State v. Chapman

Annotate this Case

State v. Chapman (2000-442); 173 Vt. 400; 800 A.2d 446

[Filed 12-Apr-2002]

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. 2000-442

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit

David E. Chapman May Term, 2001

Michael S. Kupersmith, J.

Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall Johnson,
Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for
Defendant-Appellant.

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

SKOGLUND, J. Defendant was charged with driving while intoxicated
and a civil suspension proceeding was held pursuant to 23 V.S.A. § 1205.
He appeals the denial of his motion to suppress all statements and
evidence in his civil suspension proceeding arguing that he was subjected
to a de facto arrest without probable cause in violation of the United
States and Vermont Constitutions. In the alternative, he argues that the
stop and detention were done without reasonable and articulable suspicion
of wrongdoing, also in violation of his constitutional rights. We agree
and reverse.

The following facts are uncontested. On March 16, 2000, at
approximately 9:10 p.m., Colchester Police Officer Roy received a dispatch
that a vehicle was off the roadway near Route 7 and Poor Farm Road. The
officer arrived at that location and observed an unoccupied Ford Explorer
approximately four feet off the west side of Route 7. He also noticed a
set of footprints in the snow leading from the car and heading north along
the road for fifty to seventy-five yards. He then drove north to the
Colchester variety store, where he asked the store owner if anyone had come
to the store to report their vehicle off the road and was informed that
there had been a person at the pay phone on the side of the building just
prior to the officer's arrival. The officer found no one at the pay phone,
but did see fresh footprints at the pay phone that were similar to those he
saw leaving the Explorer. He followed the tracks to the rear of the
store, then along the rear of the building and behind an adjacent storage
building.

As the officer followed the tracks he came to a place where an off-set
in the building created a darkened nook. He saw a person's head "lean
forward and peek out" of the darkened area. At this time the officer
unholstered his gun, ordered the person to "freeze," and told him to come
out. He then ordered the person to put his hands where the officer could
see them, and turn around. The defendant testified that at this time the
officer ordered him to get down on his knees and then frisked him. The
officer testified that he did not remember ordering the defendant to his
knees and frisking him but agreed it was possible it had happened. The
officer asked defendant if he had any weapons, and the defendant answered
negatively. After holstering his gun, the officer conducted a field
interview, asked the person who he was, what he was doing behind the
building, and whether he was the proprietor of the Ford Explorer that was
off the road on Route 7. The person identified himself as defendant,
David Chapman, and stated that he had gone behind the building to urinate
and that

the Explorer was his vehicle. At this time the officer noticed an odor of
intoxicants coming from defendant. The officer then asked defendant to go
back to the police cruiser with him. There, the officer conducted field
dexterity tests and ultimately processed defendant for DUI.

We review motions to suppress de novo. State v. Graves, 170 Vt. 646,
646, 757 A.2d 462, 463 (2000) (mem.). Defendant argues that he was
subjected to a de facto arrest requiring probable cause when the officer,
with no evidence that defendant had committed a crime, drew his gun,
ordered defendant to freeze, keep his hands up, kneel down on the ground,
and then frisked him for weapons. Defendant further contends that because
the officer did not have probable cause to effect this de facto arrest,
all evidence flowing from the improper arrest should be suppressed. The
trial court did not address defendant's claim that he had been subjected
to a de facto arrest. Rather, it held the officer was authorized under
the circumstances to conduct a "brief detention," citing Terry v. Ohio,
392 U.S. 1 (1968), in order to confirm or dispel his "suspicions," and that
it was reasonable to frisk the defendant for weapons. We agree with
defendant that the interaction with the officer exceeded the bounds of a
simple investigatory detention and therefore, regardless of any purported
rationale in support of a Terry stop, rose to the level of a de facto
arrest.

We have recognized that "[a] brief detention, its scope reasonably
related to the justification for the stop and inquiry, is permitted in
order to investigate the circumstances that provoke suspicion." State v.
Lambert, 146 Vt. 142, 143, 499 A.2d 761, 762 (1985). As stated in State v.
Theetge, "[t]he threshold issue is 'whether the officer had reasonable
grounds to suspect that defendant was engaged in any wrongdoing at the
time of the encounter.' " 171 Vt. 167, 170, 759 A.2d 496, 498 (2000)
(citing State v. Sutphin, 159 Vt. 9, 11, 614 A.2d 792, 793 (1992)).

An investigative detention employs "the least intrusive means
reasonably available to verify or dispel the officer's suspicion in a
short period of time." Florida v. Royer, 460 U.S. 491, 500 (1983).
Courts have recognized, however, that an investigatory detention or Terry
stop may become "too intrusive to be classified as an investigative
detention" and may instead become the functional equivalent of a formal
arrest. United States v. Perea, 986 F.2d 633, 645 (2d Cir. 1993)
(citations omitted). "[I]f the totality of circumstances indicates that
an encounter has become too intrusive to be classified as an investigative
detention, the encounter is a full-scale arrest, and the government must
establish that the arrest is supported by probable cause." United States
v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir. 1989). "Whether an arrest
supportable by probable cause occurs, as distinct from a form of Fourth
Amendment intrusion supportable by less than probable cause, depends on the
seizure's level of intrusiveness, and on the corresponding degree of
justification required to effect each level of intrusiveness." Posr v.
Doherty, 944 F.2d 91, 98 (2d Cir. 1991). There is no bright line rule
differentiating an arrest from a detention supportable by less than
probable cause. See Royer, 460 U.S. at 506.

In assessing whether the degree of restraint is too intrusive to be
classified as an investigative detention, courts have considered a number
of factors, including:

the amount of force used by police, the need for such force, and
the extent to which the individual's freedom of movement was
restrained, . . . and in particular such factors as the number of
agents involved, . . . whether the target of the stop was
suspected of being armed, . . . the duration of the stop, . . .
and the physical treatment of the suspect . . . including whether
or not handcuffs were used.

Perea, 986 F.2d at 645 (internal citations omitted); see also Posr, 944 F.2d at 98 ("Whether a seizure is an arrest or merely an investigatory
detention, depends on the reasonableness of the level of intrusion under
the totality of the circumstances.").

Assessing the situation that confronted defendant herein, we first
address the amount of force used by the officer, starting with the drawn
weapon. The Second Circuit Court of Appeals has said "there is no hard
and fast rule concerning the display of weapons" in investigative stops.
United States v. Harley, 682 F.2d 398, 402 (2d Cir. 1982). That court has
established the following factors in determining whether the display of a
weapon by a police officer automatically converts a stop into an arrest:
(1) the nature of the crime under investigation, (2) the degree of
suspicion, (3) the location of the stop, (4) the time of day, and (5) the
reaction of the suspect on the approach of the police. See United States
v. Nargi, 732 F.2d 1102, 1106 (2d Cir. 1984). In Nargi, the court found
that under the totality of the circumstances the police had sufficient
specific and articulable facts to justify a brief police detention of
Nargi's van. Nargi argued, however, that even if the police had reasonable
grounds for detaining him, their actions in doing so were so intrusive as
to convert the investigatory stop into an arrest. Specifically, he
pointed to the fact that two of the three officers had their weapons drawn
when his van was stopped. Using the factors listed above, the court
considered that the suspected crime was a serious felony, there were solid
grounds for the officers' suspicions of large-scale marijuana trafficking,
that courts have repeatedly recognized that weapons are often used by
persons engaged in such offenses, and that the stop took place at night in
a dark, isolated part of the airport. Under these circumstances, the
court found the officers were justified in acting cautiously and having
two weapons drawn since there were articulable grounds for fearing danger.
It held that the officers' behavior did not amount to an arrest. Id.

In Perea, the court concluded that the initial stop of the cab in
which the defendant was riding was not an arrest, but rather was a lawful
Terry stop because the United States Customs Service and the United States
Drug Enforcement Agency agents, given their surveillance observations, had
a

reasonable suspicion of criminal activity. 986 F.2d at 644. Further, it
held that the fact that the officers approached with guns drawn in order
to protect themselves and bystanders on the street did not necessarily
"transmute a Terry stop into an arrest." Id. (citing United States v.
Alexander, 907 F.2d 269, 272 (2d Cir. 1990) ("law enforcement agent, faced
with the possibility of danger, has a right to take reasonable steps to
protect himself and an obligation to ensure the safety of innocent
bystanders, regardless of whether probable cause to arrest exists")).

The consistent approach to the issue of whether the use of weapons by
law enforcement during an investigative seizure transmutes a Terry stop
into an arrest, is an analysis of what level danger the suspect presented
and how reasonable the police actions were under the circumstances. "What
might be unreasonable when an officer merely suspects that a minor offense
has been committed is not unreasonable when . . . officers have reason to
fear that a suspected criminal is armed." Harley, 682 F.2d at 402.

In this case, although it was nighttime and the officer confronted the
defendant in an isolated area, there was no evidence that defendant was
suspected of serious criminal activity or of being armed, or that he
presented, in any way, a significant risk of danger to the officer.
Certainly the ability of police officers to protect themselves in
hazardous situations is crucial. However, the officer never testified
that he was facing a dangerous situation or a dangerous defendant. He was
not in pursuit of a person suspected of a serious crime - one, such as
narcotics trafficking, that has often been recognized as involving
weapons, as in Nargi. Nor was there reasonable suspicion of serious
criminal activity based on a thorough criminal investigation as in Perea.
The state is

forthright in conceding that it is not relying on the trial court's theory,
unsupported by any evidence, that the officer was investigating a possible
burglary. (FN1)

What was the basis for the officer's stop of defendant? In support of
the trial court's finding that the encounter was a brief investigatory
stop, justified by a reasonable suspicion of wrongdoing, the State
suggests on appeal that the location of the vehicle off-road and footprints
by the pay phone, similar to those sighted near the vehicle, may have
given rise to a reasonable suspicion of a traffic law violation. The
State speculates that the officer may have suspected a violation of 23
V.S.A. § 1101 which provides: "(a) No person shall stop, park or leave
standing any vehicle, whether attended or unattended, upon the paved or
main traveled part of the highway." Whether there is a violation of §
1101 when a car is four feet off the paved or main traveled part of the
highway is less important than the fact that, at the hearing on
defendant's motion to suppress, the State offered no evidence to support
this theory.

The State argues in the alternative, and for the first time on appeal,
that the officer's actions were justifiable as part of a community
care-taking function. In some circumstances, "police officers without
reasonable suspicion of criminal activity are allowed to intrude on a
person's privacy to carry out 'community care-taking' functions to enhance
public safety." State v. Marcello, 157 Vt. 657, 658, 599 A.2d 357, 358
(1991) (mem.) (quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973)).
However, there must be specific articulable facts justifying the intrusion.
State v. Burgess,

163 Vt. 259, 262, 657 A.2d 202, 204 (1995). The only support the State
offers for this theory is that there was a car off the side of the road
and the officer could have reasonably perceived its operator was in need
of assistance. Yet the State elicited no evidence from the officer in
support of this theory.

The officer's actions were not warranted by the circumstances, as
described by the evidence presented, and thus support the conclusion that
the encounter was "too intrusive" to be classified as an investigative
detention. When a person is reduced to police custody without formal
arrest that exercise of police control is treated as either unauthorized
or as a de facto arrest. See State v. Carmody, 140 Vt. 631, 636, 442 A.2d 1292, 1294 (1982). For purposes of this appeal, we find that the officer
effectuated a de facto arrest of defendant that was unsupported by
probable cause because the officer did not have a reasonable belief that
the defendant had committed or was about to commit a crime. See State v.
Caron, 155 Vt. 492, 499, 586 A.2d 1127, 1131 (1990) (probable cause to
arrest exists where facts and circumstances are sufficient to warrant a
prudent person to believe that the defendant had committed an offense);
State v. Greenslit, 151 Vt. 225, 228, 559 A.2d 672, 674 (1989) (probable
cause for arrest exists where the facts and circumstances within the
officer's knowledge are sufficient in themselves to warrant a person of
reasonable caution to believe a crime is being committed). Evidence of
defendant's intoxication was gathered during that unauthorized arrest. We
have previously invoked the exclusionary rule, a judicially created remedy
designed to safeguard Fourth Amendment rights through its deterrent
effect, in order to suppress admission at trial of unlawfully obtained
evidence, and evidence that is the fruit of unlawful police conduct. See,
e.g., State v. Laflin, 160 Vt. 198, 201, 627 A.2d 344, 346 (1993); State
v. Badger, 141 Vt. 430, 452-53, 450 A.2d 336, 349 (1982). See also State
v. Lussier, 171 Vt. 19, 33, 757 A.2d 1017, 1026 (2000)

(extending the exclusionary rule to civil suspension proceedings in order
to protect core value of privacy embraced by Chapter 1, Article 11 of the
Vermont Constitution, to promote public trust in the judicial system, and
to assure that unlawful police conduct is not encouraged). By excluding
evidence wrongfully obtained in unlawful searches and seizures, the effect
is a "tendency to promote institutional compliance with Fourth Amendment
requirements on the part of law enforcement agencies generally," in
addition to promoting compliance by individual officers who are
"penalize[d]" under the rule for Fourth Amendment violations. State v.
Oakes, 157 Vt. 171, 180, 598 A.2d 119, 125 (1991) (internal citations
omitted).

For the reasons stated above, the State's evidence against defendant,
obtained as a result of Officer Roy's de facto arrest is inadmissible. We
therefore grant defendant's motion to suppress.

Reversed.

FOR THE COURT:

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. The dissent ignores the shortcomings in the record and instead
adopts the musings of the trial judge that the officer was investigating a
burglary, notwithstanding the fact that there was no evidence offered to
support this judicial justification. The trial judge attributed to the
officer intentions that were unsupported by the officer's own testimony.
That the officer was not prompted to testify what suspicion of wrongdoing
he may have had is no fault of his own. But it does not permit the trial
court, or this Court, to engage in post hoc justifications in order to
shore up a scant record.

------------------------------------------------------------------------------
Concurring

No. 2000-442

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit

David E. Chapman May Term, 2001

Michael S. Kupersmith, J.

Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall Johnson,
Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for
Defendant-Appellant.

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

DOOLEY, J., concurring. I would hold that the denial of the motion
to suppress must be reversed, but I would avoid the controversy that has
dominated the two opinions. There is nothing more telling than an
advocate's unwillingness to support the trial court's rationale for its
decision. Here, the trial court justified its decision based on the
officer's suspicion that a burglary might be in progress. The dissent has
adopted this rationale. The State has, however, specifically stated in
its brief that it is not relying on this rationale.

The State nevertheless tries to save its conviction by positing two
alternative rationales for denying the motion to suppress. The first is
that the officer was investigating a violation of 23 V.S.A. § 1101(a),
which requires that an operator not park a vehicle "upon the paved or main

traveled part of the highway." The only evidence, however, was that
defendant's vehicle was "off the road," some four feet beyond the fog
line. I cannot accept that there was reasonable suspicion of criminal
activity based on the placement of the vehicle.

The second rationale is that the officer was acting pursuant to the
community caretaking function. Putting aside the total inconsistency
between the officer's conduct and a rationale based on helping a motorist
in distress, I would hold that this rationale disappeared once it became
clear that defendant had reached a place of safety and used the telephone.
Based on the observation of the tracks, the officer knew at that point
that it was the owner of the vehicle who used the telephone.

Because the detention of defendant cannot be justified by either
reasonable and articulable suspicion or the community caretaking function,
I would hold that it was unlawful. Because any detention was unjustified,
I cannot agree that the denial of the motion to suppress can be justified
on inevitable discovery.

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Dissenting

No. 2000-442

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit

David E. Chapman May Term, 2001

Michael S. Kupersmith, J.

Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall Johnson,
Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for
Defendant-Appellant.

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

MORSE, J., dissenting. In evaluating the reasonableness of an
investigative stop, the United States Supreme Court has counseled that
"common sense and ordinary human experience must govern over rigid
criteria." United States v. Sharpe, 470 U.S. 675, 685 (1985). The degree
of force that a police officer employs to effectuate the stop must be
proportional to the circumstances confronting the officer. See Florida v.
Royer, 460 U.S. 491, 500 (1983). Again, however, a court's evaluation
must be realistic, viewed from the perspective of the officer on the scene
rather than from the serenity of a judge's chambers. See Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir. 1973). Echoing these concerns, the
United States Supreme Court has cautioned:

A court making this assessment should take care to consider
whether the police are acting in a swiftly developing situation,
and in such cases the court should not indulge in unrealistic
second-guessing . . . . A creative judge engaged in post hoc
evaluation of police conduct can almost always imagine some
alternative means by which the objectives of the police might
have been accomplished. But '[t]he fact that the protection of
the public might, in the abstract, have been accomplished by
'less intrusive' means does not, by itself, render the search
unreasonable.' . . . The question is not simply whether some
alternative was available, but whether the police acted
unreasonably in failing to recognize or to pursue it.

Sharpe, 470 U.S. at 686-87 (quoting Cady v. Dombrowski, 413 U.S. 433, 447
(1973)).

The Court here concludes that the investigating officer employed
excessive force, thereby escalating an investigative stop into a de facto
arrest lacking in probable cause. With respect, I believe the Court has
indulged in precisely the sort of "second guessing" that the United States
Supreme Court has cautioned against. The result, I fear, is to impose on
our law enforcement officers the sort of "Hobson's Choice" condemned by
the court in United States v. Jackson, 652 F.2d 244, 249-50 (2d Cir.
1981), forcing the officer to choose between approaching a suspect with
gun holstered, thereby increasing the risk of being attacked, or drawing
one's weapon and increasing the risk that a court "will set the criminal
free by construing his action as an illegal arrest." Like the court in
Jackson, I am loath to create such a dangerous dilemma for our law
enforcement personnel. Accordingly, I respectfully dissent.

The record evidence summarized in the Court's decision amply supports
the trial court's finding that the investigating officer acted reasonably
in tracking a set of footprints from an abandoned car on Route 7 north
toward a small complex of stores. The Court does not dispute this
finding, nor indeed would any legal basis exist to challenge it. Under the
so-called "community care taking function," any reasonable officer would
be justified, if not indeed compelled, to attempt to

locate the missing driver of an abandoned vehicle parked some four feet off
the highway. See State v. Marcello, 157 Vt. 657, 658, 599 A.2d 357, 358
(1991) (mem.) (police officers may intrude on person's privacy without
reasonable suspicion of criminal activity "to carry out 'community care
taking' functions to enhance public safety") (quoting Cady, 413 U.S. at
441)).

After following a circuitous set of foot prints to the rear of the
stores, which included a gift shop closed for the evening, the officer
observed a person lean forward and peek out from behind a darkened corner
of the building. At this point, the trial court found that

the nature of the Officer's investigation changed. What had begun
as the investigation of a disabled vehicle was transformed into
the investigation of suspicious activity: it was night time, and
fresh tracks were found leading to an isolated area behind
commercial buildings. Although the Officer did not articulate
his response to the circumstances in these terms, he was
investigating the possibility of criminal activity - a possible
burglary - in progress. The Officer's suspicions were enhanced
when he found the Defendant peeking out from a darkened nook
behind the stores.

Here again, the trial court's conclusion was sound. As noted earlier,
the reasonableness of an investigative detention must be judged from the
perspective of the officer on the scene in light of the totality of the
circumstances. The officer here obviously did not know the intentions of
the individual in question, but given that he appeared to be hiding and
behaving furtively, that the hour was late, and that the building housed a
gift shop it was not unreasonable to suspect that something was amiss,
including a possible burglary or even assault. When asked why he
unholstered his revolver, the officer responded that he was acting
according to his training, and indicated that it was "for my safety and
his." (FN1) Although the officer did not testify that he also suspected a
burglary, this

is not controlling. The question is whether the circumstances objectively
suggested a reasonable suspicion of wrongdoing. See United States v.
Sokolow, 490 U.S. 1, 7 (1989); State v. Boyea, 171 Vt.401, 415, 765 A.2d 862, 872 (2000). Viewed from the perspective of a reasonable officer on
the scene, I believe they clearly did.

The same standard of reasonableness for determining the justification
of the detention applies to the officer's show of force. As the court in
United States v. Alexander, 907 F.2d 269 (2d Cir. 1990), observed: "There
are no hard and fast rules for evaluating the conduct of law enforcement
agents conducting investigative stops. . . . A law enforcement agent,
faced with the possibility of danger, has a right to take reasonable steps
to protect himself . . . . 'The officer need not be absolutely certain
that the individual is armed; the issue is whether a reasonably prudent man
in the circumstances would be warranted in the belief that his safety or
that of others was in danger.' " Id. at 272 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). When the officer here observed an unidentified
individual in the shadows behind a closed shop lean forward and peek out,
it was not unreasonable to unholster his revolver, command the individual
to come out with his hands showing, and conduct a quick pat-down search.
There was simply no way for the officer to know - in that instant -
whether the person was hiding from the officer or lying-in-wait; whether he
was alone or

had a compatriot; whether he was armed, intoxicated, or otherwise unstable.
The uncertainty and potential danger was compounded, moreover, by the fact
that it was late at night, dark, and the officer was alone and isolated.

In these circumstances, it appears to me self-evident that the officer
exercised precisely that amount of force reasonably necessary to ensure
his safety by swiftly exerting control over defendant and ascertaining his
intentions. Although he unholstered his weapon, there was no evidence that
the officer held defendant at gunpoint, or restricted his physical
movement with handcuffs or any other physical force for any length of
time. On the contrary, the officer testified without contradiction that
his weapon was holstered almost immediately, and that he proceeded to
conduct a quick pat down search of defendant and to question him about his
reasons for being there. "Without exceeding Terry guidelines, the police
may do what is necessary to command the suspect's attention and bring him
to a stop, . . . and to protect themselves and the public from unnecessary
exposure to risk of injury." Commonwealth v. Fitzgibbons, 502 N.E.2d 142,
145-46 (Mass. App. Ct. 1986). That describes precisely the nature of the
officer's actions here. Accordingly, I find no basis in the record to
support a conclusion that the officer utilized such excessive force that
it transformed the nature of the seizure from an investigatory stop into
an arrest requiring probable cause.

I would affirm the well-reasoned judgment of the trial court denying
defendant's motion to suppress. I am authorized to state that Chief
Justice Amestoy joins in this dissent.

______________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. The full text of the question and answer in this regard is as follows:

Q. Officer Roy, there's been a lot of questions about your
weapon. Why did you pull your weapon out that night?
A. Certainly my training is such that if you're following an
individual in a situation like I was, come around a corner and
have someone surprised from a darkened area, which clearly is a
place that that individual chose to put himself, I think for my
safety and his -
Q. The area was not well lit?
Mr. Stetler: Objection form of the question.
A. Relatively dark back there.
THE COURT: Overruled.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.