State v. Hayes

• Citation: 154 A.3d 964
• Decision Date: 09 September 2016
• Docket Number: No. 15-420,15-420
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. Lenore HAYES

154 A.3d 964

STATE of Vermont

v.Lenore HAYES

No. 15-420

Supreme Court of Vermont.

September 9, 2016

Franklin L. Paulino, Chittenden County Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Jessica Burke of Burke Law, P.C., Burlington, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

SKOGLUND, J.

¶ 1. Following her conditional plea of guilty to a charge of driving while intoxicated (DWI), second offense, defendant appeals the superior court's denial of her motions to suppress evidence from the vehicle stop and dismiss the case. She argues that there was no reasonable basis for the stop and that, in any event, all evidence should have been suppressed due to the arresting officer's failure to produce a complete video recording of the stop. We affirm.

¶ 2. Shortly before midnight on January 17, 2015, a Town of Richmond police officer stopped defendant's vehicle. The officer eventually had defendant exit the vehicle to perform field sobriety tests and provide a preliminary breath test sample, which revealed a blood-alcohol concentration (BAC) of 0.135%. The officer then arrested defendant and transported her to the Richmond police station, where she was processed for DWI. After consulting with an attorney, defendant agreed to provide a breath sample, which the Datamaster infrared device analyzed as containing a BAC of 0.127%. Defendant exercised her right to a second test, which revealed a BAC of 0.133%. Defendant also obtained a test kit for an independent blood test.

¶ 3. Defendant was charged with DWI, second offense. She filed a motion to suppress and dismiss, arguing that the stop of her vehicle was unconstitutional because the arresting officer lacked any reasonable suspicion of her having committed a crime or violated any traffic law. Later, she filed a second motion to suppress and dismiss, this time arguing that the State failed to provide her with an uncorrupted video recording of the stop. See 23 V.S.A. § 1203(k) ("A copy of a videotape made of the alleged offense shall be provided to the defendant within ten days after the defendant requests the copy and pays a $45.00 fee for its reproduction."); see also V.R.C.P. 80.5(e) ("A copy of a videotape made of the alleged offense and subsequent processing shall be available for purchase by the defendant directly from the law enforcement agency responsible for initiating the action ...."); V.R.Cr.P. 16(e) (same). At an April 8, 2015 hearing on the latter motion, the Chittenden Unit of the Superior Court's Criminal Division dismissed the civil suspension of defendant's driver's license based on a standing order in that court with respect to the government's failure to produce a requested copy of a video recording. The court ruled, however, that whether the criminal case should be dismissed warranted further review under the factors set forth in State v. Bailey, 144 Vt. 86, 94–95, 475 A.2d 1045, 1050 (1984), for cases involving lost or undisclosed evidence.

¶ 4. At a later status conference it was revealed that only approximately seven minutes of the recording of the stop could be viewed because the arresting officer had not flipped a toggle switch that would have continued the recording after his cruiser's blue lights were turned off.

¶ 5. A hearing in the criminal matter was held on June 25, 2015. Following the hearing, defendant renewed her motion to dismiss, arguing that if the court concluded that the arresting officer was negligent in not preserving a recording of the stop, it must undertake a Bailey analysis. See State v. Porter, 2014 VT 89, ¶ 29, 197 Vt. 330, 103 A.3d 916 (stating that although "police do not have a duty to collect all evidence that could potentially favor the defense," there could be situations where negligent conduct by police was sufficiently prejudicial to defendant to warrant sanctions, in which case, "the Bailey test is an adequately flexible method to determine the appropriate sanction").

¶ 6. On July 28, 2015, the superior court denied defendant's renewed motion to dismiss, ruling that while the arresting officer was negligent in not preserving a complete video recording of the stop, the Bailey factors did not favor defendant because the recording would most likely not have revealed exculpatory evidence. See Bailey, 144 Vt. at 94–95, 475 A.2d at 1050 (stating that if defendant shows reasonable possibility that missing evidence would have been favorable to defendant, court must balance (1) degree of negligence or bad faith by government, (2) importance of lost evidence, and (3) other evidence of guilt adduced at trial). Moreover, the court noted that although defendant provided a breath sample within two hours of operation that revealed a BAC well in excess of the legal limit, because she later obtained a test kit for an independent blood test she would have an opportunity at trial to challenge the breath test result.

¶ 7. On September 21, 2015, the superior court held a hearing to consider both defendant's original motion to suppress and dismiss, in which she argued that there was no reasonable basis for the stop of her vehicle, as well as her motion to reconsider the court's July 28 decision. Once again, the arresting officer was the sole witness at the hearing. Two days after the hearing, the superior court issued a ruling denying defendant's motions. The court ruled that none of the "three missteps" by defendant while operating her vehicle individually constituted a traffic violation, but that the combination of those actions indicated defendant was not driving attentively and thus justified the officer stopping her vehicle based on a reasonable suspicion that she might be intoxicated. Further, the court denied defendant's motion to reconsider its July 28 order in light of its conclusion that the stop had in fact been lawful.

¶ 8. On appeal, defendant argues that, pursuant to the criteria set forth in Bailey, evidence from the stop should be suppressed and the case dismissed. She also argues that there was no reasonable basis for the stop. In reviewing a denial of a motion to suppress, we will uphold the trial court's findings as long as they are supported by evidence, but we review de novo whether the facts meet the proper standard to justify a stop. State v. Rutter, 2011 VT 13, ¶ 6, 189 Vt. 574, 15 A.3d 132 (mem.).

¶ 9. "A legal investigatory stop is justified if a police officer has a reasonable and articulable suspicion of criminal activity." State v. Pratt, 2007 VT 68, ¶ 5, 182 Vt. 165, 932 A.2d 1039 (citation omitted). Reasonable and articulable suspicion requires "more than an unparticularized suspicion or hunch of criminal activity, but ... considerably less than proof of wrongdoing by a preponderance of the evidence." Id. (quotation omitted). "Reasonable suspicion is assessed by examining the totality of the circumstances" while "balancing the public's interest in safety against the relatively minimal intrusion posed by a brief investigative detention." Id. (quotation omitted). We have held that "[r]easonable and articulable suspicions of motor-vehicle violations are sufficient to justify traffic stops." State v. Harris, 2009 VT 73, ¶ 3, 186 Vt. 225, 980 A.2d 785. "As such, we have upheld investigatory stops for suspicion of DUI based on erratic driving." Pratt, 2007 VT 68, ¶ 5, 182 Vt. 165, 932 A.2d 1039. The relevant question is not whether a motor vehicle violation actually occurred, but rather only "whether the officer had a reasonable basis to suspect that a motor vehicle violation was taking place." Rutter, 2011 VT 13, ¶ 10, 189 Vt. 574, 15 A.3d 132.

¶ 10. Defendant asserts that the stop here could not have been supported by reasonable suspicion because the superior court found no traffic violations and the arresting officer did not allege in his affidavit that he stopped her vehicle based on his suspicion of a possible DWI. As noted above, however, the question is not whether there was actually a traffic violation but rather whether the arresting officer had an objectively reasonable belief that there was a traffic violation. Moreover, we have reiterated "that an officer's subjective intent for stopping a defendant's car is not relevant as long as there is an objectively reasonable basis for the stop." Id.¶ 15. Id. ¶ 16 (concluding "that the protections of Article 11 do not extend to prohibiting law enforcement officers from stopping motor vehicles where there is an objectively reasonable suspicion that a motor vehicle violation has occurred, even if in a particular situation these infractions may appear ‘trivial’ or the officer's motivation is suspect"); see also State v. Lussier, 171 Vt. 19, 23–24, 757 A.2d 1017, 1020 (2000) ("In determining the legality of a stop, courts do not attempt to divine the arresting officer's actual subjective motivation for making the stop; rather, they consider from an objective standpoint whether, given all of the circumstances, the officer had a reasonable and articulable suspicion of wrongdoing.").

¶ 11. In this case, the arresting officer testified that he observed defendant nearly hit another car while exiting a store parking lot when she failed to yield the right of way to the other car pulling into the parking lot. He stated that the operator's lack of attention or due regard aroused his suspicion as to her condition, so he followed the vehicle after it left the parking lot. He testified further that, in following the vehicle, he observed that at one point during a left-hand turn the vehicle crossed over the fog line and kicked up dirt along the shoulder of the road, and at another point during a right hand turn the headlights were turned off for a couple of seconds.

¶ 12. Taken together, defendant's actions were sufficient to create a reasonable and articulable suspicion that defendant may have been driving impaired. Cf. State v. Bruno, 157 Vt. 6, 11, 595 A.2d 272, 275 (1991) (concluding that arresting officer's observations of defe...