State v. Warner

State v. Warner  (2000-300); 172 Vt. 552; 773 A.2d 273

[Filed 26-Mar-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-300

                              MARCH TERM, 2001


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Vermont District Court
                                       }	Unit 2, Addison Circuit
                                       }
James Earl Warner	               }	DOCKET NO. 374-5-00 Ancr

                                                Trail Judge:  Dean B. Pineles

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

       Defendant James Warner appeals a conviction for driving under the
  influence of intoxicating  liquor (DUI), 23 V.S.A. § 1201(a)(2).  Shortly
  after his arraignment, defendant filed a motion to  suppress the evidence
  gathered as a result of the traffic stop leading to his DUI arrest,
  claiming that  the arresting officer lacked reasonable suspicion to effect
  a stop of defendant's vehicle, and,  therefore, the evidence was obtained
  in violation of Chapter I, Article 11 of the Vermont  Constitution and the
  Fourth Amendment to the United States Constitution.  The Addison District 
  Court disagreed, and defendant entered a conditional plea of guilty,
  reserving the right to appeal the  trial court's denial of his motion to
  suppress.  The court accepted the plea and entered judgment  against
  defendant.  We agree with defendant that the officer lacked reasonable
  suspicion to justify  the stop, and therefore reverse. 

       The uncontested facts in the case are as follows.  On May 2, 2000,
  sometime after 8:00 p.m.,  Middlebury Police Officer Sweet responded to a
  report of an attempted automobile break-in at an  apartment complex located
  on Boardman Street.  The complainant informed the police that the  suspect
  had run off into the nearby woods.  Shortly after arriving at the scene of
  the alleged  attempted break-in, Officer Sweet left the apartment complex
  and proceeded to drive around the  area.  Another officer radioed Officer
  Sweet to inform him that a car had just driven by on Boardman  Street,
  heading toward Foote Street.  Soon thereafter, Officer Sweet observed a car
  which had just  turned off Boardman Street onto Foote Street.  At this
  point, twenty minutes had elapsed since the  break-in had been reported. 
  The officer began to follow the car south on Foote Street, and while  doing
  so called in the car registration and discovered that it belonged to the
  defendant, James  Warner.  The officer testified at the suppression hearing
  that he had known the defendant, who was  48 years old on the night in
  question, for many years-ever since defendant had been in high school.  He
  also testified that he was aware of defendant's health condition,
  consisting of a heart condition  and having had several of his toes
  amputated, and that the defendant's home was located in the  direction they
  were traveling.  After traveling for approximately two miles, the car
  turned off the 


 

  road into a driveway, and the driver turned its headlights off.  The
  officer continued down Foote  Street, turned onto Route 7, and then stopped
  to observe the parked car.  After a few minutes, the  officer observed the
  car's headlights turn on, and then the car resumed travel south on Foote
  Street.   The officer again followed the car for a short distance, and then
  effected a traffic stop of the vehicle.  At that time, the officer had not
  observed defendant engaged in any unlawful conduct.  He testified  that he
  stopped defendant's car because "it was suspicious activity to me that-you
  know, maybe the  operator had a reason to avoid me."

       At the suppression hearing, the trial court judge distinguished this
  case from State v. Welch,  162 Vt. 635, 636, 650 A.2d 516, 517-18 (1994)
  (mem.), in which we held that a police stop of an  individual, when the
  officer had not witnessed any criminal activity by the suspect, was not
  based on  a reasonable and articulable suspicion of criminal activity and
  therefore not justified.  The judge  distinguished Welch on the grounds
  that here, unlike Welch, there had been a recent report of  criminal
  activity in the area, which, in his opinion, was a "significant
  difference."  The court found  that, in light of the fifteen to twenty
  minute time period between the break-in report and the sighting  of
  defendant's car, and the "furtive" acts of defendant, that the officer had
  reasonable and articulable  suspicion to effect a stop of defendant.  Thus,
  the motion to suppress was denied.

       In this appeal, defendant asserts that neither the officer's
  observations nor defendant's  proximity to the reported break-in suffice to
  provide the reasonable suspicion of criminal activity  necessary to support
  a permissible stop of defendant's vehicle.  He contends that the suspicion
  the  officer held in this case was no more reasonable nor articulable as to
  criminal activity than the  suspicion we found insufficient in Welch and
  State v. Emilo, 144 Vt. 477, 479 A.2d 169 (1984).   The State responds that
  the suspicious activity by defendant, in pulling into a driveway, turning
  off  the headlights, sitting there for a few minutes, turning the
  headlights back on, and then departing,  viewed in the context of his
  proximity to the reported break-in, was sufficient to provide the officer 
  with a "reasonable, articulable suspicion." 

       We have repeatedly recognized that, for a police officer's warrantless
  traffic stop to be  justified, the officer must possess a reasonable and
  articulable suspicion that the individual to be  stopped is engaged in
  criminal activity.  State v. Crandall, 162 Vt. 66, 70, 644 A.2d 320, 323
  (1994);  see also Welch, 162 Vt. at 636, 650 A.2d  at 517.  In determining
  whether a stop is justified, "the  totality of the circumstances-the whole
  picture-must be taken into account."  State v. Paquette,  151 Vt. 631, 635,
  563 A.2d 632, 635 (1989) (citation and internal quotations omitted).  The
  United  States Supreme Court has recently addressed this issue as well,
  reaffirming that "[a] search or seizure  is ordinarily unreasonable in the
  absence of individualized suspicion of wrongdoing."  City of  Indianapolis
  v. Edmond, __ U.S. __, __, 121 S. Ct. 447, 451 (2000).  The level of
  suspicion required  to justify a stop need not rise to the level required
  to prove guilt by a preponderance of the evidence,  but it must be more
  than an inchoate and unparticularized suspicion or hunch.  Welch, 162 Vt.
  at  636, 650 A.2d  at 517.      

       Both the State and the defendant rely primarily upon Welch and Emilo
  in asserting their  contrasting arguments.  In Welch, three police officers
  were approached by an individual reporting 


 

  the following: that he had seen people walking around an older pickup truck
  in a driveway, and "he  thought that that was suspicious," leading him to
  drive by again.  Id.  He reported that he then  observed the truck in a
  different driveway, with the occupants either not present or inside the
  truck.   The individual also reported seeing objects in the back of the
  truck, without being able to identify  these objects.  While relaying this
  information to the officers, the truck in question drove by them,  and one
  of the officers proceeded to follow it for two miles before pulling it
  over.  The officer  testified that there had been no unlawful or suspicious
  conduct by the truck while he followed it, and  that the reason he pulled
  it over was to ask what the driver had been doing going into and out of 
  driveways.  We held that the trial court's denial of the motion to suppress
  was error, as "an  investigatory stop may not be based solely on the
  unsupported hunch of an informant."  Id., 650 A.2d   at 518.  While we
  recognized that citizen information about activity they deem suspicious may
  be  presumed reliable, the activity reported was not itself indicative of
  criminal conduct, and therefore  the defendant's activities did not give
  rise to a reasonable and articulable suspicion of wrongdoing.   Id. 

       In Emilo, we addressed the reasonableness of a stop based on an
  officer's observation of a car  with an out-of-state license plate
  traveling on a rural road after midnight.  In that case, an officer 
  spotted an unfamiliar car while returning home after responding to a call
  reporting a possible break-in at a local store.  After investigating the
  store with another officer, they determined that no  attempted break-in had
  been made.  When the officer subsequently spotted the car during his drive 
  home, the car was not operating erratically or in an unusual manner, and
  there were no allegations of  any other traffic violations involving the
  car.  Nevertheless, the officer effected a stop of the car.  We  upheld the
  finding by the trial court that the officer lacked reasonable suspicion of
  wrongdoing  regarding the car and its occupants.  We stated that the
  officer's "'suspicion' that the [car] did not  belong in the particular
  area in the early morning hours, without more, clearly falls outside of an 
  'articulable and reasonable' suspicion of some criminal wrongdoing." 
  Emilo, 144 Vt. at 481, 479 A.2d  at 171.  We held that the defendant's
  motion to suppress should therefore have been granted. 

       The State argues that the present case is stronger than Emilo because,
  unlike in Emilo, the  officer here observed "suspicious activity" in the
  form of defendant's pulling into a driveway other  than his own, turning
  off his lights for a few minutes, and then resuming his travel down the
  road.   However, unlike the situation in Emilo, the officer here knew the
  car belonged to a resident of the  area and was headed in the direction of
  the owner's home.  

       The State also argues this case can be distinguished from Welch, in
  that there was here a report  of criminal activity in the area, as well as
  the aforementioned "suspicious" activity.  Our case law  requires that
  there be suspicion of criminal activity or wrongdoing and not that the
  officer simply be  suspicious for reasons unconnected to any suspected
  wrongdoing.  Here, as in Emilo, the officer had  no basis other than the
  usual paucity of motor vehicle traffic on the streets in question to tie
  the  defendant's car to the alleged crime.   There are any number of lawful
  reasons why a person driving  down a road would not want to be followed by
  a police officer.  By the officer's own admission, he  did not believe
  there was anything illegal about the activities he observed defendant
  engage in prior  to the stop.  The officer made no claim that he believed
  the defendant may have been the person 


 

  alleged to have attempted the break-in and who then ran off into the woods,
  which was reasonable  given his understanding of the defendant's physical
  condition.  Nor did the proximity of the  defendant's lawful actions to the
  reported break-in scene provide sufficient basis to suspect his 
  involvement in the reported criminal activity.  The officer offered only
  that "there's always the  possibility that someone running like that is
  going to a car, there's a car waiting, or whatever." 

       We agree with defendant that, in this case, the officer lacked a
  reasonable and articulable  suspicion of criminal activity to justify the
  stop.  Here, we have a local man, driving down the public  street at 8:30
  in the evening, traveling in the direction of his home (a fact known to the
  officer), who  stops in a driveway approximately thirty minutes after and
  approximately two miles from reported  criminal activity in which there was
  no reason to suspect he was involved.  As was the case in   Welch and
  Emilo, the circumstances of this case fail to give rise to a reasonable and
  articulable  suspicion of criminal activity.  Therefore, the evidence
  obtained as a result of the stop should have  been suppressed.  See Welch,
  162 Vt. at 636, 650 A.2d  at 518 (failure to establish reasonable and 
  articulable suspicion of criminal activity requires suppression of evidence
  obtained from stop);  Emilo, 144 Vt. at 484, 479 A.2d  at 173 (same).

       The judgment of the district court is vacated, and the conviction
  reversed.



BY THE COURT:



_______________________________________
Jeffrey L. Amestoy, Chief Justice

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
James L. Morse, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice