State v. Burgess
Annotate this Case
STATE_V_BURGESS.93-448; 163 Vt 259; 657 A.2d 202
[Filed 27-Jan-1995]
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, 109 State Street, Montpelier, Vermont 05609-0801 of any
errors in order that corrections may be made before this opinion goes to
press.
No. 93-448
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Rutland Circuit
Robert J. Burgess September Term, 1994
Francis B. McCaffrey, J.
Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for
plaintiff-appellant
John H. Bloomer and John H. Bloomer, Jr., of Bloomer & Bloomer, P.C.,
Rutland, for defendant-appellee
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
MORSE, J. The State appeals from an order of the Rutland District
Court granting defendant's motion to suppress evidence that defendant was
operating a motor vehicle while intoxicated, 23 V.S.A. 1201. We affirm.
The essential facts are not in dispute. On the afternoon of December 7,
1992, a police officer travelling south on a road in Proctor observed a
vehicle in a lawful pull-off area on the west side of the road, facing north.
Driving by, the officer noticed that the vehicle had its engine running and
its parking lights on. The officer turned his cruiser around and pulled up
behind the parked vehicle, activating his blue lights. He had no indication
that anything was wrong or any information about the vehicle before stopping.
The officer approached the driver's side of the vehicle and observed
defendant behind the wheel and a passenger in the next seat. The officer
asked the defendant whether he was having problems. Defendant replied that
there were none and that he had only stopped "to relieve himself." At that
point the officer made observations leading to DUI processing.
Defendant moved to suppress the evidence obtained by the officer on the
ground that the officer lacked probable cause for the initial stop. The
court found that there was no evidence that defendant was either violating a
traffic law or committing a crime. The court then noted our decision in
State v. Marcello, 157 Vt. 657, 658, 599 A.2d 357, 358 (1991) (mem.), holding
that in some circumstances a police officer may intrude on privacy to carry
out "community caretaking" functions, but concluding that the facts of this
case did not fall within the Marcello exception:
While clearly the level of proof to justify the inquiry and intrusion is
slight, there must be some reasonable basis on which to make the inquiry.
Without such a requirement, an officer would be free, under the community
caretaking function, to inquire of any stopped/parked vehicle the nature and
circumstances of the stop. Such intrusions, without specific and articulable
facts to justify them, are clearly outside the scope of the community
caretaking exception set forth in Marcello.
The State's appeal focuses principally on the argument that no stop occurred,
and that there was no need for a "reasonable and articulable suspicion" of
wrongdoing.
I.
The question before the Court is whether the conduct of the police in
displaying blue lights after pulling in behind defendant's stopped vehicle
constituted a stop, and we hold that it did. A "stop" is shorthand way of
referring to a seizure that is more limited in scope and
duration than an arrest. 3 W. LaFave, Search and Seizure 9.1(c) at 340,
9.2(d) at 363 (2d ed. 1987). Consequently, police need not force or signal a
vehicle to the side of the road to effect a stop of persons in the vehicle.
See Adams v. Williams, 407 U.S. 143, 145-48 (1972) (treating officer's
approach of voluntarily parked vehicle and tap on window as forcible stop).
While "`the mere approaching and questioning of a person seated in a parked
vehicle does not constitute a seizure,'" State v. Sutphin, 159 Vt. 9, 12, 614 A.2d 792, 794 (1992) (Dooley, J., concurring) (quoting People v. Murray, 560 N.E.2d 309, 313 (Ill. 1990)), activity which inhibits a person's freedom of
movement does. Id. at 14, 614 A.2d at 795. 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. See, e.g., Wibben v. North Dakota
State Highway Comm'r, 413 N.W.2d 329, 330, 331 (N.D. 1987) (approaching
parked car and tapping on window with flashlight was seizure under Fourth
Amendment); State v. Walp, 672 P.2d 374, 375 (Or. Ct. App. 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 test for stop is identical to test under Fourth Amendment); State v.
Stroud, 634 P.2d 316, 318 (Wash. Ct. App. 1981) (Fourth Amendment seizure
occurred when officers pulled up behind parked vehicle and activated lights).
While flashing blue lights do not always constitute a show of authority, the
evidence in this case, viewed objectively, supports the conclusion that the
use of lights served as a show of authority that tended to inhibit a person's
departure from the scene. The officer may have subjectively intended to
activate his blue lights solely "for the safety of other vehicles on the
road," as the court found, but the litmus test is the objective belief of a
reasonable person in the position of
the defendant. California v. Hodari D., 499 U.S. 621, 628 (1991). This is
not a case where one would feel free to leave; defendant's vehicle was the
sole subject of the officer's use of the flashing blue lights.
II.
Secondly, the State argues that the court erred in failing to apply the
"community caretaking" exception set forth in Marcello. An example of the
proper application of the community-caretaking function can be found in State
v. Merritt, 149 Vt. 529, 530, 546 A.2d 791, 791 (1988). In Merritt, a police
officer approached a car parked in a rest area after observing the driver
slumped over the steering wheel. The officer rapped on the window, but was
unable to awaken the driver. Id. Although unsure why the driver was slumped
over the wheel, the officer had reason to believe the driver was in need of
assistance. This case is quite different because there were no specific
articulable facts justifying the intrusion. The court specifically found
that defendant's vehicle was lawfully parked in a pull-off on the side of the
road with its parking lights on. There was nothing in the manner in which
the vehicle was parked to indicate that defendant was in any type of
distress. There were no indications of illness, or that the car was
disabled; in fact, the car was running when the officer passed by. There was
no evidence that an accident had occurred.
The court was correct that without "some reasonable basis on which to
make the inquiry," the Marcello exception would devour the requirement of
reasonable articulable suspicion. The night may have been cold and the
vehicle not in a designated rest area, as the State argues. But absent from
the State's analysis is any objective indication that caretaking was
required. Winters are traditionally long in Vermont, and we cannot adhere to
a theory that essentially renders
Fourth Amendment protections seasonal.
Affirmed.
FOR THE COURT:
____________________________
Associate Justice
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Dissenting
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, 109 State Street, Montpelier, Vermont 05609-0801 of any
errors in order that corrections may be made before this opinion goes to
press.
No. 93-448
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Rutland Circuit
Robert J. Burgess September Term, 1994
Francis B. McCaffrey, J.
Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for
plaintiff-appellant
John H. Bloomer and John H. Bloomer, Jr., of Bloomer & Bloomer, P.C.,
Rutland, for defendant-appellee
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
DOOLEY, J., dissenting. This case is factually indistinguishable from
State v. Sutphin, 159 Vt. 9, 614 A.2d 792 (1992), where, in a concurring
opinion, I stated my view that no seizure had occurred. Id. at 13, 614 A.2d
at 794. Nothing in the interim has changed my opinion, and accordingly, I
dissent from Parts I and II of the majority opinion.
I.
A major part of my disagreement with the majority is in its holding that
use of flashing blue lights creates a seizure even though the vehicle was not
stopped by the police officer. It reaches this conclusion, in part, by
warring with the facts found by the district court. As in Sutphin, the
incident in question occurred after dark, in this case during a cold night in
the winter. The district court found that the blue lights were activated
"for the safety of other vehicles on the road." While recognizing this
finding, the majority states to the contrary that "defendant's vehicle was
the sole subject of the officer's use of the flashing blue lights." The main
subject of the flashing lights was other motorists on the road who would come
upon the two vehicles and needed to be warned to pass carefully. If the
officer had activated blue lights in an area like an interstate highway rest
area, the majority's view would have some validity.
Second, the majority's conclusion that a "stop" occurred in this case is
clearly inconsistent with any common sense definition of that term. I
understand our difference on whether a seizure has occurred, but the
majority's argument is not improved by labeling as a "stop" conduct that
cannot be so characterized.
As I explained in my concurrence in Sutphin, I believe the decisions of
the United States Supreme Court are moving away from labeling such minor
restrictions on individual movement as seizures. To the extent the
precedents relied upon by the majority support its position, they are
outdated and not in accord with more recent analysis. A far more relevant
precedent is State v. Hanson, 504 N.W.2d 219 (Minn. 1993), based on facts
identical to those in this case.
In reversing the Court of Appeals and finding no seizure, the Minnesota
Supreme Court reasoned:
The problem with the court of appeals' decision is that it in
effect says that whenever an officer turns on the squad car's
flashing red lights before getting out and approaching an already
stopped car, the officer turns the encounter into a seizure. It may
be that in many fact situations the officer's use of the flashing
lights likely would signal to a reasonable person that the officer is
attempting to seize the person for investigative purposes. In this
case, however, under all the facts, the officer's conduct would not
have communicated to a reasonable person in these physical
circumstances that the officer was attempting to seize the person.
A reasonable person would have assumed that the officer was not
doing anything other than checking to see what was going on and
to offer help if needed. A reasonable person in such a situation
would not be surprised at the use of the flashing lights. It was
dark out and the cars were on the shoulder of the highway far
from any town. A reasonable person would know that while
flashing lights may be used as a show of authority, they also serve
other purposes, including warning oncoming motorists in such a
situation to be careful.
Id. at 220 (emphasis in original). I believe that the Hanson analysis is the
more appropriate way to analyze the facts of this case.
II.
Second, I agree with the State that if there was a seizure here, it was
not unreasonable and thus there was no violation of the Fourth Amendment to
the United States Constitution or Chapter I, Article 11 of the Vermont
Constitution. See State v. Record, 150 Vt. 84, 85, 548 A.2d 422, 423 (1988)
(provisions in United States and Vermont Constitutions prohibit only
"unreasonable" searches and seizures). As we pointed out in State v.
Marcello, 157 Vt. 657, 658, 599 A.2d 357, 358 (1991) (mem.), "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." We emphasized that "[t]he key to such constitutionally
permissible police action is reasonableness." Id.
The Virginia Court of Appeals recently applied the community caretaking
function to a situation very similar to that here except that by the time the
officer activated his flashing lights, the defendant's vehicle had already
begun to leave the side of the road. Barrett v. Commonwealth, 447 S.E.2d 243
(Va. Ct. App. 1994). Recognizing that because defendant's vehicle was in
motion, a stop had occurred, the court found the officer's action justified
by the community caretaking function. Id. at 246. It held that this
function was involved when the officer has reasonable and articulable
suspicion, based on observed facts, that the operator "is in distress or in
need of assistance." Id. This suspicion was created by the presence of the
vehicle off the shoulder of the road in the nighttime, circumstances
consistent with "a situation of mechanical breakdown or personal distress."
Id. The court concluded that society expects a helping hand from police
officers in such a situation.
A determination of reasonableness involves a balancing of the level of
intrusiveness on privacy against the state's interest in the intrusion and
the degree to which the intrusion justifies that interest. See Michigan
Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990) (DUI
roadblocks). The United States Supreme Court has characterized the degree of
intrusion involved in DUI roadblocks as "slight." Id. at 451. The intrusion
here is lesser still.
I explained in Sutphin that I believe that the officer's actions are
exactly what we want to encourage to protect the safety of the community,
other operators on the road, and the persons in the parked vehicle. Even if
the officer's actions are motivated by the desire to find impaired drivers,
we have found that interest weighty, State v. Record, 150 Vt. at 89-90, 548 A.2d at 426, and the conduct here is no less efficient than roadblocks in
advancing that interest. I am at a loss to understand how we can uphold
roadblocks and find the conduct here unreasonable.
The majority gives short shrift to the claim of reasonableness because
the officer's thought process involved the fact that it was a cold winter
night and defendant was not in a rest area, stating these considerations
would make "Fourth Amendment protections seasonal." This analysis ignores
that the over-arching standard is reasonableness. If something were
physically wrong with the occupants of a stopped vehicle, the consequences
are far more serious in the winter than in the summer. I see nothing
unreasonable in the officer taking into account that risk in deciding whether
to inquire of the occupants of the vehicle.
The majority's conclusions will require police to abandon important
community protection activities or to conduct them in a way that is more
dangerous to the public and the individuals whose privacy the majority seeks
to protect. Neither result is commanded or justified by the Fourth Amendment
or Article 11. Accordingly, I dissent.
_______________________________________
Associate Justice
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