State v. Riefenstahl

State v. Riefenstahl (2000=252); 172 Vt. 597; 779 A.2d 675

[Filed 18-Jul-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-252

                              MARCH TERM, 2001


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 2, Chittenden Circuit
                                       }
Alan Riefenstahl                       }	DOCKET NO. 6742-11-99 Cncr

                                                Trial Judge: Michael S. Kupersmith

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


       Defendant Alan Riefenstahl was charged with operating a motor vehicle
  while under the  influence of intoxicating liquor in violation of 23 V.S.A.
  § 1201(a)(2), with a third offense felony  enhancement.  Defendant pleaded
  guilty pursuant to a conditional plea agreement that reserved his  right to
  appeal the denial of his motions to suppress and dismiss for lack of
  probable cause to stop  defendant and to strike his prior convictions. 
  Defendant contends the trial court erred by: (1)  denying his motion to
  suppress evidence derived from a stop of his vehicle based upon information 
  supplied by a named informant; and (2) failing to grant his motion to
  strike his prior convictions  because they did not comply with V.R.Cr.P.
  11.  We affirm.

       On October 26, 1999, at approximately 5:00 p.m., a South Burlington
  police officer received a  dispatch that a sales clerk at the South
  Burlington Shell station, had reported that the male operator  of a black
  Ford Bronco with Vermont licence plate BNR 139 "was possibly intoxicated
  and driving."  The informant identified himself by name to the police, and
  the informant's name was also provided  in the dispatch to the officer. 
  The informant reported that the Bronco was heading south on  Shelburne
  Road.  The officer proceeded north on Shelburne Road until she located the
  Bronco, and  then turned around and followed the vehicle.  While she
  attempted to catch up to the Bronco, there  were first three other cars in
  traffic between the officer and the Bronco, and eventually only one other 
  car between them.  The officer testified that, while in pursuit, she did
  not observe any signs of erratic  driving, but that she could not properly
  observe the Bronco because of weather conditions and the  other traffic. 
  She then observed the Bronco pull into a driveway.  The officer activated
  her vehicle's  blue lights and followed it into the driveway.  Defendant
  exited the Bronco and stood next to it, with  the door open, until the
  officer approached.  The officer initiated field sobriety tests, which
  defendant  failed.  Subsequently, defendant was arraigned on the charge of
  DUI with a felony enhancement for a  third offense.  The information
  alleged that defendant had previously been convicted of DUI on  January 9,
  1995, September 11, 1991, and September 18, 1985. 

       Defendant moved to dismiss the charges, claiming that the officer
  lacked probable cause to  stop him and process him for DUI.  The court
  rejected his argument, ruling that under the totality 

 

  of the circumstances the detailed information provided by the named
  informant, which the officer  was able to confirm, justified the stop.  See
  State v. Lamb, 168 Vt. 194, 197, 720 A.2d 1101, 1103  (1998) (detailed
  information provided by anonymous informant, and verified by officer,
  sufficient to  warrant stop).

       Defendant also moved pursuant to V.R.Cr.P. 12(d) to strike the prior
  DUI convictions,  claiming he did not enter a knowing and voluntary plea. 
  At the February 2, 2000 status conference,  defense counsel represented
  that defendant was represented by counsel at the 1991 change of plea,  and
  that he was still waiting for the transcript of the 1995 change of plea. 
  Ruling from the bench, the  court denied defendant's motion to strike the
  1991 conviction because defendant was represented by  counsel during the
  change of plea on the 1991 charge.  On May 8, 2000, defendant entered a 
  conditional plea of guilty.  

       On appeal, defendant first contends that the information provided by
  the named informant was  insufficient to provide a reasonable articulable
  suspicion of wrongdoing to justify a stop.  In the time  since defendant
  filed his notice of appeal, we decided State v. Boyea,__ Vt. __, __, 765 A.2d 862,  868 (2000), in which we held that an anonymous tip alone,
  reporting erratic driving, can justify a  brief investigative stop where
  the tip accurately describes a vehicle and its route and location upon a 
  highway.  In Boyea, the officer did not observe any signs of erratic
  driving or suspicious behavior  before he stopped the defendant's vehicle. 
  Upon arrival at the predicted location of the vehicle,  however, the
  officer confirmed the credibility and reliability of the tipster's
  information.  Balancing  the risk of harm posed by failing to detain the
  driver against the minimal intrusion occasioned by the  detention, we
  concluded the stop was reasonable.  

       The reasonableness of the officer's investigative stop in this case is
  even stronger because the  informant identified himself, his location of
  observation, and demonstrated his "willingness to bear  the consequences of
  the accusation."  Lamb, 168 Vt. at 203, 720 A.2d  at 1107 (Dooley, J., 
  dissenting); cf. Florida v. J.L., 529 U.S. 266, 275 (2000) (Kennedy, J.,
  concurring) (anonymous  informant "has not placed his credibility at risk
  and can lie with impunity").  Generally, information  about criminal or
  suspicious activity from a citizen, who is not a paid informant and is
  unconnected  with the police, is presumed to be reliable.  United States v.
  Sierra-Hernandez, 581 F.2d 760, 763 n.1  (9th Cir. 1978), cert. denied, 439 U.S. 936 (1978).  The informant here provided a detailed  description of
  the vehicle, its make, model, license plate number, route and direction of
  travel.  The  informant also reported that the operator was possibly
  intoxicated.  The named informant's tip  contained sufficient indicia of
  reliability to justify the 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) (rejecting  argument that "reasonable cause for a stop . . . can
  only be based on the officer's personal  observation"). (FN1) 

 

  Defendant next challenges the court's failure to strike the two DUI
  convictions that supported  the felony enhancement.  Defendant maintains
  that the trial courts did not adhere to the strict  requirements of
  V.R.Cr.P. 11.  Specifically, he claims that during the 1991 plea colloquy,
  he was  never informed of the penalty he was facing and the rights he was
  waiving.  Defendant claims the  court  never addressed him directly to
  ensure the plea was voluntary or that there was a factual basis  for the
  charge.  Regarding the 1995 conviction, defendant maintains the court
  failed to address him  or determine if the plea was voluntary and never
  inquired whether there was a factual basis for the  plea.  

       The purpose of Rule 11 is to ensure that a plea is knowingly and
  voluntarily made.  State v.  Morrissette, 170 Vt. 569, 571, 743 A.2d 1091,
  1092 (1999) (mem.).  To ensure the goals of  V.R.Cr.P. 11, however, we
  require only "a practical application of the rule ensuring fairness, rather 
  than a technical formula to be followed." Id.  Substantial compliance,
  rather than strict adherence to  the rule is required.  See In re Thompson,
  166 Vt. 471, 476, 697 A.2d 1111, 1114 (1997).  Review of  the transcript
  for the 1991 change of plea reveals that the colloquy substantially
  complied with Rule  11.  At the 1991 change of plea, defendant was
  represented by counsel, who announced that a plea  agreement had been
  reached and provided the court with a copy.  The court asked defendant if
  he  filled out the change of plea which contained a waiver of rights and
  whether he understood  everything on the change of plea form, to which
  defendant responded yes.  The court informed  defendant that he had a right
  to plead not guilty, asked if he had had an opportunity to consult with 
  counsel, informed him of the maximum penalty and questioned  defendant's
  counsel whether he  could use the affidavit of probable cause as the
  factual basis for the plea, to which counsel responded  yes.  There was
  substantial compliance with V.R.Cr.P. 11.  See Morrissette, 170 Vt. at 571,
  743 A.2d   at 1093 ("Given the straightforward nature of the charge and the
  lack of any evidence that defendant  was not competent to understand his
  situation, we conclude that (1) defendant's execution of the  waiver forms
  and written plea agreement, (2) the court's inquiry confirming that
  defendant  understood these documents, and (3) defendant's stipulation to
  the factual basis for the charge show  substantial compliance with
  V.R.Cr.P. 11.")  

       Regarding the 1995 change of plea, the State contends that defendant
  failed to preserve this  issue as he did not present the trial court with a
  transcript of the 1995 change of plea.  Defendant has  the burden of
  proving that the 1995 plea was invalid.  State v. Delisle, __ Vt. __, __,
  758 A.2d 790,  793 (2000).  Defendant never presented the trial court with
  a transcript or other evidence supporting  his claim that the plea was not
  knowingly and voluntarily made. See State v. Lambert, 146 Vt. 142,  145,
  499 A.2d 761, 764 (1985) ("The State's ultimate affirmative duty to
  establish the validity of a  plea does not excuse defendant's insufficient
  effort to come forward on his claim.").  Defendant made  a statement to the
  court that he would be challenging the 1995 conviction, and was granted a 

 

  continuance to allow a hearing on this claim, but he failed to follow up
  and present the challenge.   Because he abandoned below the challenge to
  the 1995 conviction, and the court therefore did not  rule on this issue,
  he has waived this claim for purposes of appeal.  See State v. Nichols, 167
  Vt. 566,  567, 702 A.2d 77, 78 (1997) (mem.) (failure to raise claim below
  precludes review absent plain  error); State v. Koveos, 169 Vt. 62, 71, 732 A.2d 722, 729 (1999) ("In the absence of an adverse  ruling, there is no
  error for review.") (internal quotations omitted).  

     
       Affirmed.


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                                 Dissenting


  DOOLEY, J., dissenting.   This case is controlled by State v. Kettlewell,
  149 Vt. 331, 544 A.2d 591 (1987), a case in which the State argued that
  the tip of an identified informant gave a state  policeman reasonable
  suspicion to search a travel trailer controlled by defendant and containing 
  marijuana and two Mexicans.  We reversed defendant's conviction because the
  content of the tip was  insufficient for the policeman to "reasonably
  surmise that the particular vehicle they stopped was  engaged in criminal
  activity."  Id. at 335, 544 A.2d  at 594 (quoting United States v. Cortez,
  449 U.S. 411, 421-22 (1981)).   The State's theory was that the tip was
  sufficient for the officer to have  reasonable suspicion that the Mexicans
  were illegal aliens.  We concluded, however, that the tip was  equivocal -
  "I did not know whether they were legal or not" - and was conclusory
  because no reason  was stated for the informant's suspicion.  Id. at 337,
  544 A.2d  at 595.  Because the requirements of  Kettlewell, and the numerous
  United States Supreme Court decisions on which it is based, require  that
  we hold that the stop of defendant's car in this case was unjustified, I
  dissent.

       The entire relevant content of the informant's tip in this case was
  that the defendant "was  possibly intoxicated."  If anything, this tip is
  weaker than that found inadequate in Kettlewell.  It is  wholly conclusory,
  lacking any supporting observations of defendant's conduct.  It is, at
  best,  equivocal, expressed in language that would apply to any driver on
  the road.  Although it is difficult  to find cases that are identical to
  this one, I note that courts have generally found inadequate 
  justifications for searches and/or stops based on possibilities, with no
  supporting information  showing the commission of a crime.  See, e.g.,
  State v. Williamson, 965 P.2d 231, 233 (Mont. 1998)  (probable cause
  lacking where named informant reported a "possible drunk driver"); Graf v.
  Dep't of  Commerce and Regulation, 508 N.W.2d 1, 3-4 (S.D. 1993) (anonymous
  tip that driver was  "possibly" intoxicated insufficient to justify the
  stop); Garcia v. State, 894 S.W.2d 865, 869 (Tex. Ct.  App. 1995) (no
  reasonable suspicion to stop where defendant was observed driving a truck
  away  from a house which a federal officer reported was "possibly a storage
  point for narcotics"); see also  Safford v. Department of Fire, 627 So. 2d 707, 709-10 (La. Ct. App. 1993) (no reasonable and  articulable suspicion
  where female caller, claiming to be fireman's wife, made statements from
  which  fire chief concluded fireman was "possibly intoxicated").  

       Except for a footnote in response to this dissent, the majority
  ignores the requirement that the  tip have sufficient content to raise a
  reasonable suspicion that defendant was committing a crime,  instead
  detailing why, based on our recent decisions, the informant's statement was
  reliable because  the informant gave his name and was able to describe
  defendant's vehicle and route of travel.  I agree  that the state has
  established reliability, but find this discussion beside the point.  The
  reliability of  the informant cannot make up for an inadequate statement on
  which to base a stop.

 

       Indeed, I think the majority's reliance on informant tip cases is now
  producing an improper  distortion in our law.  I cannot believe the
  majority would uphold a stop by a police officer who  testified that he or
  she made the stop based on a belief that the operator was possibly
  intoxicated, and  offered no specific observations to support the
  conclusory opinion.  I think we would label such an  opinion a speculative
  hunch and unanimously find that there was no reasonable and articulable 
  suspicion to justify the stop.  Today, we are upholding a stop based on
  exactly the same information  when it comes from an informant.  Impliedly,
  the majority is saying that an informant can say  anything, and the
  statement will be sufficient justification for a stop as long as it somehow
  names the  person to be stopped.  In oral argument, the State carried this
  theory to its logical limit by claiming it  would be sufficient if a
  reliable, named informant stated only "Stop [defendant] for DUI!"  In our 
  zeal to recognize a role for informants and to combat DUI, we have taken
  the unprecedented step of  eliminating a main part of the Terry stop
  requirements where informants are involved.

       Finally, I emphasize that I would be more likely to accept the
  majority position if I thought  this approach necessary to combat DUI.  In
  fact, the record before us demonstrates to the contrary.   The State
  obtained an affidavit from the informant that shows he is a former
  bartender and  recognized numerous signs of intoxication in defendant.  If
  the police dispatcher had only asked the  informant to clarify his opinion
  and describe the observations behind the opinion, this case would  probably
  not be here on appeal.  Rather than adopting an unprecedented and
  unwarranted relaxation  of constitutional requirements to justify a stop,
  we should be sending the message that police  departments need to tighten
  procedures to obtain the information necessary to properly support a  stop.

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



Dissenting:	                        BY THE COURT:


____________________________________	_______________________________________
John A. Dooley, Associate Justice	Jeffrey L. Amestoy, Chief Justice

____________________________________	_______________________________________
Denise R. Johnson, Associate Justice	James L. Morse, Associate Justice
               	
                                        _______________________________________
                                        Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  The dissent relies on our decision in Kettlewell to challenge the
  content of the tip.  The  facts of Kettlewell on this point are easily
  distinguishable and no space will be devoted to that task  here.  Suffice
  it to say that, had the police officer herein been provided with a
  statement from a store  clerk that "there was a man in the store and I did
  not know whether he was drunk or not," I would  agree that the content of
  the tip was insufficient.  However, here we have a store clerk relaying his 
  opinion that a man he saw in the store was "possibly intoxicated and
  driving."  As the United States  Supreme Court wrote in Terry v. Ohio, in
  order to make a valid stop to investigate suspected  criminal activity,
  "the police officer must be able to point to specific and articulable facts
  which,  taken together with rational inferences from those facts,
  reasonably warrant [the] intrusion."  392 U.S. 1, 21 (1968).  We noted in
  Kettlewell that "[h]e [the constable] did not even say he suspected  they
  [the Mexicans] were illegally in the country," and thus we held the trooper
  had no "specific and  articulable facts" as required by Terry to warrant
  the investigatory seizure.  149 Vt. at 337, 544 A.2d   at 595.