State v. Jewett

• Decision Date: 26 June 1987
• Docket Number: No. 83-478,83-478
• Citation: 148 Vt. 324,532 A.2d 958
• Parties: STATE of Vermont v. Raymond A. JEWETT.
• Court: Vermont Supreme Court

Page 958

532 A.2d 958

148 Vt. 324

STATE of Vermont v. Raymond A. JEWETT.

No. 83-478.

Supreme Court of Vermont.

June 26, 1987.

Reargument Denied Aug. 10, 1987.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, and John R. Churchill, Chittenden Co. Deputy State's Atty., Burlington, for plaintiff-appellee.

Gregory W. McNaughton, Barre, for defendant-appellant.

David W. Curtis, Defender Gen., and David Carpenter, Appellate Defender, Montpelier, for amicus curiae Office of Defender General.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ.

ALLEN, Chief Justice.

Defendant appeals his conviction for driving while under the influence of intoxicating liquor (DUI) in violation of 23 V.S.A. § 1201(a)(2). We affirm.

While driving northbound on Interstate 89, Corporal Dorfner (corporal) spotted defendant tailgating another vehicle in excess of the posted speed limit. Upon observing further reckless and erratic operation, the corporal attempted to stop the two vehicles. Defendant pulled his car over into the breakdown lane. The other vehicle pulled over a half mile further down the road. The corporal drove past defendant's vehicle and stopped near the other car. Defendant then drove off.

Shortly thereafter, another Vermont State Police officer, Trooper Markiewicz (trooper), arrived at the scene. The corporal informed the trooper of the make and registration of defendant's vehicle, and told him that the operator had been driving erratically and could be under the influence. The trooper caught up with defendant's car, and signalled him to stop. Defendant pulled his car off the highway, across the shoulder, and part way down a grassy embankment at an angle of 30 degrees to the highway before coming to a stop.

The trooper approached the car, observed that defendant's eyes were bloodshot, and ordered him to get out of the car. When defendant got out, the officer observed that he was unsteady on his feet. Feeling threatened by defendant's size, the trooper escorted defendant to the front of the cruiser to conduct a brief pat-down search for weapons. The trooper then asked defendant to perform certain dexterity tests, and upon determining that there was probable cause to suspect a DUI violation, took him to the Colchester police barracks for DUI processing.

Before trial, defendant moved to suppress all evidence obtained after the pat-down search. He argued that the pat-down search violated the Fourth and Fourteenth Amendments to the United States Constitution as well as Chapter I, Article Eleven of the Vermont Constitution, and that the violation converted the encounter into an illegal arrest requiring suppression of any evidence gained after the encounter. The court denied the motion, concluding that, even if the pat-down search was improper, the evidence sought to be suppressed was not derived from that improper encounter.

I.

On appeal, defendant renews the arguments he made to the trial court. He concedes that the police had the authority to make a "brief investigatory stop based on a reasonable suspicion of illegal activity." See State v. Phillips, 140 Vt. 210, 215, 436 A.2d 746, 749 (1981). He also appears to concede that a limited search for weapons may be conducted in the absence of probable cause where law enforcement officers have reasonable grounds to believe that criminal activity is afoot and that the suspect is armed and dangerous. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). He contends, however, that the officer here had no such grounds and that the illegal pat-down search converted the encounter into an arrest requiring probable cause. He asserts that any evidence gained subsequent to this event was thus gained as a result of an illegal arrest and must be suppressed as a necessary sanction against unwarranted police conduct to vindicate the individual's state constitutional right to be free from search and seizure. We disagree.

First, we conclude that, although Chapter I, Article Eleven of the Vermont Constitution ^* does not contain the word "unreasonable," it does not contemplate an absolute prohibition on warrantless searches or seizures. See State v. Badger, 141 Vt. 430, 454-55, 450 A.2d 336, 350 (1982) (upholding warrantless seizure of "manifestly incriminating, yet vulnerable, evidence which was openly displayed, with no attempt at concealment" where such seizure was the least restrictive action available to police). The circumstances under which warrantless searches or seizures are permitted, however, must be " 'jealously and carefully drawn.' " See State v. Meunier, 137 Vt. 586, 588, 409 A.2d 583, 584 (1979) (quoting United States v. Watson, 423 U.S. 411, 427, 96 S.Ct. 820, 829, 46 L.Ed.2d 598 (1976) (Powell, J., concurring)).

An officer's authority to arrest without a warrant is measured against the guidelines set forth in V.R.Cr.P. 3(a). A limited search for weapons, however, such as the one at issue in this case, is a wholly different kind of intrusion from an arrest.

An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest.

See Terry, 392 U.S. at 26, 88 S.Ct. at 1882 (footnote omitted). In short, a limited search for weapons, whether it be legally or illegally conducted, does not convert an investigative stop into a full-blown arrest. The legality of the police conduct does not change our analysis because the degree of intrusion remains the same regardless of the circumstances that prompted the frisk.

Persons who claim to have been subjected to an illegal Terry -type frisk are not without a remedy under the Vermont Constitution. They may file a motion to suppress any evidence discovered as a result of such a search. See Badger, 141 Vt. at 452-53, 450 A.2d at 349 ("Evidence obtained in violation of the Vermont Constitution, or as the result of a violation, cannot be admitted at trial as a matter of state law."). They must establish, however, a causal nexus between the constitutional violation and the evidence sought to be suppressed in order to prevail. See Phillips, 140 Vt. at 218, 436 A.2d at 751 (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963)). The test we now adopt is a familiar one: " 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417 (citing J. Maguire, Evidence of Guilt 221 (1959)).

In this case, defendant failed to establish a causal nexus between the asserted impropriety--the pat-down search for weapons--and the evidence he seeks to have suppressed. The incriminating evidence, namely, the odor of alcohol, defendant's physical appearance, and his coordinative capability, were all readily observable by the arresting officer and discovered in the normal course of investigating a DUI violation. In the absence of such a causal nexus, we have no occasion to pass on the legality of the frisk at issue here.

The Office of the Defender General, appearing as amicus curiae, contends that a violation of defendant's state constitutional rights occurred when the officer ordered defendant to get out of his vehicle, and that any evidence obtained subsequent to that point in time must be suppressed. In essence, amicus asks us to hold that under Chapter I, Article Eleven of the Vermont Constitution police officers may conduct a limited search for weapons or require the suspect to leave his vehicle only if they reasonably suspect the person is armed and dangerous. Compare Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6, 98 S.Ct. 330, 333 n. 6, 54 L.Ed.2d 331 (1977) (holding "that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures."). According to amicus, the police had no authority to order defendant to get out of his vehicle as they had no reason to believe that he was armed and dangerous.

An investigatory stop of a vehicle and the detention of its passengers is a "seizure." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); Phillips, 140 Vt. at 215, 436 A.2d at 749. In this case, the initial stop was based on suspicion of illegal activity rather than upon probable cause to arrest. See Phillips, 140 Vt. at 215, 436 A.2d at 749; see also Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (usual traffic stop of an automobile "more analogous to a so-called 'Terry stop,' see Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968), then to a formal arrest."). The validity of the stop, however, has been conceded.

An order to get out of one's automobile is a further "seizure" within the meaning of Article Eleven. See State v. Wyatt, 67 Haw. 293, 304, 687 P.2d 544, 552 (1984). It is not, however, completely outside the realm of legitimate law enforcement conduct where the...