State v. Lamb

Annotate this Case

State v. Lamb (96-252); 168 Vt. 194; 720 A.2d 1101

[Filed 31-Jul-1998]

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. 96-252

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Rutland Circuit

Lawrence V. Lamb September Term, 1997

Francis B. McCaffrey, J.

James P. Mongeon, Rutland County State's Attorney, and Lamar Enzor,
Deputy State's Attorney, Rutland, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate
Attorney, Montpelier, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

MORSE, J. Defendant Lawrence Lamb appeals his conviction of
operating a vehicle while under the influence of intoxicating liquor. 23
V.S.A. § 1201(a)(2). He contends that the trial court erred by: (1)
denying his motion to suppress evidence derived from an investigatory stop
of his vehicle based upon information supplied by an unnamed informant; and
(2) admitting the results of a Datamaster infrared breath test. We affirm.

The essential question before the Court is whether, considered in
their totality, the circumstances justified a brief investigatory stop
based in part upon an unnamed informant's tip that defendant was driving
while intoxicated. We conclude that the detention was amply justified
because (a) the investigating officer had corroborating information that
could only have come from a knowledgeable insider, (b) the officer knew
that defendant had been arrested previously for DUI, and (c) the offense of
DUI presented an imminent risk of injury to the suspect or the public.

Viewed in the light most favorable to the State, State v. McGee, 163
Vt. 162, 164-65, 655 A.2d 729, 732 (1995), the record discloses the
following facts. At approximately 8:20 p.m. on a snowy evening in February
1994, a Vermont State Police trooper received a radio dispatch that a woman
had called stating that defendant was very upset and intoxicated and was
leaving a residence on Vaughn Road in Poultney. The dispatcher related
that defendant was driving a large red car with a vinyl top. The trooper
was familiar with Vaughn Road and with defendant, having processed him for
DUI the previous year. When the trooper arrived at Vaughn Road
approximately twelve minutes later, he saw a vehicle that matched the
description provided by the dispatcher. The trooper recognized the driver
as defendant. He thereupon activated his blue lights and stopped the
vehicle. Prior to the stop, he had not observed defendant driving
erratically. Upon approaching the vehicle, the trooper observed that
defendant showed signs of intoxication. After failing several field
sobriety tests, defendant was arrested for DUI and transported to the State
Police barracks. A Datamaster infrared breath test administered at the
barracks showed that defendant had a blood-alcohol level of .159 percent.

Prior to trial, defendant moved to suppress all evidence obtained as a
result of the stop on the ground that the police lacked a reasonable
suspicion to believe defendant was engaged in criminal activity. See Terry
v. Ohio, 392 U.S. 1, 21-22 (1968). The trial court denied the motion,
finding that the trooper "had a reasonable and articulable suspicion, based
on the information provided by the [informant] and his own prior knowledge
of the defendant, that the defendant was operating under the influence and
was, therefore, justified in stopping defendant's vehicle to investigate
further."(FN1)

At trial, defendant conceded that he was operating a vehicle while
intoxicated, but

disputed whether he was on a "highway" within the meaning of the statute.
See 23 V.S.A. § 1201(a)(2) ("A person shall not operate . . . any vehicle
on a highway . . . when the person is under the influence of
intoxicating liquor."). A jury returned a verdict of guilty. This appeal
followed.

II.

Police officers may make an investigatory stop based upon a reasonable
suspicion that the suspect is engaged in criminal activity. See Terry, 392 U.S. at 21-22. The reasonable suspicion standard is less demanding than
probable cause for an arrest or a search warrant. As the United States
Supreme Court explained in Alabama v. White, 496 U.S. 325, 329-30 (1990),
reasonable suspicion under the Fourth Amendment requires some minimal level
of objective justification for making the stop. Reasonable suspicion,
moreover, need not be based upon the officer's personal observations. "An
informant's tip, if it carries enough indicia of reliability, may justify a
forcible stop." State v. Kettlewell, 149 Vt. 331, 335, 544 A.2d 591, 594
(1987); see also Adams v. Williams, 407 U.S. 143, 147 (1972) (Supreme Court
"reject[ed] . . . argument that reasonable cause for a stop . . . can
only be based on the officer's personal observation").

The reliability of the information provided by an informant must be
assessed in the light of the totality of the circumstances. As explained
in White, "reasonable suspicion can arise from information that is less
reliable than that required to show probable cause," so long as the
information, considered in the "totality of the circumstances," is
sufficiently corroborated to warrant the intrusion. 496 U.S. at 330. This
is an assessment "dependent upon both the content of information possessed
by [the] police and its degree of reliability." Id.

White is a case particularly on point. There, as here, law
enforcement officers stopped a vehicle based upon an anonymous tip that the
defendant was engaged in criminal activity. In White the alleged offense
was possession of cocaine. The informant stated that the defendant would
be leaving a particular apartment at a particular time in a particular
vehicle, and would drive to a particular location. The officers observed
the defendant leave the apartment within the predicted timeframe, enter a
vehicle matching the informant's description, and proceed in the

direction of the predicted location. The high court noted that although
the informant was anonymous, the information he supplied appeared to be
reasonably reliable "because it demonstrated inside information . . . .
The general public would have had no way of knowing that [defendant] would
shortly leave the building, get in the described car, and drive the
[predicted] route." Id. at 332. Thus, there was reason to believe the
caller was sufficiently "well informed . . . to justify the stop." Id.
Under these circumstances, the Court concluded, the anonymous tip had been
sufficiently corroborated to furnish reasonable suspicion of criminal
activity and justify an investigative stop. See id. at 331.

The facts here are similar to those in White. One difference is that
the officer did not actually observe defendant leave the residence and
enter the described car, since the informant's call was contemporaneous
with defendant's departure. Nevertheless, just as in White, the informant
accurately predicted that defendant would be driving in a particular
location, in a particular car, and at a particular time. Most important,
as in White the caller unmistakably supplied the police with "inside
information." Id. at 332. The call was received in the middle of the
evening. The informant stated that defendant was upset and intoxicated and
was driving away from a residence on Vaughn road, a dirt road located in a
rural area that led to several residences, dead-ended in one direction, and
intersected with Route 140 in the other. Approximately twelve minutes
later, the officer intercepted a car on Vaughn Road; the officer noted that
the car matched the vehicle described by the informant and was driven by
defendant, whom the officer recognized from a previous DUI offense.

These facts demonstrate that it would have been virtually impossible
for all but a handful of people to accurately predict that defendant would
be in his car at the particular time and place described. The general
public would have had no way of knowing that defendant was leaving a
relatively isolated rural residence, located on a dirt road, at 8:30 on a
winter evening. As the high court observed in White, "[b]ecause only a
small number of people are generally privy to an individual's itinerary, it
is reasonable for police to believe that a person with access to such
information is likely to also have access to reliable information about
that individual's illegal

activities." Id. Thus, when significant portions of information not privy
to the general public were verified by the officer here, "there was reason
to believe not only that the caller was honest but also that he was well
informed, at least well enough to justify the stop." Id. Standing alone,
these circumstances were at least as strong as those found sufficient to
justify the stop in White.

Indeed, considered in their totality, the facts here were more
compelling than those in White in at least three respects. First, while
the informant was "anonymous" in the sense that she did not specifically
disclose her name, the general identity of the caller as a personal friend
or acquaintance of defendant was plainly inferrable from her statement that
defendant had argued with a woman, was upset and intoxicated, and was
leaving a residence on Vaughn Road. The police, in effect, were responding
to a specific report of a domestic dispute at a particular location. In
terms of assessing the caller's reliability, this is far more
particularized information than could be expected from a total stranger.
See, e.g., State v. Lambert, 146 Vt. 142, 144, 499 A.2d 761, 763 (1985)
(upholding stop based upon wife's hearsay report that defendant might be
driving while intoxicated).

Although the dissent suggests that there were "discrepancies" between
the facts adduced at the suppression hearing and those presented at trial,
the only "discrepancy" noted is an ambiguity as to whether the telephone
call was made by defendant's girlfriend or the owner of the house on Vaughn
Road. There was no dispute that one of the two women made the call from
the house, that both were present in the house when was the call was made,
that defendant was intoxicated, and that defendant was about to leave in
his vehicle. Thus, the caller was plainly one of the two women in
question, and clearly demonstrated inside information about the facts.

Further, there is no indication in White that the defendant was known
to the officers. Here, in contrast, the officer was familiar with defendant
from having processed him for a prior DUI offense. In assessing the
reliability of the informant's information, the officer was entitled to
rely on his personal knowledge of defendant's prior criminal activity. See
United States v. Harris, 403 U.S. 573, 583 (1971) (officer may rely on
personal knowledge of suspect's reputation).

Finally, the circumstances here created an element of urgency that was
not present in White. The reported offense in White, possession of an
ounce of cocaine, posed no imminent threat of harm to the suspect or to the
general public requiring an immediate police response. The alleged offense
here, driving while intoxicated, presented a substantial and immediate risk
of death or serious injury to both the driver and anyone unlucky enough to
get in his way. As one court has observed: "A motor vehicle in the hands
of a drunken driver is an instrument of death. It is deadly, it threatens
the safety of the public, and that threat must be eliminated as quickly as
possible." State v. Tucker, 878 P.2d 855, 861 (Kan. Ct. App. 1994). The
potential risk of harm to the defendant and the public is widely
acknowledged to be a critical factor in assessing the reasonableness of an
investigatory stop.

As noted earlier, the existence of "[r]easonable suspicion, like
probable cause, is dependent upon both the content of information possessed
by police and its degree of reliability. Both factors -- quantity and
quality -- are considered." White, 496 U.S. at 330 (emphasis added). Thus,
it is generally recognized that "[t]he content of the tip . . . and, in
particular, the level of danger that the tip reveals" is a "crucial factor"
in "determining the reasonableness of a police response and the reliability
required of an informant's tip." State v. Pulley, 863 S.W.2d 29, 32-33
(Tenn. 1993) (emphasis added). Stated differently, "the consequences of a
police officer's failure to investigate a tip must be considered when
assessing the reasonableness of a stop." Pulley, 863 S.W.2d at 34 (emphasis
added); see also Tucker, 878 P.2d at 861 (Fourth Amendment "balancing test
must consider the risk to the public of not making an immediate stop
against the right of an individual to be free from such stops").

This principle is reflected in numerous decisions upholding the use of
brief investigatory stops based upon anonymous tips of people carrying
deadly weapons. In State v. Hasenbank, 425 A.2d 1330 (Me. 1981), for
example, the Maine Supreme Court upheld a stop pursuant to an anonymous
report of a particularly described man carrying a gun, holding that when
the police receive anonymous but "immediately verifiable information that a
specifically described individual possesses a concealed weapon," they are
justified in stopping that individual "for the

protection of the public and their own safety." Id. at 1333-34.

United States v. Bold, 19 F.3d 99 (2d Cir. 1994) is also instructive.
Although the Second Circuit Court of Appeals acknowledged that the
information provided by the anonymous informant in that case lacked the
same degree of reliability as in White, 496 U.S. 325, it nevertheless
upheld an investigatory stop, observing that

in White, the anonymous tip related to a drug deal; the tip here
related to a man with a gun. The distinction is significant and
important: "Th[e] element of imminent danger distinguishes a gun
tip from one involving possession of drugs. If there is any doubt
about the reliability of an anonymous tip in the latter case, the
police can limit their response to surveillance or engage in
`controlled buys.' Where guns are involved, however, there is the
risk that an attempt to `wait out' the suspect might have fatal
consequences."

Bold, 19 F.3d at 104 (quoting United States v. Clipper, 973 F.2d 944, 949
(D.C. Cir. 1992); see also United States v. McClinnhan, 660 F.2d 500 (D.C.
Cir. 1981) (upholding stop based upon anonymous tip of man carrying a
sawed-off shotgun); People v. Smithers, 415 N.E.2d 327, 332 (Ill. 1980)
("[T]he fact that the officers had information that the complaint they were
investigating involved a man with a gun casts a heavy weight in favor of
the reasonableness of the search. . . . We should evaluate the officer's
actions in light of one's reaction had they failed to act.").

The principle of these deadly-weapons cases -- that the gravity of the
risk of harm must be considered in evaluating the reasonableness of the
investigatory stop -- applies with equal force to intoxicated driving. In
State v. Melanson, 665 A.2d 338 (N.H. 1995), for example, the New Hampshire
Supreme Court confronted a case strikingly similar to the case at bar. An
officer received a dispatch based upon an anonymous tip that the driver of
a particular car traveling in a particular direction might be intoxicated.
The officer located and stopped the vehicle, although he did not observe
any suspicious or erratic behavior prior to activating his lights. Relying
on White, 496 U.S. at 330, the New Hampshire Supreme Court upheld the stop,
finding that the anonymous informant, who had accurately described the
vehicle's make and location, was sufficiently reliable. In this regard,
the court further noted that:

the officer faced the potential of a dangerous public safety hazard.
Unlike [State v.] Kennison, [590 A.2d 1099 (1991)], where the
police could have safely observed the defendant in order to obtain
information regarding her illegal [possession of drugs], here failure
quickly to stop the defendant's vehicle in order to confirm or dispel
the officer's suspicions could have exposed the public as well as
the defendant herself to the danger of an impaired driver. The
officer's ability to observe incriminating behavior, therefore, was
limited by the exigency of the situation.

Melanson, 665 A.2d at 340.

Another recent decision closely on point is Tucker, 878 P.2d 855.
There, as here, a patrol officer received a dispatch that an anonymous
informant had called to report that a driver in a particular pickup
traveling in a particular direction appeared to be intoxicated. The
officer located and stopped the described vehicle, although he did not
observe any erratic driving. In assessing the reasonableness of the stop,
the Kansas court observed: "We view the question of whether an anonymous
tip can provide a sufficient basis to stop a vehicle in the light of the
danger a drunken driver poses to the public." Id. at 861. The court noted
that the caller's information concerning the make and location of the car
was corroborated by the officer. Moreover, the court observed, "the risk of
ignoring the tip was that of death and destruction on the highways." Id.
at 862. In these circumstances, the court concluded that "the high degree
of danger to the public" tipped the balance in favor of the stop. Id. at
864.

To require time-consuming verification of the tip in all aspects
might well result in the death of an innocent user of our highways.
We do not believe that the Fourth Amendment requires the public
to accept such risk, and we decline to impose that risk upon the
public.

Id. See also State v. Markus, 478 N.W.2d 405, 408 (Iowa Ct. App. 1991)
(officers receiving anonymous tip of intoxicated driver did not have to
observe erratic behavior "to stop the defendant and investigate this
exigent circumstance"); People v. Rance, 644 N.Y.S.2d 447, 447 (N.Y. App.
Div. 1996) (police stop of reportedly intoxicated driver "may be based upon
information from an anonymous source where, as here, it relates to `matters
gravely affecting personal or public safety'") (quoting People v. Taggart,
283 N.Y.S.2d 1, 9 (N.Y. 1967)); Kaysville City v. Mulcahy, 943 P.2d 231,
236 (Utah Ct. App. 1997) (court upheld stop of

intoxicated driver based upon anonymous tip, noting "`that the greater and
more immediate the risk to the public revealed by the tip, the less
importance we will accord to the process of corroboration or verification
of the tip.'") (quoting Tucker, 878 P.2d at 862).

Considered in the light of these authorities, the circumstances here
were more than sufficient to justify the stop. These circumstances
included not only the trooper's rapid verification of the information
supplied by the informant, but also the virtual impossibility that such
information could have been supplied by anyone but a knowledgable insider,
the officer's personal knowledge of defendant's prior DUI arrest, and the
potential danger -- to himself as well as to others -- posed by an
intoxicated driver. Thus, we hold that the trial court correctly denied
defendant's motion to suppress.

Our holding does not signify that virtually any stop for DUI will be
upheld for any reason. Every case will continue to be scrutinized
individually for the reliability of the information received and the
reasonableness of the stop in the circumstances presented. See, e.g.,
State v. Burgess, 163 Vt. 259, 262, 657 A.2d 202, 204 (1995) (affirming
suppression of evidence that defendant was operating a vehicle while
intoxicated where officer lacked reasonable basis to detain vehicle located
in lawful pull-off area with engine running and lights on); State v. Welch,
162 Vt. 635, 636, 650 A.2d 516, 518 (1994) (mem.) (reversing conviction for
DUI where information supplied by unnamed informant failed to establish
reasonable suspicion of wrongdoing). Nor does today's decision signal an
extension of the so-called "community caretaking" doctrine, under which we
have upheld certain stops to "`assist those in distress.'" State v.
Marcello, 157 Vt. 657, 658, 599 A.2d 357, 358 (1991) (mem.) (quoting State
v. Pinkham, 565 A.2d 318, 319 (Me. 1989)). Although, as noted, public
safety should be considered in evaluating the reasonableness of an
investigatory detention for DUI, ultimately the test is whether there was
an articulable suspicion of criminal activity.

III.

Defendant also claims the trial court erred in admitting the results
of a Datamaster infrared breath test which showed defendant's blood alcohol
content. He asserts that the State

failed to establish the requisite foundational evidence for the admission
of the test result under State v. Rolfe, 166 Vt. 1, 12, 686 A.2d 949, 957
(1996).

Defendant was charged with operating a vehicle on a highway while
under the influence of intoxicating liquor. See 23 V.S.A. § 1201(a)(2).
The sole disputed issue at trial was whether defendant was on a "highway"
within the meaning of the statute. Defendant expressly stipulated at
trial, and did not contest, "that he was under the influence of alcohol as
defined by statute" and "that he was under the influence while operating
the motor vehicle in this case." Accordingly, in closing argument the
prosecutor informed the jury without objection that the first two elements
of the offense "concerning intoxication and operation are not contested by
the parties." Defense counsel further conceded during closing that
defendant was "admittedly under the influence of alcohol."

In the light of these circumstances, we are unable to perceive any
prejudice to defendant from the Datamaster results, even assuming, without
deciding, that the State failed to establish an adequate foundation for
their admission.

Affirmed.

_______________________________________
Associate Justice

-----------------------------------------------------------------------------
Footnotes

FN1. In denying a renewed motion to suppress at trial, the trial
court concluded that the stop was justified on a different basis, to wit,
the caller's report of a domestic disturbance. Contrary to a suggestion by
the dissent, however, the record reveals no conflict between the findings
of the two courts concerning the material facts underlying the stop.

------------------------------------------------------------------------------
Dissenting

No. 96-252

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Rutland Circuit

Lawrence V. Lamb September Term, 1997

Francis B. McCaffrey, J.

James P. Mongeon, Rutland County State's Attorney, and Lamar Enzor,
Deputy State's Attorney, Rutland, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate
Attorney, Montpelier, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

DOOLEY, J., dissenting. If the informant in this case had identified
herself, I would enthusiastically join the majority opinion. Although
anonymous accusations are not per se unreliable, the disclosure of the
accuser's identity shows a willingness to bear the consequences of the
accusation. See Brown v. United States, 590 A.2d 1008, 1015 (D.C. 1990);
13 V.S.A. § 1754 (knowingly making a false report to a law enforcement
officer "to implicate another" is a crime). Many persons who provide
information anonymously are public-spirited and want to prevent criminal
conduct, but are unwilling to get involved in the process of investigation
and conviction. Others may have different motives. We instinctively are
concerned about giving a central place to anonymous accusations in law
enforcement because we cannot know the motive of the accuser or judge the
accuser's reliability.

In this case, the anonymous nature of the "tip" was wholly
unnecessary, assuming the

tip was, in fact, anonymous.(FN1) The caller reported a domestic dispute and
gave her location. I doubt that she thought she could remain anonymous; the
simple request that she give her name would probably have been honored and
would have ended this dispute.

Unfortunately, the majority has used this case to stretch beyond
recognition the limits necessarily imposed to ensure the reliability of
anonymous tips and reduced any incentive for law enforcement to obtain the
name of tipsters. As a result, this case proves that the danger predicted
by Justice Steven's dissent in Alabama v. White, 496 U.S. 325, 333 (1990)
is real: "Anybody with enough knowledge about a given person to make her the
target of a prank, or to harbor a grudge against her, will certainly be
able to formulate a tip about her" like the one present here. I do not
believe that the curtailment of the personal liberty of innocent Vermonters
that will result from today's decision is justified by the small increase
in DUI enforcement it might produce. Accordingly, I dissent.

I agree that the critical precedent is White, 496 U.S. 325. In
describing White, however, the majority has left out the central parts of
its holding. First, the Supreme Court described the facts in White as a
"close case." Id. at 332. Second, the Court particularly relied on the
fact that the tip specified that the defendant would drive a specified
route to "Dobey's Motel," a drive that involved several turns, and the
officers stopped the vehicle just short of the motel. Thus, the Court
reasoned:

We think it also important that . . . the anonymous tip
contained a range of details relating not just to easily obtained facts
and conditions existing at the time of the tip, but to future actions
of third parties ordinarily not predicted . . . . The fact that the
officers found a car precisely matching the caller's description in

front of the 235 building is an example of the former. Anyone
could have predicted that fact because it was a condition
presumably existing at the time of the call. What was important
was the caller's ability to predict respondent's future behavior,
because it demonstrated inside information a special familiarity
with respondent's affairs. The general public would have had no
way of knowing that respondent would shortly leave the building,
get in the described car, and drive the most direct route to Dobey's
Motel. Because only a small number of people are generally privy
to an individual's itinerary, it is reasonable for police to believe
that a person with access to such information is likely to also have
access to reliable information about that individual's illegal
activities . . . . When significant aspects of the caller's
predictions were verified, there was reason to believe not only that
the caller was honest but also that he was well informed, at least
well enough to justify the stop.

Id. In summary, White was a close case where the Court was able to find
reasonable suspicion because the anonymous tip predicted future behavior,
that is, a four-mile journey to Dobey's Motel.

The majority glosses over this aspect of White, suggesting here that
the tip predicted defendant's itinerary and gave "significant portions of
information not privy to the general public." This is a gross exaggeration
of the contents of the tip in this case. The tip stated only that
defendant would get into his automobile and leave through the end of a
short dead-end street that was open. This was not a prediction because, as
the majority states, "the informant's call was contemporaneous with
defendant's departure." All the officer corroborated was that defendant
was driving out the end of the dead-end street. Indeed, when the officer
arrived twelve minutes later, defendant had gone only a few feet and
claimed to still be in the driveway.

The majority argues, however, the "prediction" takes on added
significance because defendant was in a rural area. Unless we are prepared
to say that fewer people know of their neighbors' (or enemies) affairs in a
rural area, an assumption that is probably directly contrary to reality,
this is a red herring. The fact is that there is no prediction here, and
what facts were disclosed in the tip were available to others. See, e.g.,
State v. Altieri, 951 P.2d 866, 868 (Ariz. 1997) (anonymous tip that stated
that vehicle contained drugs, gave license plate number,

and added that it could be found going in a certain direction on an
identified highway did not provide reasonable suspicion even when police
observed vehicle going by on highway); VonLinsowe v. State, 445 S.E.2d 371,
372-73 (Ga. Ct. App. 1994) (same); Johnson v. State, 659 N.E.2d 116, 119
(Ind. 1995) (tip that named individual would be found transporting drugs in
described automobile "in a particular area of town" was insufficient to
create reasonable suspicion even though officer had arrested individual for
drug possession in past and described vehicle was found where tipster
predicted it would be); Commonwealth v. Lyons, 564 N.E.2d 390, 393 (1990)
(tip that included description of vehicle, even when confirmed, is not
sufficiently predictive to provide reasonable suspicion); State v. Miller,
510 N.W.2d 638, 644-45 (N.D. 1994) (tips that give only description and
location of vehicle provide only easily obtained facts available to general
public; corroboration of this type of information does not increase
reliability of tip)

Nor am I persuaded that the fact that the officer in this case had
"processed" defendant for DUI in the past justified the stop. I agree that
in the totality of the circumstances an officer may rely on knowledge of a
suspect's prior criminal activity. See United States v. Harris, 403 U.S. 573, 583 (1971). I don t believe, however, that this factor can create
reasonable suspicion where it does not otherwise exist. See 4 W. LaFave,
Search & Seizure § 9.4(f), at 192 (3d ed. 1996) (those with prior arrests
and convictions must be allowed to live without risk of constant harassment
based on their record); cf. Parish v. State, 939 S.W.2d 201, 204 (Tex. Ct.
App. 1997) (where anonymous tip of drug selling is inadequately
corroborated, fact that defendant has a criminal record is not sufficient
to allow issuance of search warrant).

Despite the purported adherence to White, the real holding of this
case is that the corroboration deemed necessary in White is unnecessary
here because defendant was accused of driving while intoxicated. Contrary
to the majority's argument, there is no statement in White that the nature
of the crime is balanced against the reliability of the anonymous tip to
determine whether it creates reasonable suspicion. Although White was a
drug possession case,

most of the anonymous tip cases have involved drug sales. If the principle
the majority espouses is that uncorroborated anonymous tips are acceptable
if they include an allegation of on-going criminal conduct that will injure
third parties, these cases would qualify for the exception. The exception
the majority espouses is neither narrow nor containable.

In adopting this broad exception, the majority has uncritically
accepted decisions that do adopt a narrow and reasonable exception that is
not applicable here. In United States v. Bold, 19 F.3d 99, 104 (2d Cir.
1994), the court adopted its exception because reasonable law enforcement
tools to confirm the criminal conduct claimed were too dangerous to the law
enforcement personnel involved and others. See Commonwealth v. Hawkins,
692 A.2d 1068, 1071 (Pa. 1997) (noting that carrying licensed firearm is
lawful in Pennsylvania, Court rejected argument that anonymous tip was
reliable because it claimed that defendant possessed gun in course of
criminal conduct). The DUI cases generally involve situations where the
anonymous caller reports having seen dangerous driving, consistent with the
alcohol impairment of the operator, and describes the vehicle, its
location, and its direction of travel. As the Supreme Court of New
Hampshire emphasized in State v. Melanson, 665 A.2d 338, 340 (N.H. 1995),
this is a report of publicly-displayed criminal conduct, much harder to
fabricate, and suggesting that the officer could not safely observe the
defendant without threatening his own safety and that of the public.

In this case, no one saw defendant operate a vehicle unsafely; the
claim was generally that defendant was intoxicated, not that he had been
driving dangerously; and the officer arrived on the scene before defendant
had traveled more than a few feet. Thus, unlike Melanson, the information
was private, not public. Unlike Bold, there is no specific reason to
believe that the officer could not have safely followed defendant and
stopped him when he observed erratic operation, a routine law enforcement
action that has been reported scores of times in our cases. Given the BAC
level in this case, I have no doubt that defendant's driving would have
demonstrated impairment and would have established that he was guilty of
the crime, rather than

the subject of a false accusation.

It is this latter concern that makes the majority's broad rule
unacceptable to me. If the anonymous informant calls and says defendant is
carrying drugs, the police may not stop the vehicle. If the informant
calls and says that defendant is carrying drugs, while driving drunk, the
police may stop the vehicle. The dishonest informant will learn to tailor
the accusation to bring about the desired result. Exactly the consequences
feared by Justice Stevens are made easier by the majority's relaxed
standard of reliability.

Finally, I find this case an inappropriate vehicle to fashion the
broad rule on which the majority relies. As discussed infra, the theory
used by the majority is not that used by the trial court, and there are
serious consequences of the shift in theory. The trial court found the
stop valid because the caller reported a domestic disturbance. The
majority has not attempted to affirm the decision on the trial court's
theory. I do not think it can be affirmed on that theory because the tip
did not claim that the domestic dispute involved criminal conduct and it
did report that defendant had left the scene. See State v. Caron, 155 Vt.
492, 499, 586 A.2d 1127, 1131 (1990) (facts and inferences from them must
"warrant a reasonable belief that a suspect is engaging in criminal
activity").

There were serious grounds to question the reliability of the
anonymous informant in this case. She called during a domestic dispute
with defendant, suggesting the possibility of an improper motive. During
the pretrial hearing, the officer testified that he determined at the scene
that Leni Briggs was the complainant. Leni Briggs testified at trial, and
said she believed that Lila Dickinson made the call to the police. Ms.
Briggs and Ms. Dickinson were friends and lived in the same house,
apparently in separate apartments. When Ms. Dickinson testified at trial,
she was never asked whether she called the police, but testified that she
assumed defendant was waiting for his brother to drive him home.

Although the caller said defendant was leaving as she called, he was
stopped within a few feet of the house twelve minutes later. In fact, the
defense at trial was that defendant was

stopped within the private driveway of the house he was visiting, and
virtually all of the testimony went to that issue. There were inaccuracies
in the caller's description of the car.

The majority glosses over the discrepancies as unimportant because one
of the women called the police and both had access to the information. In
fact, the "ambiguity" in the testimony, as the majority calls it, points
out why reliance on anonymous tips is dangerous. Leni Briggs denied making
the call, and Lila Dickinson's testimony was inconsistent with the contents
of the call because she did not believe defendant was driving away. The
testimony does not support the majority's conclusion that one of the two
women made the call. Because no one takes responsibility for the contents
of the call, it is impossible to test its veracity.

Defendant raised the legality of the stop in a pretrial motion, as he
was required to do. The motion judge denied the motion based on the theory
that the caller reported that defendant was intoxicated and that the
officer had once processed defendant for DUI. In reaching this conclusion,
the motion judge stated "the court will take the testimony of the officer
as true in weighing the evidence at hand."

Defendant renewed his motion at trial, as he is required to do under
State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349, 351 (1985). The trial
court refused to uphold the stop on the theory adopted by the motions judge
and the majority here, holding that the complaint of a domestic dispute
justified the stop. Although there was additional evidence bearing on the
motion, the trial judge made no findings. The State has urged affirmance
here on the theory that defendant was reported to have been involved in a
domestic disturbance.

We considered a situation similar to this case in State v. Bruno, 157
Vt. 6, 595 A.2d 272 (1991) where the motions judge had found a DUI stop to
be constitutionally lawful based on one theory, with supporting findings,
and the trial judge found it lawful based on a different theory, supported
by new findings inconsistent with those of the motions judge. We held that
the action of the trial judge controlled and found this judge's rationale
to be valid. See id. at 9-11, 595 A.2d at 274-75. Justice Morse
dissented, in part, because he believed there were no real

findings supporting the trial judge's decision. See id. at 13, 595 A.2d at
276.

While I disagreed with Justice Morse that there were inadequate trial
judge findings in Bruno, I do not disagree that adequate findings are
required. The trial judge decided to reconsider the pretrial motion
decision, and there were discrepancies between the motion evidence and the
trial evidence. The State's theory was that Leni Briggs made the anonymous
complaint, and that she and defendant had had the argument. The motions
judge found that the caller reported that she and defendant had had an
argument. Leni Briggs testified that she did not make the call. The
evidence suggests that the content of the call may have been different from
that found by the motions judge, and the basis of the caller's knowledge
was weaker. Because the trial judge adopted a different theory to determine
the motion, there are no findings based on the full evidence before the
court. At a minimum, we should remand for findings. It may be that the
court will disbelieve Leni Briggs, or it will affirm the content of the tip
as found by the motions judge, despite the fact that the caller was not the
person in a domestic dispute with defendant. That determination should be
made by the trial court in the first instance.

With the current emphasis on increasing DUI enforcement, an emphasis
with which I agree, it is tempting to relax the standards police must
follow to make vehicle stops based on suspicion that the operator is
impaired. Where the information behind a stop comes from an anonymous tip
and there is no significant, independent observation that the tip is
reliable or that the person to be stopped is operating illegally, I would
resist this temptation. We are greatly increasing the likelihood that
dishonest tips will be effective with little improvement in DUI
enforcement.

I would reverse. I am authorized to state that Justice Johnson joins
in this dissent.

_______________________________________
Associate Justice

-----------------------------------------------------------------------------
Footnotes

FN1. The findings of the motions judge indicate that she believed
that the caller gave her name, but the prosecution failed to offer any
evidence of this. The State had the burden of production at the
suppression hearing and later at the trial. See United States v. Longmire,
761 F.2d 411, 417 (7th Cir. 1985); 5 W. LaFave, Search & Seizure § 11.2(b),
at 38 (3d ed. 1996). In the absence of evidence on the point, we must
assume that the tip was anonymous. I can t help believe, however, that this
case is before us because the State never obtained evidence from the
dispatcher who could have provided more information on the tip.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.