State v. Lizee

State v. Lizee (2000-445); 173 Vt. 473; 783 A.2d 445

[Filed 26-Sep-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-445

                            SEPTEMBER TERM, 2001


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 2, Bennington Circuit
Zachary M. Lizee	               }
                                       }	DOCKET NO. 1767-12-99 Bncr

                                                Trial Judge: David Howard  

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


       The State appeals from a decision of the district court granting
  defendant's motion to suppress  evidence obtained from a search of his
  impounded vehicle.  The State contends that the court erred in  failing to
  uphold the seizure and subsequent search of the vehicle under the
  "community caretaking"  doctrine.  We affirm.  

       As found by the trial court, the facts were as follows: On the evening
  of December 10, 1999, a  police officer with the Winhall Police Department
  stopped defendant's vehicle for having a non-functioning rear plate light. 
  The stop occurred in a rural area.  Although defendant's vehicle was 
  pulled as far onto the shoulder as possible, part of the vehicle remained
  in the traveled portion of the  road.  The officer parked his cruiser
  behind defendant's car, approached the vehicle, and encountered  defendant
  and another person sitting in the passenger seat.  The officer informed
  defendant of the  reason for the stop and asked for his registration,
  license, and insurance material.  Defendant  presented his license and an
  expired insurance card, and failed to produce a registration.  The officer 
  asked defendant to accompany him to his cruiser, where a DMV check revealed
  that the registration  had expired and there was a pending suspension for
  lack of insurance, although it had not gone into  effect.  Despite the DMV
  information, defendant's vehicle had valid registration stickers on the 
  license plates;  defendant explained that he had personally registered the
  vehicle within the last two  days.  He also told the officer that he had
  recently failed to pay his insurance premium for lack of  funds.  

       The officer indicated that he planned to issue defendant a warning for
  the plate-light violation,  and citations for the insurance and
  registration violations.  The officer then returned to defendant's  car and
  questioned the passenger.  Believing that he detected the odor of
  marijuana, the officer asked  the passenger whether he was in possession of
  marijuana, which the passenger denied.  The officer  then returned to the
  cruiser, asked defendant if there was marijuana in the vehicle - which
  defendant  also denied - and requested consent to search the vehicle. 
  Defendant refused to give consent, stating  that there was nothing to find
  and that he was in a hurry to leave.  Undeterred, the officer pressed 
  defendant, asking if a canine would react to a search of the vehicle. 
  Defendant again insisted that  there was nothing in the vehicle, and
  requested permission to leave.   The officer told him to wait,  and radioed
  in to inquire about obtaining a canine search.  Learning that there was no
  canine within  an hour of their location, the officer again asked for
  permission to search the vehicle, and again was 

 

  denied.  He then had defendant and the passenger empty their pockets, which
  revealed nothing  illegal, and informed them that they were being
  "detained," not arrested.  The passenger was  eventually handcuffed and
  searched, again revealing nothing illegal.  By this time, a backup unit had 
  arrived, and both officers peered closely into defendant's vehicle with
  flashlights.  The investigating  officer also unsuccessfully tried calling
  an 800 number for defendant's insurance company.

       Failing to obtain consent to search, the officer then informed
  defendant that he could not  drive the vehicle away without proof of
  insurance, and that it would have to be towed.  The issue of  towing the
  vehicle due to the insurance issue had not come up at all during the prior
  portion of the  stop and processing. The officer called a local operator,
  Stuart Coleman, who often towed for the  police.  Coleman appeared with his
  tow truck, informed defendant that he was tired and would not  tow the
  vehicle any distance, but indicated that he could tow it to his garage and
  defendant could call  for a ride.  This ultimately occurred.  The officer
  informed defendant that he would have to show a  police officer proof of
  insurance before his vehicle would be released to him. Coleman kept 
  defendant's keys.   Defendant and his passenger were driven to a telephone
  to call friends for a ride.   Later that evening, the same officer stopped
  another vehicle for lack of a valid inspection sticker.   Defendant was a
  passenger in that vehicle.  After dealing with the violation, the officer
  allowed the  vehicle to proceed.  

       The following morning, the officer returned to Coleman's garage with a
  state police canine  unit.   The police dog alerted to the trunk of
  defendant's car, a search warrant was obtained, and the  ensuing search
  revealed three pounds of marijuana in the trunk.  Defendant later moved to
  suppress  the evidence, claiming that the police lacked a reasonable basis
  to take custody of the vehicle, and  the ensuing search was therefore
  unlawful.   Following a hearing, the court granted the motion,  finding
  that there was no consistent police policy or practice governing
  impoundment of vehicles for  civil traffic violations such as a failure to
  provide proof of insurance, and that the decision to  impound in this case
  was arbitrary and unsupported by the attendant circumstances.  This appeal 
  followed.   
  
       On appeal, the State contends that the warrantless search was
  justified as incident to the  impoundment of defendant's vehicle under the
  so-called "community caretaking" doctrine.   In State  v. Marcello, 157 Vt. 
  657, 658, 599 A.2d 357, 358 (1991) (mem.), we recognized that in some 
  circumstances the police may be justified in intruding upon a person's
  privacy - even absent  reasonable suspicion of criminal activity - "to
  carry out 'community caretaking' functions to enhance  public safety." 
  Marcello cited the United States Supreme Court decision in Cady v.
  Dombrowski,  413 U.S. 433, 441 (1973), where the high court upheld an
  inventory search of a vehicle under  circumstances in which the vehicle was
  disabled and constituted a nuisance on the highway, and the  driver was
  intoxicated and later comatose.  Subsequent high court decisions have
  upheld inventory  searches where a car was "lawfully impounded" after
  multiple violations of a parking ordinance and  the driver was not present
  to move it, South Dakota v. Opperman, 428 U.S. 364, 365 (1976), and  where
  a driver had been arrested and taken into custody for driving under the
  influence.  See  Colorado v. Bertine, 479 U.S. 367, 368-69 (1987).  In
  these cases, the high court expressed general  approval of the practice of
  impounding vehicles under the caretaking function in circumstances such  as
  accidents, DUI arrests, and violations of parking ordinances jeopardizing
  "the public safety and  the efficient movement of vehicular traffic,"
  Opperman, 428 U.S.  at 368-69,  where "there was no  showing that the police
  . . . acted in bad faith or for the sole purpose of investigation." 
  Bertine, 479 U.S.  at 372.  

 

       State court decisions have applied similar standards, generally
  requiring a showing that, "under  all the attendant circumstances,
  impoundment is reasonably necessary."  State v. Lunsford, 655 S.W.2d 921,
  923 (Tenn. 1983); see also State v. Goodrich, 256 N.W.2d 506, 510 (Minn.
  1977) ("The  state's interest in impounding must outweigh the individual's
  Fourth Amendment right to be free of  unreasonable searches and seizures");
  State v. Slockbower, 397 A.2d 1050, 1055 (N.J. 1979)  (impoundment of
  vehicle must be justified by "substantial necessities grounded in the
  public  safety").  In determining whether impoundment was necessary, courts
  have focused on whether  reasonable alternatives were available, such as
  whether "the vehicle can be parked and locked  without obstructing traffic
  or endangering the public," Drinkard v. State, 584 S.W.2d 650, 653  (Tenn.
  1979), whether the driver could make alternative arrangements to have the
  vehicle moved,  see, e.g., Goodrich, 256 N.W.2d  at 511 (ruling that state's
  argument for impoundment was  undermined by evidence that defendant had
  arranged to have his mother and brother drive vehicle  home), and  whether
  the owner was under arrest or otherwise incapable of driving the vehicle. 
  See,  e.g., City of St. Paul v. Myles, 218 N.W.2d 697 (Minn. 1974)
  (upholding impoundment of car and  subsequent search where owner was not
  present, and driver and passengers were under arrest).  Yet  another
  consideration is whether the circumstances suggest that the impoundment was
  "pretextual"  and effected primarily for investigative rather than public
  safety purposes.  See Slockbower, 397 A.2d  at 1056. (FN1)
     
       In several cases closely on point, courts have invalidated
  impoundments based on civil traffic  violations.  In Goodrich, for example,
  the court rejected the state's claim that impoundment was  justified by a
  registration discrepancy, observing that it "does not render impoundment
  reasonable,"  particularly where the officer did not believe that the car
  was stolen, and the driver had made  alternative arrangements for
  disposition of the vehicle.  256 N.W.2d  at 511.   In Slockbower, the  New
  Jersey Supreme Court invalidated an impoundment based on the defendant's
  driving without a  valid license, where the circumstances otherwise
  indicated that car was not disabled and could have  been safely locked and
  parked at the scene and arranged to be picked up by the owner later.  And
  in  Howe v. State, 39 S.W.3d 467 (Ark. Ct. App. 2001),  the court
  overturned the search of a vehicle  which the police had impounded based,
  in part, upon the driver's failure to produce valid proof of  insurance. 
  The court noted that a state statute authorized the police to impound the
  license plate of  an operator without insurance, and to issue a temporary
  sticker, but that no authority reasonably  supported impoundment of the
  vehicle itself.  See id. at 471-72.      

       Viewed in light of these authorities, the trial court's ruling here
  was sound.  As the court found,  and the State does not dispute,
  defendant's vehicle was effectively impounded by the State 

 

  notwithstanding the fact that it was towed to a private service station, as
  it was made clear that police  approval was required for release of the
  vehicle.  Defendant was not under arrest or otherwise unable  or
  unavailable to drive, and the vehicle was not disabled.  Defendant's
  offense -  failure to provide  proof of insurance - represented merely a
  civil traffic violation, not a crime, see 23 V.S.A. § 2302(b),  and posed
  no real danger to either defendant or to the public safety.  Finally, the
  officer's sustained  detention of defendant,  repeated efforts to obtain
  consent to search, and inconsistent conduct later  that evening in
  declining to impound another vehicle lacking a valid inspection sticker - a
  patently  more realistic threat to public safety -  raised real concerns
  about the actual purpose of the  impoundment in this case.  We thus agree
  with the trial court's conclusion that the police  impoundment of
  defendant's vehicle was unreasonable, and required suppression of the
  evidence  obtained from the resulting search.  See Lunsford, 655 S.W.2d  at
  924 (where impoundment of  vehicle was held to be wrongful, subsequent
  inventory search was without legal justification and  compelled suppression
  of resulting evidence). (FN2)

 
       Affirmed. 


			               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



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                                  Footnotes


FN1.  Recently, in State v. Mountford, __ Vt. __, 769 A.2d 639, 645 (2000),
  we observed that  "[t]he distinguishing feature of community caretaking and
  emergency assistance searches is that they  are  generated from a desire to
  aid victims rather than investigate criminals."   We went on to adopt a 
  three-part test to determine the validity of a search effected pursuant to
  the emergency assistance  doctrine: (1) there must be reasonable grounds to
  believe that there is an emergency at hand and an  immediate need for
  assistance; (2) the search must not be primarily motivated by an intent to
  arrest  and search for evidence; and (3) there must be a reasonable nexus
  between the emergency and the  area to be searched.  Although adopted in
  the "emergency assistance" context, similar requirements -  as the cases
  discussed above demonstrate -  are also reflected in decisions dealing with
  the analogous  community-caretaking exception.   

FN2.  In view of our holding, we need not address defendant's alternative
  claims that  impoundment of the vehicle violated his due process rights,
  and that the search violated his right to  privacy.