State v. Kindle

Annotate this Case

State v. Kindle (99-041); 170 Vt. 297; 751 A.2d 757

[Filed 14-Jan-2000]

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. 99-041

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont
Unit No. 2, Chittenden Circuit

Eric J. Kindle September Term, 1999

Amy M. Davenport, J.

Lauren Bowerman, Chittenden County State's Attorney, and John R.
Treadwell, Deputy State's Attorney, Burlington, for Plaintiff-Appellant.

Robert Andres and James Karns, Law Clerk (On the Brief), Burlington,
for Defendant-Appellee.

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

MORSE, J. The State appeals from the district court's decision
suppressing evidence of defendant Eric Kindle's driving while intoxicated
obtained from a motor-vehicle stop. The only issue on appeal is whether
the observance of a red beam of light emanating from a passing car
justified an investigatory motor-vehicle stop. We hold that it does and,
therefore, reverse.

Defendant was charged with operating a motor vehicle while under the
influence of an intoxicating liquor in violation of 23 V.S.A. §
1201(a)(2). The court granted defendant's motion to suppress based on the
following facts.

At approximately 2:10 a.m. on August 21, 1998, two Burlington police
officers were stopped at a red light at the intersection of East and
Colchester Avenues. While awaiting the light change, a vehicle operated
by defendant passed through the intersection from the officers' left to
right. As the car traveled in front of the officers, they observed a
steady red beam of light pass across the windshield of their cruiser.
Concluding that the beam resembled a laser-sighting device sometimes used
for aiming a firearm, they pursued defendant and stopped him.

The officers ordered defendant and his passenger out of the vehicle.
A protective pat-down revealed that the passenger possessed a type of
hand-held laser pointer typically used as a visual aid for presentations,
not a gun sight. Simultaneously, the officers noticed signs of
defendant's intoxication which provided the basis for the DUI charge.

Defendant moved to dismiss the DUI charge claiming that the officers
lacked reasonable suspicion to stop him. After a hearing, the court
granted the motion concluding that the events leading to the traffic stop
did not constitute reasonable suspicion because neither defendant nor his
passenger had threatened the officers' safety. The court noted both that
defendant's vehicle had traveled away from the officers, thereby removing
any concern for their safety, and hand-held laser pointers are commonly
used. The court granted the State's request for permission to appeal its
ruling. See V.R.A.P. 5(b).

In order to lawfully stop defendant's vehicle, the officers must have
had a reasonable and articulable suspicion of criminal activity. See
State v. Welch, 162 Vt. 635, 636, 650 A.2d 516, 517 (1994) (mem.). The
reasonable suspicion standard "requires some minimal level of objective
justification for making the stop." State v. Lamb, 168 Vt. 194, 196, 720 A.2d 1101, 1102 (1998); see also State v. Kettlewell, 149 Vt. 331, 335,
544 A.2d 591, 594 (1987) (test is

whether, looking at entire picture, police officers could reasonably
surmise that occupants of vehicle they stopped were engaged in unlawful
activity).

Looking at the whole picture, it was reasonable for the officers to
have thought that an occupant of the car might have been engaged in
criminal activity; specifically, pointing a firearm at others. In
Vermont, pointing a firearm at another is unlawful. See, e.g., 13 V.S.A.
§§ 4011 (intentionally aiming firearm towards another punishable by fine),
1025 (knowingly pointing firearm at or in direction of another presumed to
be reckless endangerment), 1023 (simple assault includes attempt by
physical menace to put another in fear of imminent serious bodily injury).
Here, two officers witnessed a red beam, which resembled the beam from a
laser-sighting device coming from a passing vehicle, arc across the
windshield of their cruiser at approximately two o'clock in the morning.
The misconduct the officers inferred was not limited to that which
threatened only their safety, but applied to anyone at whom the beam was
directed.

While an officer may not act on an unparticularized hunch, witnessing
a red laser beam emanating from a car is a specific, articulable fact.
The officers had more than a "hunch" that, at two o'clock in the morning,
the beam might indeed be a sighting device attached to a weapon pointed
outward from the vehicle. It was an exceedingly rational inference. See
State v. Ryea, 153 Vt. 451, 454, 571 A.2d 674, 675 (1990) ("In order to
make a valid investigative stop, the police officer must be able to point
to specific and articulable facts which, together with the rational
inferences taken therefrom, reasonably warrant the intrusion.").

The possibility that a benign hand-held device that is readily
available to the public generated the beam does not render the inference
irrational. Laser-sighting devices are a part of the gun culture. For
example, in February 1996, Congresswoman Rosa L. DeLauro

introduced the Laser Assisted Gun Crime Penalty Act, which sought to
increase penalties under the United States Sentencing Guidelines for
individuals convicted of crimes involving laser sights. See 142 Cong.
Rec. H1620-21 (daily ed. Feb. 29, 1996). In her introduction,
Congresswoman DeLauro noted that "[l]aser sights have become a new rage,
the latest deadly fad." Id. In May 1996, while proposing similar
legislation, Congresswoman DeLauro further remarked on the issue:

Proliferation of this new technology is growing at an alarming rate
among street thugs in communities across America. On Christmas
Day of last year and during the first few weeks of the New Year,
guns equipped with laser sights have taken lives and evoked fear
amongst families in my district.

142 Cong. Rec. H4487 (daily ed. May 7, 1996).

Other legislators have attempted to regulate laser sights.
Congressman Rod Blagojevich introduced such a bill in July 1999. It
included congressional findings that the "risk to our Nation's law
enforcement officers increases when violent offenders possess
lethality-enhancing devices, such as laser sights, that are easily
accessible and highly unregulated." H.R. 2421, 106th Cong. § 2 (1999).

Similar concern has been expressed in the Senate. In a congressional
report concerning the Violent and Repeat Juvenile Offender Act of 1997,
several Senators observed that the "proliferation of laser sighting
devices . . . is putting police officers and our communities at greater
risk. As an advertisement for the 'LaserMax' brags, the laser-sight
provides 'unquestionable intimidation.'" S. Rep. No. 105-108, at 204
(1997).

Finally, two states have declared certain uses of laser-pointing
devices unlawful. In Illinois, it is a misdemeanor to knowingly aim a
laser pointer at a peace officer. See Act of July

23, 1999, No. 91-252, § 24.6-20, 1999 Ill. Legis. Serv. (WESTLAW).
Similarly criminalizing certain uses of laser pointers, the Washington
Legislature found that:

[L]asers are becoming both less expensive and more accessible in
our technologically advanced society. Laser devices are being
used by individuals in a manner so as to intimidate and harass.
This creates an especially serious problem for law enforcement
officers who reasonably believe they are the target of a laser
sighting device on a firearm. Additionally, emergency service
providers, service providers, and others who operate aircraft or
motor vehicles may be negatively affected to the point of
jeopardizing their safety as well as the safety of others. In order
to address the misuse of lasers, the legislature hereby finds it
necessary to criminalize the discharge of lasers under certain
circumstances.

Act of May 5, 1999, ch. 180, § 1, 1999 Wash. Legis. Serv. (WESTLAW).

We conclude that the officers acted reasonably in surmising that the
red beam of light that passed across their field of vision came from a
laser-sighting device attached to a firearm. Consequently, their stop of
defendant's motor vehicle for investigatory purposes was lawful.

Reversed.

FOR THE COURT:

_______________________________________
Associate Justice

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

No. 99-041

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit

Eric J. Kindle September Term, 1999

Amy M. Davenport, J.

Lauren Bowerman, Chittenden County State's Attorney, and John R.
Treadwell, Deputy State's Attorney, Burlington, for Plaintiff-Appellant.

Robert Andres and James Karns, Law Clerk (On the Brief), Burlington,
for Defendant-Appellee.

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

JOHNSON, J., dissenting. I respectfully dissent from the Court's
determination that it was reasonable for the police officers to stop
defendant based on the appearance of a red dot of light traveling across
their field of vision. Officers must have a "reasonable and articulable
suspicion that a person . . . has committed or is about to commit a crime"
to make a limited investigatory seizure under Terry v. Ohio, 392 U.S. 1
(1968). See State v. Hollister, 165 Vt. 553, 553, 679 A.2d 883, 884
(1996) (mem.). In evaluating whether officers had a reasonable and
articulable suspicion, we look at "the totality of the circumstances."
See State v. Crandall, 162 Vt. 66, 70, 644 A.2d 320, 323 (1994). Taking
the totality of circumstances into account here, I cannot find that the
officers'

suspicion that defendant's passenger was intentionally pointing a
laser-sighted firearm at them was reasonable.

The officers were stopped at a red light and defendant drove his car
across the intersection under a green light. Officer Blake testified that
a small red light flashed across the windshield and the officer's face.
Blake mentioned it to Officer Dumas, who said he had seen the same thing.
While they had this discussion, defendant's car continued across the
intersection and down the road, away from the officers' car. The officers
then decided to follow the car, turned the corner after it, and activated
their lights. They pulled the car over about a quarter-mile past the
intersection. The State suggests that the officers could have suspected
a number of crimes, including 13 V.S.A. § 4011 (aiming gun at another), or
13 V.S.A. § 1025 (recklessly endangering another person) (presumption of
recklessness and danger exist where a person "knowingly points a firearm at
or in the direction of another"). Both of these crimes require an element
of intent implausible in these circumstances.

In making this stop, the officers leapt to a number of conclusions.
First, they assumed that the red light was a laser-sight on a firearm,
despite the fact that Officer Blake admitted being aware that laser
pointers are widely available and used as everything from a business
accessory to a toy. Next, they assumed that the chance encounter at the
intersection somehow prompted defendant intentionally to aim a firearm at
their car. Then, they must have assumed that the red light that flashed
over their car was aimed precisely at their bodies, inside the darkened car
(since the crimes alleged to have been suspected require the intentional
direction of a firearm or other threat at a person). And despite the fact
that the car continued down the road and away from them, the officers must
have assumed that the occupants of that car had intentionally aimed a gun
at them and then immediately grown disinterested and drove away.

While it might be reasonable to assume a small red light could be a
laser-sight on a firearm, all the other circumstances of the incident fail
to support such an assumption. The car was operated normally; it was a
momentary, chance encounter at an intersection; and the occupants, which
these officers thought posed such a threat to their safety, drove through
the intersection and away from the police car, evidencing no interest in
it at all. The State relies on State v. Santacruz-Betancourt, 969 P.2d 1040 (Or. Ct. App. 1998) cert. denied, 987 P.2d 513 (Or. 1999). There, the
defendant aimed a laser beam inside a house, first at the forehead of an
elderly man and then at the forehead of an elderly woman. The defendant's
car was seen outside the house at the time by a person in the kitchen with
the elderly couple. The trial court suppressed the stop and the appellate
court reversed. According to the appellate court, the suspicion was
reasonable under those circumstances. See id. at 1043.

This case is unlike Santacruz-Betancourt for two reasons, as the
district court noted. First, the beam in this case was never pointed at a
person, let alone a person's head and second, the fact that the vehicle
moved through the light and was proceeding down the road, away from the
police, is wholly inconsistent with the actions of a person attempting to
point a firearm at someone else. In this situation, I think it was
unreasonable for the officers to stop the car and therefore, the court's
ruling should be affirmed. I am authorized to state that Justice Skoglund
joins in this dissent.

_____________________________________
Associate Justice

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