State v. Davis

State v. Davis (2006-058)

2007 VT 71

[Filed 25-Jul-2007]

                                 ENTRY ORDER

                                 2007 VT 71

                      SUPREME COURT DOCKET NO. 2006-058

                             JANUARY TERM, 2007


  State of Vermont                    }          APPEALED FROM:
                                      }
                                      }
       v.                             }          District Court of Vermont,
                                      }          Unit No. 2, Chitteden Circuit
  Kelly Davis                         }
                                      }          DOCKET NO. 87-1-05 Cncr

                                                 Trial Judge: Edward J. Cashman

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


       ¶  1.  The State appeals from a district court order suppressing all
  evidence gathered as a result of a traffic stop and dismissing the
  information for driving under the influence of intoxicating liquor (DUI),
  third offense.  We affirm.  

       ¶  2.  In January of 2005, the State charged defendant with DUI,
  third offense.  23 V.S.A. § 1201(a)(2).  Defendant filed a motion to
  suppress and dismiss, averring that the stop was unlawful and that she was
  refused permission to contact a lawyer while being questioned on the
  roadside.   

       ¶  3.  At the hearing on the motions  the arresting officer
  testified that at approximately 1:58 a.m. on December 25, 2004, the officer
  was on mobile patrol.  He entered Interstate 89 at Exit 14 in South
  Burlington and, while traveling north, observed defendant's vehicle in
  front of him proceeding in the same direction.  When he caught up to
  defendant's vehicle he observed the vehicle contact the center line and
  then glide onto the right-hand fog line on at least two occasions.  The
  officer then activated his cruiser's mobile video-recording system to
  record defendant's vehicle.  He then observed the vehicle move from the fog
  line to the center line additional times.  The officer activated his blue
  lights, but defendant did not respond to the signal.  He gave a couple
  blasts of the siren, but still, defendant did not stop.  The officer then
  activated his siren and left it on, and defendant stopped her vehicle. 
  Less than a minute passed from the time the officer attempted to stop the
  vehicle until it actually stopped.  What happened after the officer stopped
  the vehicle is not relevant to this appeal, which focuses solely on whether
  the stop was justified. 
   
       ¶  4.  After listening to the officer's testimony and watching the
  video recorded by the mobile video-recording system, the trial court
  concluded that the officer did not have a reasonable articulable suspicion
  that a crime was being committed to justify the stop.  Therefore, it
  suppressed the evidence and dismissed the charges.  The State appeals. 

       ¶  5.  A motion to suppress presents a mixed question of law and
  fact.  State v. Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280. 
  In reviewing a trial court's decision on a motion to suppress, the court's
  findings of fact must be upheld unless they are clearly erroneous.  Id. 
  "The question of whether the facts as found met the proper standard to
  justify the stop is one of law."  Id.  

       ¶  6.  The State contends that the trial court erred because it
  substituted its judgment for that of the police officer when it reviewed
  the video.  The State bases this challenge on two sentences in the trial
  court's order.  The court wrote that it could not "find any deviation of
  driving prior to the stop that would justify [reasonable] suspicion.  The
  car does move laterally with[in] its lane but under expected circumstances
  under the conditions shown."  Despite the court's mention of the officer's
  testimony at the hearing, the State contends that the court disregarded the
  officer's testimony, and based its order solely on the video.  

       ¶  7.  "A police officer is authorized to make an investigatory stop
  based on a reasonable and articulable suspicion of criminal activity,"
  Simoneau, 2003 VT 83, ¶ 14, or of a traffic violation.  State v. Theetge,
  171 Vt. 167, 170, 759 A.2d 496, 498 (2000).  "The officer must have more
  than an unparticularized suspicion or hunch of criminal activity, but needs
  considerably less than proof of wrongdoing by a preponderance of the
  evidence."  Simoneau, 2003 VT 83, ¶ 14; State v. Kindle, 170 Vt. 296,
  298, 751 A.2d 757, 758 (2000).  "In determining the legality of the stop,
  courts do not attempt to divine the officer's subjective motivation for
  making the stop; rather, they consider from an objective standpoint
  whether, given all of the circumstances, the officer had a reasonable and
  articulable suspicion of wrongdoing."  State v. Lussier, 171 Vt. 19, 23-24,
  757 A.2d 1017, 1020 (2000).  The totality-of-the-circumstances standard in
  reasonable suspicion determinations, "allows officers to draw on their own
  experience and specialized training to make inferences from and deductions
  about the cumulative information available to them that 'might well elude
  an untrained person.' "  United States v. Arvisu, 534 U.S. 266, 273 (2002)
  (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).  

       ¶  8.  We recently held that so-called "intra-lane weaving" may
  create a reasonable and articulable suspicion.  State v. Pratt, 2007 VT 68,
  ¶ 9, ___Vt. ___, ___A.2d ___.  The facts in Pratt are remarkably similar,
  but there, the officer testified that "based on [his] training and
  experience," the totality of the circumstances led him to conclude that the
  defendant was likely driving while intoxicated and the trial court agreed. 
  Id. ¶ 3.  We affirmed the denial of the motion to suppress, but we
  declined to "announce a 'bright-line' rule that intra-lane weaving creates
  reasonable suspicion to stop in all cases."  Id. ¶ 8.  "Instead, we
  continue[d] to hold that reasonable suspicion must be based on the totality
  of the circumstances."  Id.  Making findings of fact remains the exclusive
  province of the trial court, and absent clear error, this Court will not
  reevaluate those facts for itself.
   
       ¶  9.  In this case, the officer testified to his observations, but
  he never stated why those observations led him to a reasonable and
  articulable suspicion that a crime was being committed.  The officer
  testified that he encountered defendant at approximately two o'clock on
  Christmas morning.  He described her vehicle touching the center line and
  gliding onto the fog line at least twice before he turned on his mobile
  video recorder, and then continuing this pattern at least two more times
  after he began to record.  However, beyond this brief description of
  defendant's driving, the officer never testified that the intra-lane
  weaving supported a suspicion that defendant might be driving while under
  the influence.  Additionally, the officer never testified that in his
  opinion, and based on his training and experience, when defendant touched
  the fog line, she committed a traffic violation sufficient to justify the
  stop.  See Lussier, 171 Vt. at 34, 757 A.2d  at 1027 ("[P]olice may stop a
  vehicle and briefly detain its occupants to investigate a reasonable and
  articulable suspicion that a motor vehicle violation is taking place."). 
  The trial court did not abuse its factfinding authority when it weighed the
  officer's testimony against the video of the stop.  In finding that the
  evidence before it did not justify the stop, it committed no error.

       Affirmed.


                                       BY THE COURT:



                                       _________________________________________
                                       Paul L. Reiber, Chief Justice

                                       _________________________________________
                                       John A. Dooley, Associate Justice

                                       _________________________________________
                                       Denise R. Johnson, Associate Justice

                                       _________________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _________________________________________
                                       James L. Morse, Associate Justice, 
                                       Specially Assigned