State v. Freeman

State v. Freeman  (2003-260); 177 Vt. 478; 857 A.2d 295

2004 VT 56

[Filed 10-Jun-2004]


                                 ENTRY ORDER

                                 2004 VT 56

                      SUPREME COURT DOCKET NO. 2003-260

                              APRIL TERM, 2004

  State of Vermont                  }     APPEALED FROM:
                                    }
                                    }
       v.                           }     District Court of Vermont,
                                    }     Unit No. 3, Washington Circuit
                                    }     
  Jennifer Freeman                  }
                                    }     DOCKET NO. 166-11-01 Wncs
 
                                          Trial Judge: M. Patricia Zimmerman

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

       ¶ 1     Defendant Jennifer Freeman appeals from the trial court denial
  of her motion to suppress evidence in a civil license suspension
  proceeding.  Defendant claims that the trial court erred in admitting
  evidence obtained after the arresting officer ordered defendant to exit her
  vehicle because the officer lacked reasonable suspicion of wrongdoing
  sufficient to support the order.  We affirm.

       ¶ 2     On November 25, 2001, at approximately 3:13 a.m., Vermont
  State Trooper Trevor Carbo was driving behind defendant's vehicle when he
  observed the vehicle crossing the center line while in a right curve on the
  roadway.  The car invaded the oncoming traffic to the point that the
  passenger side tires were on the center line.  This was done while another
  vehicle was approaching from the opposite direction.  The trooper stopped
  defendant and requested her license and registration.  The trooper informed
  defendant that she had crossed the center line, which defendant explained
  as a momentary distraction while reaching for her cellular phone.  The
  roadside conversation lasted a little over a minute.  Trooper Carbo then
  asked defendant to exit the vehicle and come back to his cruiser as he
  intended to issue her a written warning for crossing the center line.  Once
  in the cruiser, defendant acknowledged that she had been drinking earlier
  that evening.  During this conversation, the trooper made certain
  observations which were consistent with defendant being under the influence
  of alcohol.  The trooper then proceeded to administer field sobriety tests
  and a roadside preliminary breath test.  Based on the results, defendant
  was arrested and processed for DUI.  She submitted to a Datamaster breath
  test, which indicated a BAC of .136%.  She was given a notice of intention
  to suspend her license and a citation to appear for arraignment. 

       ¶ 3     In the license suspension hearing, defendant moved to suppress
  evidence obtained after the trooper told defendant to exit the vehicle,
  alleging that the evidence was illegally procured.  Defendant claimed that
  it was apparent from the videotape that captured the stop that defendant
  did not exhibit any signs of intoxication during the brief conversation
  prior to the exit order.  Thus, according to defendant, the order
  constituted an unlawful seizure because the trooper acted without
  reasonable suspicion sufficient to expand the scope of the initial
  detention. 
        
       ¶ 4      Trooper Carbo's testimony on direct examination
  contradicts defendant's assertions.  According to the trooper, he had been
  able to observe signs of defendant's intoxication prior to the exit order. 
  The trooper testified that during the conversation with defendant he
  perceived a faint odor of alcohol, and noticed that defendant's speech
  seemed slow and slightly slurred, her eyes bloodshot and watery, and her
  motor skills slow.  Trooper Carbo stated that defendant seemed somewhat
  confused.  Based upon these observations, the trooper determined defendant
  had consumed "a considerable amount" of alcohol.  The cross examination of
  Trooper Carbo focused on the videotape of the stop, where it is difficult
  to corroborate the trooper's assertions regarding defendant's speech.  On
  direct, the trooper was asked why had he told defendant to leave her car
  and sit in the cruiser while he issued a written warning.  The trooper
  explained that, because people are not comfortable about leaving their
  cars, "I try and kind of set them at ease that basically I'm going to give
  you a written warning. . . . It makes things go smoother."  On cross
  examination, however, the trooper acknowledged that he generally liked to
  bring people back to his cruiser so that he could better search for signs
  of intoxication.

       ¶ 5     The hearing court denied the motion because it found that
  Trooper Carbo had a reasonable and articulable suspicion that defendant was
  intoxicated, which justified asking defendant to exit her vehicle.  The
  court distinguished this case from State v. Sprague, 2003 VT 20, ¶ 22, 175
  Vt. 123, 824 A.2d 539, noting that in that case defendant was required to
  exit the vehicle without reasonable suspicion that defendant was engaged in
  wrongdoing or posed any objective danger to the safety of the officer or
  others.  After reviewing the tape, the court conceded that it was difficult
  to corroborate the trooper's observations because "obviously the Court
  doesn't see [defendant's] eyes nor can the Court see [defendant's] motor
  movements within the car."  Although the court agreed with defendant that
  defendant's speech on the tape does not appear extremely slurred, it noted
  that this fact is consistent with the trooper's DUI processing form
  affidavit, where he checked the box for "slurred speech" and wrote in "very
  slight."  The court stated that it would not "substitute its judgment in a
  hypertechnical way as we are able to do with the technology in the tape and
  assess Trooper Carbo's testimony in increments of one or two seconds."

       ¶ 6     On appeal, defendant reiterates her argument that pursuant to
  Sprague, the trooper did not have a reasonable suspicion of wrongdoing. 
  Defendant points out that Trooper Carbo admitted to routinely asking
  motorists to get into his cruiser to put himself in a better investigatory
  posture than a driver's side conversation would allow, thus suggesting that
  all evidence of defendant's intoxication was obtained in this manner. 
  Defendant claims that the videotape contradicts the trooper's testimony
  that defendant's speech was slurred or confused, and further contends that
  because the trooper conceded that he did not fill in the DWI affidavit
  until he got back to the barracks, it is impossible to determine whether
  the trooper's detection of  intoxication signs occurred before or after the
  exit order.  

       ¶ 7     This Court has recently adopted a two-step approach for
  reviewing motions to suppress.  See State v. Lawrence, 2003 VT 68 ¶¶ 8-9,
  834 A.2d 10.   As we explained in Lawrence, the review of a motion to
  suppress involves a mixed question of law and fact, that is, "whether the
  factual findings supported by the record lead to the conclusion, that, as a
  matter of law, suppression of evidence was or was not necessary."  Id. at ¶
  9.  Recognizing that the trial court is in a better position to determine
  the weight and sufficiency of the evidence presented, this Court applies a
  clearly erroneous standard to the trial court's finding of historical
  facts.  Id.  If the trial court's findings are not clearly erroneous, we
  will then review the legal issues, such as the reasonableness of a seizure,
  de novo.  Id. at ¶ 8.

       ¶ 8     In its finding of facts, the trial court gave great weight to
  Trooper Carbo's testimony. The court noted that the trooper had been with
  the Vermont State Police for over two years, and that prior to that had
  been a police officer with the Montpelier Police Department for
  eight-and-a-half years.  The court also pointed out that Trooper Carbo has
  processed "over a couple of hundred DUI cases."  In essence, the court
  refused to substitute its judgment of the events captured in the tape for
  the trooper's testimony, which the court found credible.  Given the
  inherent difficulty in evaluating demeanor, mannerisms, and tone of voice,
  in addition to the quality of testimony itself, we defer to the
  factfinder's determination of the credibility of the witness, and the
  persuasive effect of his testimony.  See State v. Hagen, 151 Vt. 64, 65,
  557 A.2d 493, 494 (1989).  Relying on that testimony, the court found that
  prior to the exit order the trooper observed defendant's vehicle cross the
  center line in the face of oncoming traffic, smelled an odor of intoxicants
  coming from the car, observed that defendant's speech was slightly slurred,
  and noted that her eyes were watery and bloodshot and did not appear to
  focus.  Those findings are supported by the record and are not clearly
  erroneous.

       ¶ 9     Whether the trial court erred in holding that the exit order
  was reasonable under the circumstances is the legal question that we review
  de novo.  An order to exit one's vehicle after the initial investigatory
  stop is a further seizure within the meaning of Chapter I, Article Eleven
  of the Vermont Constitution.  State v. Jewett, 148 Vt. 324, 330, 532 A.2d 958, 961 (1987).  In Sprague, we explained that "[t]he facts sufficient to
  justify an exit order need be no more than an objective circumstance that
  would cause a reasonable officer to believe it was necessary to protect the
  officer's, or another's, safety or to investigate a suspected crime." 
  Sprague, 2003 VT 20, at ¶ 20.  In Sprague, we held that the record evidence
  in that case provided no objective basis for ordering defendant to leave
  his vehicle because the officer could not articulate any safety concerns or
  any suspicion of a criminal offense that required further investigation. 
  Id. at ¶ 22.  Here, however, Trooper Carbo adduced objective facts that
  justified his suspicion that defendant was driving under the influence; it
  was thus reasonable to require her to leave to vehicle to conduct further
  investigation.  The trial court's denial of defendant's motion to suppress
  was not error.

       Affirmed.



       BY THE COURT:



  _______________________________________
  Jeffrey L. Amestoy, Chief Justice

  _______________________________________
  John A. Dooley, Associate Justice
  
  _______________________________________
  Denise R. Johnson, Associate Justice

  _______________________________________
  Marilyn S. Skoglund, Associate Justice

  _______________________________________
  Frederic W. Allen, Chief Justice (Ret.),
  Specially Assigned