State v. Hewey, 106-81

• Decision Date: 27 December 1983
• Docket Number: No. 106-81,106-81
• Citation: 471 A.2d 236,144 Vt. 10
• Parties: STATE of Vermont v. Richard Ernest HEWEY, Jr.
• Court: Vermont Supreme Court

Page 236

471 A.2d 236

144 Vt. 10

STATE of Vermont v. Richard Ernest HEWEY, Jr.

No. 106-81.

Supreme Court of Vermont.

Dec. 27, 1983.

William E. Kraham, Windham County Deputy State's Atty., Brattleboro, for plaintiff-appellee.

Andrew B. Crane, Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

UNDERWOOD, Justice.

Defendant was charged with operating an automobile while his license was suspended, second offense. 23 V.S.A. § 674. He waived trial by jury. After a bench trial the court found him guilty as charged and sentenced him to pay a fine of $150. Defendant timely appealed the adjudication of his guilt.

Before this Court defendant raises two claims of error. First, he challenges the trial court's failure to suppress evidence of his license suspension on the grounds that such evidence was the fruit of an unlawful arrest and detention in violation of the United States Constitution. Second, defendant contends that the State failed to sustain its burden that the evidence of defendant's license suspension came from an independent source and was not the result of some illegal police conduct.

An officer of the Brattleboro Police Department observed an automobile drive past his parked cruiser during the morning hours of March 28, 1980. Because the automobile bore Vermont registration plates but had a New Hampshire inspection sticker affixed to the windshield, the officer stopped the vehicle.

He asked the driver to produce his registration and license. The defendant, who was the driver, could not produce his registration, but explained to the officer that he had bought the automobile in New Hampshire, transferred his Vermont plates to it, and sent in to the Vermont Motor Vehicle Department for a registration certificate which he had not yet received. Under Vermont law the defendant had fifteen days from the date of the registration certificate in which to have the vehicle inspected in Vermont. 23 V.S.A. § 1222.

Although the officer at that point had no reason to believe that defendant was in violation of any motor vehicle law, he told defendant he would have to run a record check on his driver's license. Defendant remained in his vehicle, and the officer returned to his cruiser where by radio he learned from the dispatcher at the Brattleboro Police Department that the defendant's license was under suspension. The officer issued a citation to the defendant for driving while under suspension. The defendant was then told he was free to leave, and apparently a passenger then drove the car.

The entire process, from the initial stop at 10:57 a.m. until the issuance of the citation at 11:11 a.m., detained the defendant a total of fourteen minutes. Five minutes involved the defendant's explanation of the discrepancy between the Vermont plates and the New Hampshire sticker, and nine minutes involved the officer's time in running the license record check and the writing up of the citation.

Defendant places great reliance upon Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), to support his position that since the officer had no probable cause or reasonable suspicion that defendant was an unlicensed motorist, after the explanation of his New Hampshire inspection sticker, he should have let him go on his way. When the officer continued to detain the defendant for the purpose of running a record check on his operator's driving license, defendant argues that under the rule of Delaware v. Prouse this constituted an impermissible intrusion into defendant's Fourth Amendment rights to privacy. He further reasons that the fruit of the poisonous tree was admitted into evidence when the trial court refused to suppress the evidence that defendant was operating a motor vehicle while his license was suspended.

Delaware v. Prouse is readily distinguished from the case at bar. In the Prouse case the police officer made a random stop of defendant's vehicle, having no probable cause or reasonable suspicion that a violation of the law was being committed. The officer admitted that prior to stopping the car he had not observed either a traffic or equipment violation nor any suspicious activity. The officer had nothing to do and so made a random stop of defendant's car to check for license and registration. While the vehicle was stopped, the officer observed marijuana in plain view inside the car. On those facts the United States Supreme Court suppressed the evidence of the marijuana, and held such a random spot check impermissible under the Fourth Amendment. The officer must have "at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered ...." in order to stop an automobile and detain the driver to check his driver's license and the registration of the automobile. Prouse, 440 U.S. at 663, 99 S.Ct. at 1401.

In the case before us the officer was not conducting a random spot check for license and registration. Defendant conceded that the officer had reasonable suspicion when he stopped the car defendant was operating because of the discrepancy between the Vermont plate and the New Hampshire inspection sticker. At the initial stop the officer asked to see defendant's license and registration. There is no challenge to the propriety of this request. Defendant could not produce a registration because he had not yet received it from the Motor Vehicle Department; the record fails to show whether or not defendant produced an operator's license.

In the first five minutes after the stop, the officer was satisfied with defendant's explanation of why he had no certificate of...