissent.

____________________________________
Denise R. Johnson, Associate Justice

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