State v. Pierce

State v. Pierce (2001-100); 173 Vt. 151; 787 A.2d 1284

[Filed 16-Nov-2001]


       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. 2001-100


State of Vermont	                         Supreme Court

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

Adam Pierce	                                 October Term, 2001


Alan W. Cook, J.

Robert DiBartolo, Orange County Deputy State's Attorney, Chelsea, for 
  Plaintiff-Appellee.

George Ostler and Christopher A. Dall of DesMeules, Olmstead & Ostler, Norwich,
  for Defendant-Appellant.


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


       DOOLEY, J.   Defendant, Adam Pierce, appeals from the trial court's
  denial of his motion to  suppress evidence obtained by a state police
  officer when he stopped defendant's vehicle.  On appeal,  defendant argues
  that it was a violation of the Fourth Amendment to the United States
  Constitution  and of Chapter I, Article 11 of the Vermont
  Constitution (FN1) for a police officer to stop defendant in  his
  automobile and question him as a witness to another person's driving under
  the influence of  intoxicating liquor (DUI).  We affirm.

 

       After midnight, a state police officer who had just exited from the
  south lane of Interstate 91  observed a Saab automobile backing down Route
  113 towards the off-ramp of the north lane of the  interstate.  The Saab
  came to a stop side-by-side to defendant's Honda automobile, which was 
  stopped at the intersection of the off-ramp and Route 113.  The officer
  pulled his police cruiser up to  the two cars, shining his headlights on
  both of them.  He approached the Saab to question its driver  and noticed
  that she smelled of alcohol.  At this time, defendant started to drive
  away.  The officer  motioned defendant to stop and said "hold on a second,
  I want to talk to you."  The officer  approached defendant to question him
  about the possible DUI of the Saab driver.  He determined that  defendant
  also smelled of alcohol.

       Eventually, the officer processed both drivers for suspected DUI, and,
  as a result of the blood  alcohol test he administered, charged defendant. 
  In district court defendant argued that he had been  seized unlawfully and
  moved to suppress all evidence obtained in connection with his stop.  The  
  court denied his motion.  We review motions to suppress de novo.  State v.
  Graves, 170 Vt. 646,  646, 757 A.2d 462, 463 (2000) (mem.).

       The district court's ruling was as follows:

    The officer was confronted with a situation where, in the wee
    hours  of the morning, he personally observed a vehicle, namely
    the Saab,  backing the wrong way on an exit ramp.  He had good
    reason to  investigate at that point in time and find out what was
    going on.  By  the time he got to where the Saab was located, it
    was side-by-side  with the defendant's vehicle.  The defendant at
    that point was a  witness . . . .  But what they did do is they
    interviewed a witness at the  scene of the erratic behavior after
    they had determined that the  operator of the vehicle that was
    being operated in an erratic fashion  had been drinking.  It's
    routine for officers investigating an offense to  ask people at
    the scene what they saw, what they know.  And the  request to
    speak with the defendant, conceivably about what he saw  or what
    he knew, is a perfectly legitimate investigative function.  

 

    What went wrong from the defendant's perspective is when the
    officer  started speaking to him, he then smelled alcohol on the
    defendant,  and that led to the chain of events resulting in the
    processing.  But I  think under the chain of events portrayed
    here, the officer had every  right to speak with the defendant and
    determine what he knew, if  anything, about what was going on with
    the operator of the Saab  vehicle.

  After making that ruling and in response to a specific request by
  defendant, the court went on to rule  that the officer had not seized
  defendant for purposes of the Fourth Amendment.

       On appeal, defendant argues that the officer's conduct constituted a
  seizure under the Fourth  Amendment to the United States Constitution and
  Chapter I, Article 11 of the Vermont Constitution  and that seizure was
  unlawful because the officer did not have a reasonable and articulable
  suspicion  that defendant himself had committed or was about to commit any
  crime.

       We agree that the officer's conduct constituted a seizure.  Normally a
  seizure occurs when,  under the totality of the circumstances, a reasonable
  person would not believe he was at liberty to  leave or to decline to
  answer the officer's questions.  See State v. Lancto, 155 Vt. 168, 171, 582 A.2d 448, 449 (1990); see also State v. Theetge, 171 Vt. 167,169, 759 A.2d 496, 498 (2000) (quoting  State v. Burgess, 163 Vt. 259, 263, 657 A.2d 202,
  204 (1995) (Dooley, J., dissenting)) (seizure  occurs when the officer's
  conduct "would signal to a reasonable person that the officer is attempting 
  to seize the person for investigative purposes").  In this case, the
  officer signaled defendant to stop  his vehicle after defendant had already
  begun to drive away.  Even though he had not activated the  cruiser's blue
  lights, the officer did tell the defendant verbally and by gesturing that
  he was not free to  leave.  Furthermore, the officer's headlights were
  pointed directly at defendant and the driver of the  Saab.  These facts are
  sufficient to constitute a seizure of defendant.  See Burgess, 163 Vt. at
  261, 

 

  657 A.2d  at 203 ("A show of authority tending to inhibit a suspect's
  departure from the scene is  sufficient to constitute a stop . . . .").

       The conclusion that a seizure occurred does not end our inquiry. 
  Theetge, 171 Vt. at 170,  759 A.2d  at 498.  The Fourth Amendment prohibits
  only unreasonable seizures.  See State v. Gray,  150 Vt. 184, 191, 552 A.2d 1190, 1194-95 (1988).  We have recognized that a brief seizure is 
  justified if the officer has a reasonable and articulable suspicion that
  the defendant is engaged in  criminal activity.  Theetge, 171 Vt. at 170,
  759 A.2d  at 498.  This does not mean, however, that  suspicion of criminal
  conduct is the only possible justification for a seizure.  Indeed, we have 
  recognized in other contexts that a seizure can be reasonable even in the
  absence of such suspicion.   See State v. Marcello, 157 Vt. 657, 658, 599 A.2d 357, 358 (1991) (officer acting pursuant to  community caretaking
  function); State v. Martin, 145 Vt. 562, 568, 496 A.2d 442, 446 (1985) (DUI 
  roadblock).

       The state argues, and the district court held, that it was reasonable,
  and consistent with the  Fourth Amendment, for an officer to question a
  witness to a crime.  Although we have not had the  occasion to address this
  issue, the few decisions from other jurisdictions that are based on facts 
  similar to those before us agree with this position.  See generally 4 W.
  LaFave, Search and Seizure:  A Treatise on the Fourth Amendment § 9.2(b),
  at 25-26 (3d ed. 1996).  The question of whether a  seizure is reasonable
  involves a weighing of the public interest served by the seizure against
  the  degree of intrusion into personal privacy caused by the seizure. 
  State v. Martin, 145 Vt. at 568, 496 A.2d  at 496-97.  We agree that under
  some circumstances the balance tips in favor of allowing law  enforcement
  officers to briefly stop a potential witness to a crime to obtain
  information even though  the witness is not suspected of criminal conduct.

 

       We stress, as we did with respect to DUI roadblocks first in State v.
  Martin and then in State  v. Record, 150 Vt. 84, 548 A.2d 422 (1988), that
  this is not an issue that lends itself to per se rules.   We must judge
  each situation individually while attempting to set forth factors or
  criteria to be  considered.  See Martin, 145 Vt. at 571, 496 A.2d at
  446-47; Record, 150 Vt. at 87, 548 A.2d  at 424-25.  LaFave suggests we
  draw criteria from § 110.2 of the American Law Institute, Model Code of 
  Pre-Arraignment Procedure (1975), an approach recently adopted in  People
  v. Hernandez, 679 N.Y.S.2d 790, 794 (Sup. Ct. 1998).  As suggested by
  LaFave, the Model Code authorization of  seizure of witnesses is narrower
  than the authorization of seizure of those suspected of committing a 
  crime.  See 4 W. LaFave, supra, § 9.2(b), at 24.  It allows seizure by "an
  officer coming on the scene  of a recently committed crime to 'freeze' the
  situation and obtain identification and an account of the  circumstances
  from the persons present."  American Law Institute, Model Code of
  Pre-Arraignment  Procedure § 110.2, Note, at 9.

       The Model Code provides that an officer may order a potential witness
  to remain in the  officer's presence for a reasonable period to answer
  questions when three criteria are met:

         (i) [t]he officer has reasonable cause to believe that a
    misdemeanor  or felony, involving danger of forcible injury to
    persons or of  appropriation of or danger to property, has just
    been committed near  the place where he finds such person, and
         (ii) the officer has reasonable cause to believe that such
    person has  knowledge of material aid in the investigation of such
    crime, and 
         (iii) such action is reasonably necessary to obtain or verify
    the  identification of such person, or to obtain an account of
    such crime.

  Id. § 110.2(1)(b), at 5-6.  People v. Hernandez is a good example of a
  court applying the Model Code  criteria to resolve whether a seizure met
  the requirements of the Fourth Amendment.  In Hernandez,  an officer
  stopped a truck, matching the description of a vehicle which witnesses
  reported contained 

 

  other witnesses and/or victims of a shooting.  The officer had no names of
  the occupants of the truck  and stopped it within ten minutes of the crime. 
  The truck contained two passengers, including  defendant, as well as a gun
  and a quantity of cocaine.  The court found that each of the three criteria 
  set out in § 110.2(1)(b) were met and concluded that the seizure of the
  truck was lawful.  Id. at 795.

       We recognize that § 110.2(1)(b) of the Model Code has not been adopted
  as statutory law in  Vermont.  We find, however, that the criteria employed
  in the section are useful in striking the  proper balance to determine the
  lawfulness of the seizure of a witness.  Accordingly, we apply the 
  criteria in this case.

       Looking at the first criterion, we believe that DUI is an offense that
  involves a danger of  "forcible injury to persons."  See State v. Boyea,
  ____ Vt. ____, ____, 765 A.2d 862, 867 (2000)  (DUI driver "is not at all
  unlike a 'bomb,' and a mobile one at that"); State v. Lamb, 168 Vt. 194,
  199,  720 A.2d 1101, 1104 (1998) ("The alleged offense here, driving while
  intoxicated, presented a  substantial and immediate risk of death or
  serious injury to both the driver and anyone unlucky  enough to get in his
  way");  Record, 150 Vt. at 89, 548 A.2d  at 426; Martin, 145 Vt. at 569, 496 A.2d   at 447 ("The problem of drunk drivers has long been, and continues to
  be, a serious threat to public  safety.").  In this case, the possible DUI
  was accompanied by driving that appeared to violate rules of  the road. 
  See  23 V.S.A. §§ 1101(a) (person shall not leave standing a vehicle,
  attended or  unattended, upon the "main-traveled part of the highway");
  1113(a) (unsafe backing prohibited).   Based on his observation of her
  erratic driving and her signs of intoxication, the officer had  reasonable
  cause to believe that the operator of the Saab automobile was driving under
  the influence  of intoxicating liquor.

 

       Similarly, the circumstances met the second criterion.  Defendant had
  the perfect vantage  point from which to observe the erratic operation of
  the Saab.  It was reasonable to believe that  defendant and the driver of
  the Saab knew each other so that defendant would have knowledge of  whether
  the Saab driver had consumed alcoholic beverages.  The officer testified
  that he stopped  defendant to obtain information about the Saab driver. 
  Thus, we conclude that the officer had  reasonable cause to believe that
  defendant had knowledge of material aid in the investigation of  whether
  the Saab driver was driving under the influence.

       Finally, we conclude that the third criterion was met.  Perhaps, this
  is the closest question in  examining the criteria because in most cases
  the officer will be able eventually to identify the driver  and other
  occupants of a vehicle through the license number.  Nevertheless, the
  license number will  not always allow identification of the occupants of a
  vehicle, and a very brief stop will produce that  identification. 
  Moreover, the operator, in this case defendant, was a resident of a
  different state, and  it may not be as easy for the officer to obtain
  information in another jurisdiction.  Finally, a fresh  witness account was
  desirable because the officer had to make immediate decisions about how to 
  handle the situation before him, and he had not yet been able to administer
  any roadside tests to the  Saab operator that might confirm or undermine
  his initial impression of her sobriety.

       On this criterion, we emphasize that we are looking only at the
  justification for initial  communication with the potential witness, a very
  limited interference with the witness's privacy and  freedom of movement,
  because defendant's intoxication became apparent immediately.  It may be 
  that the circumstances would not have supported an extended stop or a
  detailed inquiry.  We leave  that question to another day.

 


       We conclude that the brief seizure of defendant and his vehicle was
  reasonable in the  circumstances of this case in order to enable the
  officer to identify, and briefly question, a likely  witness to a DUI.  The
  district court properly refused to suppress the evidence of defendant's 
  intoxication.
           
       Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Defendant has cited Article 11, but has offered no reason why the
  result under Article 11  should be different from that under the Fourth
  Amendment.  Accordingly, we have not separately  considered the Article 11
  claim.