State v. Chapman, 00-442.

CourtUnited States State Supreme Court of Vermont
Citation800 A.2d 446
Docket NumberNo. 00-442.,00-442.
PartiesSTATE of Vermont v. David E. CHAPMAN.
Decision Date12 April 2002

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.



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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 103 S.Ct. 1319, 75 L.Ed.2d 229 (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, 103 S.Ct. 1319.

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,...

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