State v. Boyea

• Decision Date: 01 December 2000
• Docket Number: No. 99-061.,99-061.
• Citation: 765 A.2d 862
• Parties: STATE of Vermont v. Vicki BOYEA.
• Court: Vermont Supreme Court

765 A.2d 862

STATE of Vermont v. Vicki BOYEA.

No. 99-061.

Supreme Court of Vermont.

December 1, 2000.

Paul Finnerty, Washington County Deputy State's Attorney, Barre, for Plaintiff-Appellee.

Robert Appel, Defender General, and Henry Hinton, Appellate Attorney, Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, J.

To appreciate the realities underlying today's decision, consider the following alternative scenarios based upon the record evidence. Having received a State Police radio dispatch—derived from an unnamed informant—reporting a specifically described vehicle with New York plates traveling in a certain direction on I-89 operating "erratically," a police officer locates the car, observes it exit the highway, and pulls out in pursuit. The officer catches up with the vehicle within minutes, but then faces a difficult decision. He could, as the officer here, stop the vehicle as soon as possible, thereby revealing a driver with a blood alcohol level nearly three times the legal limit and a prior DUI conviction. Or, in the alternative, he could follow the vehicle for some period of time to corroborate the report of erratic driving. This could lead to one of several endings. The vehicle could continue without incident for several miles, leading the officer to abandon the surveillance. The vehicle could drift erratically—though harmlessly—onto the shoulder, providing the corroboration that the officer was seeking for an investigative detention. Or, finally, the vehicle could veer precipitously into oncoming traffic, causing an accident.

These are not improbable scenarios. Sooner or later, depending upon the outcome of this case, one or all of them could occur. The dissenting Justices would hold that the constitutional right to privacy leaves the officer no choice but to wait, at whatever risk to the driver and the public. We are not persuaded that the Constitution compels this result. Rather, an anonymous report of erratic driving must be evaluated in light of the imminent risks that a drunk driver poses to himself and the public. We hold that, on the facts of this case, the officer's expeditious stop of the vehicle was based upon sufficiently reliable information, notwithstanding the absence of any personal observation of incriminating behavior by the driver. Accordingly, we affirm.

The undisputed facts were as follows. On July 18, 1998, at approximately 3:00 p.m., a Vermont state trooper received a radio dispatch of a "blue-purple Volkswagen Jetta with New York plates, traveling south on I-89 in between Exits 10 and 11, operating erratically." The officer, who was patrolling nearby, parked his cruiser in the median just north of Exit 10 to wait for the vehicle. Within five minutes, the officer spotted a purple Volkswagen Jetta with New York plates traveling south on I-89. The officer observed the vehicle turn off the interstate at Exit 10, and immediately pulled out to follow. The officer lost sight of the vehicle after it exited, but regained visual contact as it turned onto Route 2, and caught up with it shortly thereafter. The officer activated his blue lights, and the vehicle pulled over. Based upon his subsequent observations, the officer arrested defendant for DUI. The trial court denied a motion to suppress, and defendant entered a conditional plea of guilty to DUI, second offense. This appeal followed.

Defendant contends that, because nothing the officer observed during the mile and a half that he "followed" defendant confirmed the anonymous report of erratic driving, the officer lacked a reasonable and articulable suspicion to justify the stop. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Crandall, 162 Vt. 66, 70, 644 A.2d 320, 323 (1994). It is worth observing, at the threshold, that it is inaccurate to suggest the officer here was somehow trailing defendant waiting for her to give some overt sign of intoxication. In fact, the record shows, and the trial court found, that the officer had visual contact with defendant for only a portion of the short time that he pursued her, and that he effectuated the stop immediately after he caught up with her. This was not an officer seeking independent verification that a driver was intoxicated, but rather one intent upon catching and stopping as soon as practically possible a driver whom he already suspected of being under the influence.

It is important to understand these factual nuances to better appreciate the stark legal issue they present. It is an issue which this Court recently considered, albeit indirectly, in State v. Lamb, 168 Vt. 194, 720 A.2d 1101 (1998), and which numerous other courts have directly addressed in recent years. May a police officer acting upon an anonymous tip that accurately describes a vehicle, accurately predicts its route and location upon the highway, and indicates that it is behaving in a fashion indicative of drunk driving, reasonably detain the vehicle without personally observing some indicia of intoxication? Or, alternatively, must the officer wait to observe some incriminating behavior, however that might threaten the driver's or the public's safety, before stopping the vehicle to investigate?

Confronted with this precise issue, a majority of courts have concluded that failing to stop a vehicle in these circumstances in order to confirm or dispel the officer's suspicions exposes the public, and the driver, to an unreasonable risk of death or injury. Indeed, we relied upon many of these decisions in Lamb, observing that "[t]he potential risk of harm to the defendant and the public is widely acknowledged to be a critical factor in assessing the reasonableness of an investigatory stop." 168 Vt. at 199,720 A.2d at 1104.¹ After reviewing several cases involving deadly weapons, we concluded that "[t]he principle . . . that the gravity of the risk of harm must be considered in evaluating the reasonableness of the investigatory stop. . . applies with equal force to intoxicated driving." Id. at 200, 720 A.2d at 1105.²

We then proceeded to cite with approval a series of cases upholding brief investigative motor-vehicle stops based upon an anonymous tip of erratic or drunk driving. The first decision we discussed was State v. Melanson, 140 N.H. 199, 665 A.2d 338 (1995). There, as here, a police officer received a report from a dispatcher relaying information from an anonymous informant about a vehicle on the highway. The information conveyed "an exact description of the vehicle, the vehicle's current location and direction of travel, and a description of prior erratic driving." Id. at 341. Based upon this information, the officer located the vehicle, activated his lights, and stopped the vehicle, resulting in the driver's arrest for DUI. The officer observed no erratic behavior prior to activating his lights. Id. at 339.

In assessing the validity of the stop, the New Hampshire court recognized the settled principle that reasonable suspicion to undertake a brief investigative detention "`is a less demanding standard than probable cause not only in the sense that [it] can be established with information that is different in quantity of content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.'" Id. (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)) (alteration in original); see also Lamb, 168 Vt. at 196, 720 A.2d at 1102 (reasonable suspicion is less demanding standard than probable cause, and need not be based upon officer's personal observation). To assess the reliability of information received from an anonymous informant, the court considered three factors: the nature and specificity of the information conveyed; the extent of corroboration by the officer; and the urgency of effectuating a stop in the circumstances.

As to the nature of the information, the court noted that it contained a specific description of the car, its exact location at a moment in time, and its direction and prior movements, all of which "reasonably support[ed] a conclusion that the caller had personally observed the vehicle." Melanson, 665 A.2d at 340. Next, the court noted that the officer was able to determine within a few minutes of the call that the informant had accurately described the vehicle and its current location and direction, "support[ing] the complainant's credibility" and "the officer's conclusion that the informant had actually observed the reported behavior." Id.

Finally, the court recognized that "the officer faced the potential of a dangerous public safety hazard." Id. Unlike a situation where the information concerns the transportation of controlled substances, and the officer could safely observe the defendant to obtain additional incriminating information,

here failure quickly to stop the defendant's vehicle in order to confirm or dispel the officer's suspicions could have exposed the public as well as the defendant herself to the danger of an impaired driver. The officer's ability to observe incriminating behavior, therefore, was limited by the exigency of the situation.

Id. (emphasis added).

In addition to the ruling by the New Hampshire court, Lamb also relied on the Kansas decision in State v. Tucker, 19 Kan.App.2d 920, 878 P.2d 855 (1994), which again presented the scenario of an officer responding to a radio dispatch based upon an anonymous report of erratic driving. The caller described the vehicle, its location on the highway, and direction of travel. The officers located the car, followed a short distance, and—despite having observed no erratic driving—made an investigative stop which led to a DUI arrest. Applying an analysis similar to that in Melanson, the court observed that the anonymous tip suggested some firsthand knowledge, was...