State v. Theetge

State v. Theetge (99-367); 171 Vt. 167; 759 A.2d 496 

[Filed 14-Jul-2000]
[Motion for Reargument Denied 21-Aug-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. 99-367


State of Vermont	                         Supreme Court

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

Eugene M. Theetge	                         March Term, 2000


Theodore S. Mandeville, Jr., J. (Ret.)

Robert L. Sand, Windsor County State's Attorney, White River Junction, for 
  Plaintiff-Appellant.

Robert Appel, Defender General, and Anna Saxman, Appellate Attorney, Montpelier, 
  for Defendant-Appellee.


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


       AMESTOY, C.J.   In this Driving While Intoxicated (DWI) case, the
  State has filed an  interlocutory appeal from a Windsor District Court
  decision granting defendant Eugene Theetge's  motion to suppress evidence
  obtained from a seizure.  The State argues that a seizure did not occur, 
  or, in the alternative, if a seizure did occur, the officer's actions were
  lawful.  We reverse.

       On March 2, 1999, at 11:30 p.m., Vermont State Police Trooper Timothy
  Clouatre observed  defendant's stopped vehicle in the southbound breakdown
  lane of Interstate-91 in Hartland.  The  officer pulled his cruiser into
  the breakdown lane behind defendant's vehicle and activated the  cruiser's
  blue lights and spotlight.  The officer exited his vehicle and approached
  defendant's vehicle

 

  with a flashlight in one hand and his drawn weapon in the other.  Trooper
  Clouatre's first exchange  with defendant was to request his license and
  registration as well as ordering defendant to keep his  hands visible.  The
  officer then verified that defendant was not in need of assistance. 
  Trooper  Clouatre observed that defendant's eyes were watery and bloodshot,
  his speech was slurred and  mumbled, and his breath strongly smelled of
  alcohol.  He also noticed alcoholic beverages in the  back seat. 
  Suspecting that defendant was under the influence of alcohol, he informed
  defendant to  "hang tight" while he went back to his cruiser to process
  defendant's information.  Additionally,  Trooper Clouatre requested the
  assistance of another officer.

       When another officer arrived, approximately twelve minutes later,
  Trooper Clouatre  explained that he observed defendant's vehicle initially
  stopped in the breakdown lane and  investigated for that reason.  With the
  other officer watching the passenger, Trooper Clouatre  conducted a series
  of standard tests which tended to show that defendant was intoxicated.  
  Consequently, the State charged defendant with DWI, in violation of 23
  V.S.A.  1201.

       Prior to trial, defendant moved to suppress all evidence in the case,
  arguing that the officer  had illegally seized him.  The trial court held a
  hearing, at which the State called Trooper Clouatre as  its sole witness. 
  Further, the State introduced and played portions of a videotape from a
  dashboard-mounted camera that had been activated when the officer pulled
  his cruiser into the breakdown lane  behind defendant's vehicle.  On
  cross-examination, the officer testified that defendant was not free to 
  leave and that, had defendant attempted to leave, the officer would have
  pursued him.  

       In its written decision, the court concluded that the officer had
  seized defendant, but that he  had no reasonable and articulable suspicion
  that defendant was engaged in unlawful activity.  The 

 

  court also rejected the State's argument that the stop constituted an
  exception to the reasonable and  articulable suspicion requirement under
  the "community caretaking" doctrine, concluding that  Trooper Clouatre's
  initial request for defendant's license and registration before inquiring
  whether  there was an emergency precluded applying the exception.  Having
  found neither a reasonable and  articulable suspicion nor a community
  caretaking exception to justify the seizure, the court granted  defendant's
  suppression motion.  The State filed this interlocutory appeal.

                                     I.

       The State first argues that the use of the cruiser's blue lights, when
  pulling behind a vehicle  already parked in the breakdown lane of the
  interstate, does not create a seizure.  In doing so, it  invites us to
  overrule our decision in State v. Burgess, 163 Vt. 259, 261, 657 A.2d 202,
  203 (1995),  where we held that the displaying of a cruiser's blue lights
  after pulling behind a stopped vehicle in a  lawful pull-off area
  constituted a seizure that required a reasonable and articulable suspicion. 
  We  decline to revisit Burgess, because it is clear that the officer's
  conduct here "would signal to a  reasonable person that the officer is
  attempting to seize the person for investigative purposes."  Id. at  263,
  657 A.2d  at 204 (Dooley, J., dissenting) (quoting State v. Hanson, 504 N.W.2d 219, 220  (Minn. 1993)); State v. Tongue, 11 Vt. L.W. 73, 74 (2000)
  (when police officer merely approaches  and questions person in parked
  vehicle, no seizure has occurred; test is whether officer has done 
  anything to inhibit person's freedom of movement) (citing Burgess, 163 Vt.
  at 261, 657 A.2d at 203).

       Beyond activating his blue lights and spotlight, the officer
  approached defendant's vehicle  with his weapon drawn - though it is
  unclear whether defendant knew of this fact - and requested  defendant's
  license and registration.  After obtaining these documents, he specifically
  ordered  defendant to "hang tight" while he processed defendant's
  information in his cruiser.  Upon this show 

 

  of authority, we believe that a reasonable person in defendant's position
  would objectively believe he  was not free to leave the scene.  See id. at
  261-62, 657 A.2d  at 203. (FN1)  Thus, the trial court  correctly concluded
  that a seizure had occurred.  

                                     II.

       The conclusion that a seizure occurred does not end our inquiry.  The
  State contends that if a  seizure did take place, it was justified. (FN2) 
  We agree.

       The threshold issue is "whether the officer had reasonable grounds to
  suspect that defendant  was engaged in any wrongdoing at the time of the
  encounter."  State v. Sutphin, 159 Vt. 9, 11, 614 A.2d 792, 793 (1992);
  see also State v. Marcello, 157 Vt. 657, 657-58, 599 A.2d 357, 358 (1991) 
  (mem.) ("Generally, the Fourth Amendment to the United States Constitution
  and Chapter I, 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.").  Thus, when an officer has a
  reasonable and articulable suspicion that a  traffic violation has
  occurred, he or she may stop a vehicle to investigate.



       Traffic Committee Regulation 1.7(A), promulgated pursuant to the
  authority of 23 V.S.A.   1004, states in pertinent part: "No parking,
  standing or stopping is permitted on limited access  highways, except in
  areas designated or in cases of emergency."  It cannot be disputed that TCR 
  1.7(A) applies to the facts of this case as the State presents them.  I-91
  is clearly a limited access  highway, and defendant was not in a designated
  area where parking, standing, or stopping is allowed. 
 	
       In granting defendant's motion to suppress, the trial court concluded
  that the officer could not  have had reasonable suspicion of criminal
  activity without first asking defendant the reason for stopping in the
  breakdown lane.  Apparently, the court reasoned that because stopping on
  limited  access highways is not a violation in "cases of emergency," a law
  enforcement officer does not have  a reasonable suspicion unless he first
  determines that there is no "plausible reason for stopping in the 
  breakdownlane." (FN3)

       We believe that the trial court - perhaps confused by the State's
  reliance at the suppression  hearing on the community caretaking doctrine -
  erroneously determined that the officer was required  to first ask
  defendant whether the stop was because of an emergency.  Unlike Marcello,
  here the  officer had a reasonable and articulable suspicion that defendant
  was violating a motor vehicle law.   The instant case is also factually
  distinguishable from Burgess, where we expressly noted that the 
  "defendant's vehicle was lawfully parked in a pull-off on the side of the
  road."  Burgess, 163 Vt. at  262, 657 A.2d  at 204 (emphasis added).  The
  officer in Burgess "had no indication anything was  wrong."  Id.  Here,
  only one of two possible scenarios could be true: either (1) there was an 
  emergency justifying defendant's vehicle's presence in the breakdown lane,
  or (2) defendant was  violating TCR 1.7(A).  Either scenario was sufficient
  to establish a reasonable and articulable 

 

  suspicion for the officer's seizure of defendant; the former under the
  community caretaking doctrine  and the latter under the traffic violation
  doctrine.  Accordingly, we reverse the trial court's decision  granting
  defendant's motion to suppress and remand this matter for further
  proceedings.

       Reversed and remanded.



                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice


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                                  Footnotes

                                   
FN1.  Trooper Clouatre's testimony that defendant was not free to leave and
  that had defendant  attempted to leave, the officer would have pursued him,
  is not dispositive of this issue.  The test is  not the police officer's
  subjective intentions, but rather the objective belief of a reasonable
  person in  the position of the defendant.  See Burgess, 163 Vt. at 261-62,
  657 A.2d  at 203.  Nevertheless, while  Trooper Clouatre's subjective intent
  is not determinative, it is additional evidence that informs and  supports
  the conclusion that defendant did not reasonably feel free to leave the
  scene.

FN2.  In response to defendant's motion to suppress and in its briefing
  to this Court, the State  argued that a seizure was justified under the
  community caretaking doctrine.  See State v. Marcello,  157 Vt. 657, 658,
  599 A.2d 357, 358 (1991) (mem.) (allowing officers to stop a vehicle
  without  reasonable suspicion in some circumstances because police have
  essential role as public servants to  "'assist those in distress and to
  maintain and foster public safety'") (quoting State v. Pinkham, 565 A.2d 318, 319 (Me. 1989)).  At oral argument, however, the State asserted that
  it is unnecessary to  apply the community caretaking doctrine because the
  officer had a reasonable and articulable  suspicion that defendant was
  violating a motor vehicle law.

FN3.  We note that parking, standing, or stopping is permitted only "in
  cases of emergency"  under TCR 1.7(A).  Defendant's passenger testified at
  the suppression hearing that defendant had  stopped so that defendant and
  passenger could remove their jackets.