State v. Hollister

State v. Hollister  (95-006); 165 Vt 553; 679 A.2d 883

[Opinion Filed 22-Mar-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-006

                             OCTOBER TERM, 1995


State of Vermont                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     District Court of Vermont,
                                     }     Unit No. 1, Bennington Circuit
David L. Hollister                   }
                                     }     DOCKET NO. 669-7-94Bncr


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

       Defendant, David Hollister, was charged with possession of marijuana
  as a result of an encounter with a uniformed police officer in Bennington. 
  Defendant moved to suppress the evidence obtained during the encounter
  alleging that the encounter was an unlawful seizure.  The Bennington
  District Court agreed, and the State appeals.  We reverse and remand.

       On June 26, 1994, at approximately 8:30 p.m., a uniformed police
  officer arrived at the Bennington Free Library to clean up broken glass
  from the ignition of a cherry bomb in a telephone booth nearby.  The
  library, a known location for young people to use alcohol or drugs and to
  commit vandalism, was closed.  The officer noticed two young males, one of
  whom was defendant, then nineteen years of age, walking down the library's
  handicap access ramp.  As he testified, he "didn't know what they were
  doing . . . [but t]hey may have been [doing something illegal]."  He walked
  up the ramp, approached the youths and asked them what they were doing at
  the library.  During the conversation, he noticed the smell of alcohol on
  defendant's breath, and defendant admitted he had been drinking.  The
  officer asked defendant if he could look in defendant's knapsack. Defendant
  opened the knapsack, but it contained no alcohol or contraband.

       The officer then asked both youths "if they had anything in their
  pockets that they should not have and I asked if I could see that." 
  Defendant partially pulled out his front pocket, implying it was empty, but
  the officer notice there still was a bulge in the pocket.  He asked again
  if anything was in the pocket.  Defendant answered that he had something
  the officer might want and produced two "baggies" of marijuana and a
  marijuana pipe.  The other youth produced a "baggie" of marijuana.

       Defendant was arrested for possession of marijuana.  His motion to
  suppress the evidence, granted by the court, is now before us.

       The trial court held that defendant was seized, as that term is used
  in the Fourth Amendment to the United States Constitution, when the officer
  approached him and asked him questions.  Since the officer had no grounds
  for a seizure at that time, the court held that the seizure violated the
  Fourth Amendment and required that the evidence be suppressed.

       We cannot agree that a seizure occurred at the commencement of
  questioning.  The United States Supreme Court has addressed this question
  directly and held that "mere police

 

  questioning does not constitute a seizure."  Florida v. Bostick, 501 U.S. 429, 434 (1991).  If any seizure was present here, an issue we do not
  decide, it commenced later in time when the officer sought to search the
  knapsack and defendant's pockets.

       By the time of the seizure, however, the officer had observed alcohol
  on defendant's breath, and defendant had admitted he had been drinking and
  was a minor.  Possession of alcoholic beverages by a minor is a crime.  See
  7 V.S.A. § 657(a) (punishable by $500 fine and/or 30 days in jail).  Thus,
  the officer had reasonable and articulable suspicion that defendant had
  committed, and was continuing to commit, a crime.  Such suspicion that a
  person has committed or is about to commit a crime allows for a limited
  investigatory seizure under Terry v. Ohio, 392 U.S. 1 (1968).  See State v.
  Kettlewell, 149 Vt. 331, 334, 544 A.2d 591, 593 (1987).  During the Terry
  seizure, the officer may seek consent for a search related to the suspected
  crime.  See Florida v. Royer, 460 U.S. 491 (1983).(FN1)

       The brief encounter here, which occurred in a public place, was well
  within the limitations of a Terry stop, and, therefore, any seizure that
  occurred was not unreasonable.  We cannot agree with the trial court's
  rationale for suppressing the marijuana and pipe.

       Defendant also alleged in his motion to suppress that he did not
  voluntarily consent to the search of his pockets.  The trial court did not
  reach this issue.  We remand for consideration of whether the evidence
  should be suppressed on this alternative ground.

       Reversed and remanded.



     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice


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                                  Footnotes

FN1.  We do not accept the hair-splitting argument of the dissent that
  the officer could request to search only an area that might contain alcohol
  and only as long as the officer believed alcohol would be found.  The
  officer testified that the library, when closed, was a known location for
  youngsters to go and consume alcohol and do illegal drugs, commit acts of
  vandalism, so on and so forth.  We believe the officer could request to
  search for evidence of any related illegal activity, such as the use of
  drugs.

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                                 Dissenting


       JOHNSON, J., dissenting:  The majority criticizes the trial court for
  holding that defendant was seized "when the officer approached him and
  asked him questions."  Ante, at 1. Although I agree that the United States
  Supreme Court has held that "mere police questioning does not constitute a
  seizure," Florida v. Bostick, 501 U.S. 429, 434 (1991), I disagree with the
  majority's characterization of the trial court's decision.  The court
  stated:

       There is no question in The Court's mind that at least at the point
  when Officer Doucette asked the defendant and his companion if they had
  been drinking and if they had anything they shouldn't have had, that there
  was a seizure [and that] a reasonable person in the defendant's position at
  that time would not believe that they were free to leave.

       The court thus held that the seizure began not when the officer first
  questioned defendant and his companion about their presence at the closed
  library, but when the officer questioned the pair about illegal activity
  and sought their consent to a search.

       I believe that the trial court's conclusion is consistent with the
  Supreme Court's reasoning in Bostick.  The Bostick Court reaffirmed that
  the "crucial test" for determining whether a seizure has occurred is
  "whether, taking into account all of the circumstances surrounding the
  encounter, the police conduct would `have communicated to a reasonable
  person that he was not at liberty to ignore the police presence and go
  about his business.'"  Id. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).   The question, then, is whether a reasonable person in
  defendant's position would have felt free to ignore the officer's questions
  and simply walk away.  Id. at 434.

       The trial court applied this test and reached the correct result. 
  Several aspects of the encounter would have made a reasonable person feel
  coerced and restrained.  The uniformed officer approached the two young men
  as they walked down a ramp and stood in their path.  The officer then
  immediately started with accusatory and incriminating questions, asking the
  two men why they were at the closed library, and whether they had been
  drinking.  The officer was persistent, first asking to search defendant's
  knapsack, and then continuing to question defendant when that search
  revealed no contraband.  See State v. Quino, 840 P.2d 358, 363 (Hawaii
  1992) (holding that defendant was "seized" where officer initiated
  encounter, asked intrusive and insinuating questions, and then continued
  questioning after search of defendant's carry-on bag revealed nothing).

       Although an encounter with the police does not become a seizure merely
  because an officer asks incriminating questions, some police questioning
  techniques are coercive.  I agree with the dissenting judges in United
  States v. Little, 18 F.3d 1499 (10th Cir. 1994) that "[d]irect, focused, or
  prolonged accusatory questioning in a commanding tone of voice is likely to
  make a reasonable innocent person feel coerced and unable to terminate a
  police encounter." Id. at 1512 (Logan, J., dissenting).  In this case, the
  officer's prolonged, accusatory questioning is especially disturbing given
  defendant's youth.  Cf. United States v. Zapata, 997 F.2d 751, 759 (10th
  Cir. 1993) ("such attributes as the age, gender, education, and
  intelligence of the accused" may be relevant in determining voluntariness
  of encounter).

       I am also concerned that the officer never informed defendant that he
  was free to leave and did not have to answer any questions.  See Bostick,
  501 U.S.  at 432 ("particularly worth noting" that police informed Bostick
  that he had right to refuse consent); Little, 18 F.3d  at 1510 (Logan, J.,
  dissenting) (agent's failure to inform defendant that she had right to
  refuse consent should be important factor in determining whether seizure
  occurred).  Again, this fact does not

 

  automatically transform the encounter into a seizure.  Nonetheless, in
  light of defendant's age and the other coercive aspects of the encounter,
  the omission is telling.  By informing defendant that he did not have to
  respond or cooperate, the officer could have mitigated his show of
  authority (with the greater risk, of course, that defendant would not
  cooperate).

       The majority skips over the threshold question of whether a seizure
  occurred, instead holding that even if defendant was seized, the seizure
  was justified.  Specifically, the majority states that the officer had a
  reasonable and articulable suspicion that defendant had been and was
  continuing to commit the crime of possession of alcoholic beverages by a
  minor, 7 V.S.A. § 657(a).  I agree that, after smelling alcohol on
  defendant's breath, the officer had a reasonable and articulable suspicion
  that defendant was in possession of alcohol.  Based on that suspicion, the
  officer asked to search defendant's knapsack.  That search revealed no
  alcohol or other contraband.(FN2)  Reading the officer's testimony at the
  hearing on defendant's motion to suppress, however, I can see no connection
  between the officer's suspicion that defendant was in possession of
  alcoholic beverages, and the search of defendant's pockets.

       The officer testified that after defendant admitted that he had been
  drinking, the officer asked to look through defendant's knapsack. 
  Defendant agreed, and an inspection of the bag revealed no alcohol or
  contraband of any kind.  Only then did the officer ask defendant and his
  companion about the contents of their pockets.  Defense counsel questioned
  the officer about the basis for the second request:

       Q: [H]aving failed to discover any alcohol in his bag, you then
  proceeded to ask him did he have anything in his pocket which he shouldn't
  have, is that right?

       A: Yes.

       Q: Now, at that point when you asked him that, was there any question
  in your mind that he had committed an illegal act?  What was he doing that
  made an illegal act at the library?  Why did you think it was illegal? What
  was he doing?

       A: Based on the fact that we've had numerous vandalism complaints,
  just the Bennington Free Library is like a haven for the kids to go and
  hang out and be destructive and so on and so forth and based on the fact
  that it was I believe a Sunday night and the library was closed and they
  are coming down the handicapped access ramp which leads directly to the
  library, there was some concern that I had that they may have been involved
  in something illegal.

       Q: Okay, but you didn't articulate what the illegality was in your
  affidavit, did you?  What specifically were they doing that you thought was
  illegal?

       A: I didn't know what they were doing, that's the reason why I stopped
  them. 

 

       Q: Okay, you didn't know what they were doing, but is it your
  statement or your testimony today that you suspected they were doing
  something illegal?

       A: They may have been.

       The officer's justification for his continued questioning and his
  search of defendant's pockets was not that he was still looking for
  alcohol; rather, he could point to only a vague, generalized concern of
  some possible illegality.  In fact, the majority's reasoning ignores the
  officer's further testimony that after the fruitless search of the
  knapsack, he no longer suspected that defendant possessed any alcohol:

       Q: But other than the fact that they were at a location that you
  considered a known location for use of controlled substances and drinking,
  you had no other information by which, upon which to even have some
  questions in the first place, did you?

       A: Other than the fact of conversing with Mr. Hollister and he
  admitted the fact that he had been consuming alcohol and he was not 21.

       Q: But after he said that and you looked into his bag, were you
  satisfied that he was telling you the truth?

       A: That they didn't have any alcohol, yes.

       As the officer was already satisfied that defendant did not possess
  any alcohol, his request to search defendant's pockets could not have been
  related to his suspicion of criminal activity. In fact, as the officer had
  determined that his original suspicion was unfounded, without more, the
  officer was not justified in continuing the limited investigatory seizure
  of defendant.  See Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality
  opinion) (where seizure permitted on less than probable cause because of
  legitimate law enforcement interests, scope of detention must be carefully
  tailored to underlying justification).  The illegality of the continued
  seizure taints defendant's consent to the search of his pockets, if indeed
  he consented at all.  See id. at 502-03 (where police action exceeded
  bounds of permissible Terry stop, defendant's consent to search of his
  luggage was tainted by illegality).

       The majority characterizes this argument as "hair-splitting."  Ante,
  at 2 n*.  Although a colorful response, it does not explain why the
  majority glosses over the second part of the Terry inquiry.  After
  determining that an investigatory stop was based on reasonable suspicion,
  "the next inquiry is whether its scope and duration are reasonable.  The
  investigation must be as minimally intrusive as possible, bearing in mind
  the circumstances that gave rise to the suspicion."  United States v.
  Tehrani, 49 F.3d 54, 58 (2d Cir. 1995).  The officer's continued
  questioning and search of defendant's pockets after he determined that his
  suspicion was unfounded fails this test.  The majority's statement that
  "the officer could request to search for evidence of any related illegal
  activity," ante, at 2 n.1, ignores the settled principle that a limited
  investigatory stop must be "carefully tailored," Royer, 460 U.S.  at 500,
  and as "minimally intrusive as possible."  Tehrani, 49 F.3d  at 58.

       Finally, even if I accepted the majority's conclusion that the
  officer's seizure of defendant was premised on reasonable suspicion, I can
  see no reason to remand the case to determine whether or not the search of
  defendant's pockets was consensual.  All of the coercive aspects of this
  encounter that made it a seizure lead as well to the conclusion that
  defendant did not

 

  consent to the search.  Again, the officer did not tell defendant that he
  could refuse to consent. Moreover, when defendant at first pulled his
  pocket out only part of the way, the officer "asked him a second time what
  was in his pocket because there was still a bulge there in the pocket."
  Only after the officer continued to pressure him did defendant produce the
  marijuana.  Under these circumstances, it is clear that defendant felt he
  had no choice but to comply.

       I would affirm the trial court's decision suppressing the marijuana
  and pipe.



                              _______________________________________
                              Denise R. Johnson, Associate Justice



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                                  Footnotes

FN2.  Although the issue was not raised here, some commentators have
  argued that the Terry rule permitting investigatory stops based only on
  reasonable suspicion should be limited to investigations of serious
  offenses.  See 4 W. LaFave, Search and Seizure § 9.2 (c), at 28-32 (3d ed.
  1996); Williams v. Adams, 436 F.2d 30, 38 (2d Cir. 1970) (Friendly, J.,
  dissenting), aff'd, 407 U.S. 143 (1972) ("I have the gravest hesitancy in
  extending Terry to crimes like the possession of narcotics . . . .").