State v. Jestice

State v. Jestice (2003-093); 177 Vt. 513; 861 A.2d 1060

2004 VT 65

[Filed 18-Aug-2004]


                                 ENTRY ORDER

                                 2004 VT 65

                      SUPREME COURT DOCKET NO. 2003-093

                             NOVEMBER TERM, 2003


  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont,
                                       }	Unit No. 2, Addison Circuit
  Talmage Jestice	               }
                                       }	DOCKET NO. 710-10-02 Ancr

                                                Trial Judge: Helen M. Toor

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendant, who entered a conditional guilty plea to
  possession of cocaine, argues that the district court erred in denying his
  motion to suppress evidence obtained from an unjustified seizure.  We
  reverse.

       ¶  2.  At approximately two o'clock in the morning on August 8,
  2002, a uniformed Middlebury police officer on routine patrol in a fully
  marked police cruiser entered a trailhead parking lot and observed a young
  man, defendant, and a young woman sitting in a parked car.  The officer
  pulled his police cruiser nose-to-nose to the car, leaving his engine
  running and headlights on.  He testified that his cruiser "was essentially
  blocking the exit."  After calling in his location and running a check on
  the vehicle's plates, the officer approached the passenger's side of the
  car where defendant was sitting, shone his flashlight inside the car, and
  asked the couple what they were doing.  They responded that they were not
  doing anything.  Noticing a razor blade on defendant's thigh, the officer
  asked defendant what it was for.  When defendant feigned ignorance, the
  officer asked him to hand it over.  Defendant did so, at which point the
  officer noticed a white powder on the edge of the razor blade.  The officer
  then asked defendant "where's the rest of it?" and defendant handed him a
  small box containing cocaine.
   
       ¶  3.  At the trial court proceedings, defendant filed a motion to
  suppress, arguing that the State's evidence was the product of an unlawful
  seizure.  The district court denied the motion, ruling that the officer's
  initial approach of the parked car was not a stop, and that in any event a
  stop would have been justified because it was late at night and there was a
  man and a woman alone in the car with no one else around.  In the court's
  view, given this situation, the officer had good reason both to investigate
  potential criminal violations and to engage in community caretaking duties. 
  The court also concluded that reasonable persons in the couple's position
  would have felt free to leave because there was enough room for them to
  back up their car and maneuver it around the cruiser.  Further, according
  to the court, once the officer approached defendant's vehicle, he had a
  reasonable basis to assume that the razor blade, which was in plain sight,
  was being used for drugs and could be used as a weapon.  Therefore, the
  court determined that the officer was justified in questioning the couple
  further.  Finally, the court concluded that defendant consented to the
  officer's request to hand over the razor blade and the box containing the
  cocaine.

       ¶  4.  On appeal, defendant argues that the encounter amounted to a
  seizure, and that there was no justifiable basis for the seizure.  He also
  contends that, even if the officer was justified in detaining him, he did
  not consent to turning over the cocaine to the officer, but rather
  submitted to the officer's show of authority.  We agree that there was an
  unjustified seizure and, therefore, reverse the trial court's order denying
  defendant's motion to suppress.  See State v. Lawrence, 2003 VT 68  ¶ ¶
  8-9, 834 A.2d 10 (mem.) (we apply clearly erroneous standard to trial
  court's historical facts, but review de novo its ultimate legal conclusion
  on motions to suppress).
   
       ¶  5.  "A 'stop' is a shorthand way of referring to a seizure that
  is more limited in scope and duration than an arrest," and thus "police
  need not force or signal a vehicle to the side of a road to effect a stop
  of persons in the vehicle."  State v. Burgess, 163 Vt. 259, 261, 657 A.2d 202, 203 (1995).  "Courts have long held that a show of authority tending
  to inhibit a suspect's departure from the scene is sufficient to constitute
  a stop, even though the vehicle is already stopped at the time of an
  approach by police."  Id.  While merely approaching a person seated in a
  parked car does not, in and of itself, constitute a seizure, "activity
  which inhibits a person's freedom of movement does."  Id.  The question in
  determining whether an encounter between a citizen and police constitutes a
  seizure is whether, given all of the circumstances, the encounter is so
  intimidating that a reasonable person would not feel free to leave without
  responding to the officer's requests.  See State v. Paquette, 151 Vt. 631,
  634, 563 A.2d 632, 635 (1989).  This test is "necessarily imprecise"
  because it focuses on the interaction as a whole rather than the particular
  details of the encounter in isolation.  See People v. Casio, 932 P.2d 1381,
  1386 (Colo. 1997) (en banc).

       ¶  6.  The facts of this case pose a close question as to whether
  there was a seizure.  Defendant and his companion were parked alone late at
  night in a trailhead parking lot.  The uniformed officer pulled his marked
  police cruiser into the lot and parked nose-to-nose with the couple's car,
  leaving the engine running and the lights on.  The officer testified that
  he essentially blocked the exit to the lot, but he also testified that a
  second car could maneuver past his patrol car to get out.  After calling in
  his position, the officer approached the passenger side of the couple's car
  and asked them what they were doing.  The evidence indicates that the
  couple could have avoided the officer only by backing up and maneuvering
  their car around both the patrol car and the officer before squeezing
  through the exit. (FN1)  Both defendant and his companion testified that they
  had difficulty seeing because of the bright lights of the patrol car
  shining in their faces.  Under these circumstances, we conclude that the
  officer exhibited a show of authority tending to inhibit defendant from
  breaking off the encounter.  See Burgess, 163 Vt. at 261, 657 A.2d  at 203.
   
       ¶  7.  Although not necessarily controlling, when a police cruiser
  completely blocks a motorist's car from leaving, courts generally find a
  seizure.  Casio, 932 P.2d  at 1387-88 (position of patrol car relative to
  motorist's car is important consideration in determining whether seizure
  exists; if police car wholly blocks motorist's ability to leave, courts
  have held that reasonable person would not feel free to leave).  Here, the
  fact that it was possible for the couple to back up and maneuver their car
  past the patrol car and out of the trailhead parking lot does not convince
  us that this was a consensual encounter rather than an investigatory stop
  or that the officer's show of authority was insufficient to make a
  reasonable person feel that he was not free to leave.

       ¶  8.  Nor are we persuaded by the cases that the dissent cites in
  support of its position.  In United States v. Kim, 25 F.3d 1426 (9th Cir.
  1994), an agent of the Drug Enforcement Administration (DEA) parked his
  unmarked car so as to partially block a suspect's car, which was parked in
  front of a shop in downtown Honolulu.  The officer approached the suspect's
  car, identified himself as a DEA agent, and asked the suspect if he would
  answer a few questions.  The court determined that these circumstances
  amounted to a consensual encounter rather than an investigatory stop.  See
  id. at 1430-31.  The circumstances in Kim do not encompass the show of
  authority present in this case, where a uniformed officer parked his marked
  patrol car nose-to-nose against a couple's car late at night in a darkened
  trailhead parking lot with no one else around, left the cruiser's
  headlights shining in their faces as he approached them, and asked them
  what they were doing.  In Casio, the other case relied on by the dissent,
  two deputies approached a van parked just off a narrow mountain road in a
  no parking area.  The deputies parked their patrol car approximately ten to
  twenty feet behind the van and trained their a spotlight on the vehicle. 
  Noting that the circumstances presented a "close question" as to whether
  the encounter rose to the level of an investigatory stop, 932 P.2d  at 1385,
  the court found a consensual encounter rather than a seizure because the
  defendants' egress was "only slightly restricted" by the patrol car and
  because the officers engaged the defendants in a casual and friendly
  manner, id. at 1387-88.  Our case is also a close question, but the subtle
  differences noted above lead us to conclude that the encounter here rose to
  the level of an investigatory stop, and thus a seizure.

       ¶  9.  We now consider whether the seizure was justified.  A
  warrantless investigatory seizure is justified if the officer had "specific
  and articulable facts, taken together with rational inferences from those
  facts," that would "warrant a reasonable belief that a suspect is engaging
  in criminal activity."  State v. Caron, 155 Vt. 492, 499, 586 A.2d 1127,
  1131 (1990); see State v. Crandall, 162 Vt. 66, 70, 644 A.2d 320, 323
  (1994).  Here, the officer's statement that, while he was pulling his
  cruiser into the parking lot, he observed defendant lean forward as if to
  place something on the floor of the vehicle did not create a specific and
  articulable basis for suspecting that a crime was taking place.  As the
  officer readily acknowledged at the hearing on the motion to suppress,
  defendant could have been reaching down for a wide variety of reasons
  having nothing to do with criminal activity.
   
       ¶  10.  Suspicion of criminal conduct is not the only possible
  justification for a seizure, however.  State v. Campbell, 173 Vt. 575,
  575-76, 789 A.2d 926, 927-28 (2001) (mem.).  "A seizure does not require
  suspicion of criminal conduct where police officers are acting under the
  community caretaking doctrine" to assist persons in distress and to
  maintain public safety.  Id. at 576, 789 A.2d  at 928.  "A police officer
  acting under the community caretaking doctrine must have 'specific and
  articulable facts' that led him to reasonably believe the defendant was in
  need of assistance."  Id. (quoting State v. Marcello, 157 Vt. 657, 658, 599 A.2d 357, 358 (1991) (mem.)).  Here, the officer testified that it was his
  practice to make sure everything is okay when he encounters a male and a
  female in a remote location at night.  We conclude that the officer's
  practice cannot substitute for specific and articulable facts supporting
  the seizure.  Compare Burgess, 163 Vt. at 262, 657 A.2d  at 204 (seizure not
  justified by car being parked in designated rest area on cold winter night)
  with Campbell, 173 Vt. at 576, 789 A.2d  at 928 (seizure justified by
  defendant flashing lights at passing officer from car parked off side of
  road on stormy night) and Marcello, 157 Vt. at 658, 599 A.2d  at 358
  (seizure justified by excited utterance of passing motorist informing
  officer that defendant needed assistance).  The evidence did not suggest
  that the area in which the encounter occurred was so remote as to create a
  reasonable belief that one or both of the people in the car might have been
  in danger.  Indeed, a second officer who arrived at the scene testified at
  the motions hearing that the trailhead parking lot was about one-quarter of
  a mile from the state highway, that the police routinely checked the lot on
  patrol, and that the lot was "frequented by people who do various things
  from just parking to whatever else in the privacy of the area."  No
  evidence suggested that either person in the car was in any sort of trouble
  when the officer arrived on the scene.

       ¶  11.  In short, there was a seizure in this case, and the seizure
  was not justified by suspicion of criminal wrongdoing or community
  caretaking.  Accordingly, the district court erred by not granting
  defendant's motion to suppress.

       Reversed and remanded.


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                                 Dissenting


       ¶  12.  DOOLEY, J., dissenting.   As Professor Wayne LaFave has
  accurately observed: "if the ultimate issue is perceived as whether the
  suspect 'would feel free to walk away,' then virtually all police-citizens
  encounters must in fact be deemed to involve a Fourth Amendment seizure." 
  4 W. LaFave, Search and Seizure § 9.3(a), at 99 (3d ed. 1996) (quoting
  State v. Evans, 517 P.2d 1225, 1229 (Or. Ct. App. 1974).   In continuing
  down the line of labeling less and less intrusive interactions as seizures,
  the majority has literally applied the wording of the Fourth Amendment
  test, but not its content as it has evolved in decisions from the United
  States Supreme Court and other courts.  As a result, it has ignored
  Professor LaFave's characterization of its policy and removed from law
  enforcement desirable options to protect vulnerable citizens.  For this
  reason, I dissent.
        
       ¶  13.  I think that the correct line between appropriate
  police-citizen interaction and a police seizure of a citizen can be found
  in two opinions of the United States Supreme Court, Florida v. Bostick, 501 U.S. 429 (1991) and United States v. Drayton, 536 U.S. 194 (2002), and that
  line would require us to affirm the decision of the trial court in this
  case.  Both Bostick and Drayton involve police encounters with bus
  passengers under programs in which law enforcement officials board busses
  during scheduled depot stops and interrogate passengers and request to
  search their luggage for drugs.  In Bostick, a passenger on whom the
  officers found drugs challenged the practice, and the Florida Supreme Court
  found the practice per se unconstitutional because the passengers were not
  realistically free to leave the bus to avoid the questioning and searches. 
  501 U.S.  at 433.  In an argument comparable to that made here "Bostick
  insist[ed] that this case is different because it took place in the cramped
  confines of a bus.  A police encounter is much more intimidating in this
  setting, because police tower over a seated passenger and there is little
  room to move around."  Id. at 435.  The Supreme Court disagreed noting that
  the passengers were not free to leave because they were on a bus that was
  departing from the depot, and not because of law enforcement coercion.  Id.
  at 436-37.  Thus, the test was whether the passengers were free to decline
  the request to search "or otherwise terminate the encounter."  Id.  The
  Court held the test required the Florida courts to consider all
  circumstances, including the facts that the officers did not use their
  firearms and they specifically advised each passenger that consent to
  search was voluntary, and remanded for that purpose.  Id. at 437-38.

       ¶  14.  Drayton involved almost the same facts except that the
  officer did not advise the passenger that consent to search was voluntary. 
  536 U.S.  at 197.  Also in Drayton, three officers were stationed on the bus
  - one at the rear, one at the entrance and the last interrogating the
  passengers but not blocking the aisle.  The officer asking questions was
  twelve to eighteen inches from the passenger.  The Supreme Court upheld the
  district court's finding that the passengers were not seized:

    The officers gave the passengers no reason to believe that they
    were required to answer the officers' questions.  When officer
    Lang approached respondents, he did not brandish a weapon or make
    any intimidating movements.  He left the aisle free so that
    respondents could exit.  He spoke to passengers one by one and in
    a polite, quiet voice.  Nothing he said would suggest to a
    reasonable person that he or she was barred from leaving the bus
    or otherwise terminating the encounter.  

                                 . . .

    There was no application of force, no intimidating movement, no
    overwhelming show of force, no brandishing of weapons, no blocking
    of exits, no threat, no command, not even an authoritative tone of
    voice.

  Id. at 203-04.

       ¶  15.  We must look at the seizure standard based on the assumption
  that the citizen who interacts with the police is innocent of criminal
  behavior.  See Bostick, 501 U.S.  at 438. We cannot base our decision on the
  natural inclination of citizens to cooperate with police requests.  See
  People v. Melton, 910 P.2d 672, 677 (Colo. 1996).
   
       ¶  16.  Of course, the criticism of Drayton and Bostick is that the
  test espoused does not match the actions of the police upheld in the
  decisions.  See generally J.  Nadler, No Need to Shout: Bus Sweeps and the
  Psychology of Coercion, 2002 Sup. Ct. Rev. 153.  Whatever the general
  language used, the decisions of the United States Supreme Court continue to
  move "away from labeling such minor restrictions on individual movement as
  seizures."  State v. Burgess, 163 Vt. 259, 263, 657 A.2d 202, 204 (1995)
  (Dooley, J., dissenting).  Drayton and Bostick give little weight to the
  kind of considerations the majority has focused on here, particularly the
  restrictions on movement, and instead focus on the factors itemized in
  United States v. Mendenhall, 446 U.S. 544, 554-55 (1980):

    Examples of circumstances that might indicate a seizure, even
    where the person did not attempt to leave, would be the
    threatening presence of several officers, the display of a weapon
    by an officer, some physical touching of the person of the
    citizen, or the use of language or tone of voice indicating that
    compliance with the officer's request might be compelled. . . . In
    the absence of some such evidence, otherwise inoffensive contact
    between a member of the public and the police cannot, as a matter
    of law, amount to a seizure of that person.

  (Citations omitted).

       ¶  17.  The majority ignores the Mendenhall factors, apparently
  seeing this case as the logical extension of Burgess, in which this Court
  held that one factor alone - an officer's use of official, flashing blue
  lights to approach a parked automobile - created a seizure because the
  lights tend "to inhibit a suspect's departure from the scene."  163 Vt. at
  261, 657 A.2d  at 203.  Burgess's departure from a weighing of all the
  factors is understandable, as many cases have held, because state law
  typically requires a motorist to remain stopped when the flashing emergency
  lights are illuminated.  See Hrezo v. State, 780 So. 2d 194, 195 (Fla. Ct.
  App. 2001); State v. Mireles, 991 P.2d 878, 880 (Id. Ct. App. 1999); State
  v. Morris, 72 P.3d 570, 577 (Kan. 2003).  There is no equivalent reason to
  ignore all the factors, particularly those outlined in Mendenhall, in this
  case and to give controlling weight to only the two factors considered by
  the majority. 

       ¶  18.  The majority also draws from the evidence its version of the
  facts and ignores the findings of the trial judge.  The court found:

    Nothing was blocking her way initially when the officer was
    standing by the car and she could have pulled behind him in
    reverse and then gone forward directly out of the lot and that she
    was not trapped in their in any fashion by where the officer's car
    was parked or by where he was standing.  So I don't conclude that
    a reasonable person would have felt that they could not get out of
    that lot if they chose to do so and if they had said "I'd rather
    not answer any questions."

  (Emphasis added).  We are bound by the trial court's finding of the
  underlying facts.  See State v. Lawrence, 2003 VT 68, at ¶¶ 8-9, 834 A.2d 10 (mem.).  By relying on some of the evidence, rather than the findings,
  the majority overstates the degree to which the freedom of movement of the
  vehicle was impeded. Although we review the trial court's conclusion de
  novo, we must do so consistent with the findings.
                                                   
       ¶  19.  The proper analysis, based on the findings made by the trial
  court, is demonstrated by two leading cases from other jurisdictions that
  analyze in some detail the circumstances where the officer's vehicle is
  parked to partially block the defendant's vehicle, what the trial court
  found occurred here.  The first is United States v. Kim, 25 F.3d 1426 (9th
  Cir. 1994) in which a DEA agent positioned his unmarked car to partially
  block a drug suspect's car containing defendant while it was parked on the
  street in front of a store.  The appeals court upheld the district court
  ruling that no seizure had occurred.  After reviewing the general law, the
  court addressed defendant's argument that the partial blocking of his car
  created a seizure:


         To be sure, where officers detain an already stationary
    suspect by hindering his future as opposed to ongoing progress,
    that they did not stop the suspect as the term is commonly
    understood does not foreclose inquiry into whether their conduct
    constitutes an investigatory stop.  However, that [the officer]
    partially blocked Kim's egress with his automobile informs but
    does not alter our conclusion that Kim was not stopped in the
    constitutional sense before his surrender of the vial setting the
    foundation for the subsequent search . . . .  The phrasing of [the
    officer's] ... request for permission to question Kim left open
    the possibility of a refusal and the positions in which DEA agents
    were posted did not entirely bar Kim's egress.

  25 F.3d  at 1431 (Citations omitted); see United States v. Bates, No.
  01-30199, 2002 WL 31119844, at *1 (9th Cir. Sept. 25, 2002); United States
  v. Summers, 268 F.3d 683, 687 (9th Cir. 2001); McCormick v. City of
  Lawrence, 253 F. Supp. 2d 1172, 1188-89 (D. Kan. 2003); United States v.
  Baldwin, No. Cr.3:97CR188(AHN),1998 WL 563851, at *3 (D. Conn. June 29,
  1994).  

       ¶  20.  The second, People v. Cascio, 932 P.2d 1381 (Colo. 1997), is
  even more relevant because it involves facts very similar to those in this
  case.  The officers in Cascio came across a van parked off an unpaved
  national forest road after dark.  They parked their vehicle to partially
  block the van and illuminated it with a spotlight.  After questioning the
  occupant, defendant, the officers found drugs.  Id. at 1383.  The Colorado
  Supreme Court discussed the general law and noted that where a vehicle is
  totally blocked the courts have found a seizure.  Id. at 1387.  It held
  that the law was different when the vehicle was partially blocked so "that
  the Cascios would have been able to leave by maneuvering their van in a
  manner akin to parallel parking." (FN2) Id.  In that case, defendant was "not
  physically restrained from departing," and the partial blocking should be
  considered only one factor to be weighed in the totality of the
  circumstances.  Id.  The court found no seizure with the following
  analysis:
   
    While this factor [the partial blocking], standing alone, is not
    controlling, the totality of the circumstances surrounding the
    encounter between the Cascios and the sheriff's deputies does not
    support a finding that the encounter was an investigatory stop
    rather than a consensual encounter.  Although there were two
    deputies present, they did not act in a threatening manner.   In
    particular, the deputies did not display their weapons, physically
    touch the Cascios, surround the Cascios, or use an intimidating
    tone of voice.   In fact, the colloquy between the parties was
    rather mild?mannered.   Deputy Rosenbaum's approach was
    non?threatening.   His greeting to the Cascios-"Hi guys.   How are
    you doing?"- was casual and friendly.   Deputy Rosenbaum testified
    that  he pulled over with the intention of "contacting" the
    Cascios.   Deputy Getskow testified that he and Deputy Rosenbaum
    "were told to investigate vehicles that were off the road, and
    that was basically for welfare checks, and so forth." Indeed, as
    we noted in People v. Chaves, 855 P.2d 852 (Colo. 1993), police
    officers have various roles and multiple tasks in addition to
    those related to criminal offenses, including some that are civil
    in nature.

  Id. at 1387-88 (Citations omitted).

       ¶  21.  In addition we note that in the numerous cases where officers
  have used lights, other than official flashing emergency lights, to
  illuminate the interior of a parked car, the courts have not given
  controlling significance to that factor.  Adams v. State, 758 S.W.2d 709,
  712 (Ark. Ct. App. 1988) (spotlight); State v. Paynter, 955 P.2d 68, 73
  (Col. 1998) (spotlight); State v. O'Neill, 62 P.3d 489, 497 (Wash. 2003)
  (spotlight and flashlight).  Indeed, Cascio, like this case, involved both
  partial blocking and a spotlight to illuminate the interior of the parked
  vehicle.

       ¶  22.  The other relevant factors in this case are all inconsistent
  with finding a seizure.  There was only one officer.  He did nothing
  threatening.  He did not bring his weapon out.  He did not touch anyone. 
  There was no evidence that he used an intimidating or threatening tone of
  voice.  He simply asked the occupants of the vehicle what they were doing. 
  Based on these factors primarily, I would hold that no seizure occurred
  here.

       ¶  23.  I agree with the majority that our precedents require that a
  seizure for community caretaking purposes be based on specific and
  articulable facts supporting the seizure and would agree normally that such
  a justification for the seizure before us cannot be upheld.  But I also
  agree that the degree of intrusion is minimal compared to the kind of risk
  that motivated the officer to inquire about the circumstances of a couple
  in a vehicle in a very remote place at 2 A.M. in the morning.  
   
       ¶  24.  As the majority continues to expand what conduct will be
  considered a seizure when a police officer approaches a stopped vehicle
  after dark, we are left with only two options: the officer will approach
  the vehicle giving no visible sign that the person doing so is a police
  officer rather than a robber or other person engaged in criminal conduct;
  or the officer will ignore the vehicle.  The first option greatly places at
  risk the safety of the officer and the occupants of the vehicle.  The
  latter eliminates the ability of the officer to protect public safety under
  circumstances that should warrant some inquiry. See State v. Walters, 934 P.2d 282, 288 (N.M. Ct. App. 1997) ("We are loathe to discourage community
  caretaker stops or make them hazardous for motorists or the police.");
  State v. Mireles, 991 P.2d  at 881-82 (same).  I cannot agree that these
  should be the only options and therefore dissent.

       ¶  25.  I am authorized to state that Justice Reiber joins in this
  dissent.




                                       BY THE COURT:
  Dissenting:


  _________________________________    ___________________________________
  John A. Dooley, Associate Justice    Jeffrey L. Amestoy, Chief Justice


  _________________________________    ______________________________________
  Paul L. Reiber, Associate Justice    Denise R. Johnson, Associate Justice


                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  The dissent complains that we have drawn from the evidence a version
  of the facts different from what the trial court found.  Our version of the
  facts is the same as that found by the trial court - the police cruiser did
  not completely block defendant's exit, but his companion would have had to
  back up and maneuver her vehicle around the cruiser to avoid the officer.

FN2.  The majority's attempt to distinguish the facts in Cascio is
  unconvincing.  The van in that case "was parked a few feet away from
  boulders," 932 P.2d, 1381, 1383 (Colo. 1997), when the police car pulled
  ten to twenty feet in back of it and shined its spotlight on the occupants. 
  In order to leave, the van had to back around the police car "in a manner
  akin to parallel parking," and then go forward.  Id. at 1387.  Based on the
  facts found by the trial court here, the driving necessary to exit from the
  trail head parking lot was similar, if not identical.  Apparently, the
  majority finds that headlights shined into a car are more intrusive than a
  spotlight shined on the occupants.  The majority calls this a subtle
  distinction.  I would call it a distinction with no relevant difference.