State v. Marcello

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-125

                              JUNE TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 3, Orange Circuit
                                  }
Richard Marcello                  }
                                  }          DOCKET NO. 452-10-89 OeCr


    In the above entitled cause the Clerk will enter:

     Defendant appeals the denial of his motion to suppress evidence under
the Fourth Amendment to the United States Constitution, and Chapter l,
Article 11, of the Vermont Constitution, contending that a state trooper did
not have reasonable suspicion to justify stopping defendant's vehicle.  The
trial court held that the trooper had probable cause to stop defendant.  We
disagree and hold that the trooper lacked probable cause or reasonable sus-
picion of criminal activity; however, the stop was justified on other
grounds.  Therefore, we affirm the trial court's denial of defendant's
motion to suppress.

     On October 16, 1989, a motorist driving north on Interstate 89 told a
state trooper driving in the same direction, to stop defendant's car,
because "[t]here's something wrong with that man."  The trooper stopped both
motorists based on this information.  The trooper later arrested defendant
for violating 23 V.S.A. { 1201(a)(2), which prohibits operating a motor
vehicle while under the influence of intoxicating liquor, after observing
obvious signs of intoxication.  Defendant entered a conditional guilty plea,
reserving the right to appeal the denial of his motion to suppress the
fruits of the stop.  See V.R.Cr.P. 11.

     Generally, the Fourth Amendment to the United States Constitution and
Chapter l, Article 11, of the Vermont Constitution require that police
officers have reasonable and articulable suspicion that someone is engaged
in criminal activity, or is violating a motor vehicle law, before conducting
an investigatory stop.  Brown v. Texas, 443 U.S. 47, 51 (1978); Terry v.
Ohio, 392 U.S. 1, 21 (1967); State v. Siergiey, 155 Vt. 78, 80-81, 582 A.2d 119, 120-21 (1990); State v. Emilo, 144 Vt. 477, 481, 479 A.2d 169, l7l
(1984).  Here, the trooper had no reasonable and articulable suspicion that
defendant was committing a crime because she did not see him engage in any
unusual behavior, or violate any motor vehicle law.  Therefore, the trial
court's ruling that the trooper had probable cause to stop defendant was
clearly erroneous.

     In some circumstances, however, police officers without reasonable
suspicion of criminal activity are allowed to intrude on a person's privacy
to carry out "community caretaking" functions to enhance public safety.
Cady v. Dombrowski, 413 U.S. 433, 441 (1973).  See also Crauthers v. State,
727 P.2d 9, 10-11 (Alaska 1986) (requests for assistance from the public
fall within a law enforcement officer's "community caretaking function").
The key to such constitutionally permissible police action is reasonable-
ness.  Stopping defendant's vehicle was a reasonable police response in
these circumstances because the police have an essential role as public
servants to "assist those in distress and to maintain and foster public
safety."  State v. Pinkham, 565 A.2d 318, 319 (Me. 1989).

     In addition, reasonable and articulable suspicion does not always
involve suspicion of criminal activity and safety reasons alone can be
sufficient to justify a stop, but they must be based upon specific and
articulable facts.  Id.  Here, the trooper had specific and articulable
facts, namely a passing driver's "excited utterance" that another driver
needed help.  Under the circumstances, the information was sufficiently
reliable to permit the trooper to make a public interest stop.  The trooper
did not know the nature of defendant's problem, which could have involved
serious illness or physical injury.  The most reasonable course of action
under these circumstances was to immediately stop the vehicles to determine
if assistance was needed.

     Affirmed.




                        BY THE COURT:



                                 Frederic W. Allen, Chief Justice


                                 Ernest W. Gibson III, Associate Justice


[ ]  Publish                     John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                 James L. Morse, Associate Justice


                                 Denise R. Johnson, Associate Justice