State v. Kettlewell, No. 84-264

• Docket Nº: No. 84-264
• Citation: 149 Vt. 331, 544 A.2d 591
• Case Date: December 24, 1987

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544 A.2d 591 149 Vt. 331 STATE of Vermont
v.
David KETTLEWELL. No. 84-264. Supreme Court of Vermont. Dec. 24, 1987.
Reargument Denied Feb. 17, 1988.

[149 Vt. 332] Jeffrey L. Amestoy, Atty. Gen., Susan R. Harritt and Elizabeth J. Grant, Asst. Attys. Gen., and Stephen Norten, Law Clerk (on the brief), Montpelier, for plaintiff-appellee.

David W. Curtis, Defender General, and Henry Hinton and William A. Nelson, Appellate Defenders, Montpelier, for defendant-appellant.

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Before ALLEN, C.J., DOOLEY, J., BARNEY, C.J. (Ret.), KEYSER, J. (Ret.) and COSTELLO, District Judge (Ret.), Specially Assigned.

ALLEN, Chief Justice.

Defendant appeals his conviction of possession of marijuana in violation of 18 V.S.A. § 4224. He contends the trial court erred in denying his motion to suppress the marijuana as evidence at his trial. We agree that the marijuana was the product of an unlawful search and vacate the conviction.

In the early evening of June 2, 1983, the town constable of Bakersfield, Vermont, provided the following information to a state police officer:

I told him that Dave Kettlewell was on my land, that he had brought two people that were Mexican onto my property, that I did not know whether they were legal or not legal. I told him that there was a drug deal involved, and that I had had prior knowledge of it.

The constable further stated that the defendant had parked a truck with an attached travel trailer on his land, and that he wanted the vehicles removed.

Based on the constable's report, the trooper thought there might be illegal aliens on the property. He contacted the United States Border Patrol, and he and a Border Patrol agent drove to the constable's property to investigate. The vehicles described by the constable were located at a remote campsite on the property, accessible by a dirt road. The trooper and agent arrived at the campsite, approached the camper and truck, and observed that both vehicles had Texas license plates. The agent, who had worked as a Border Patrol agent on the Texas-Mexico border, overheard a conversation in a Mexican dialect of Spanish between two men in the trailer. He also observed that the camper was of the type "used on numerous occasions, a type to smuggle illegal aliens, because of the concealment it offers."

The agent decided to speak to the trailer's occupants about their immigration status. With his pistol drawn and the trooper [149 Vt. 333] covering him with a shotgun, the agent knocked on the trialer door and asked its occupants to come out. After a brief period, two men emerged from the camper. The agent looked quickly inside the open door for other occupants and then took the two men away from the trailer for questioning. One of the men produced an immigration form identifying him as a legal United States resident. The other man stated he had no immigration documents and admitted that he was illegally in the country. The agent then arrested both men on immigration violations charges.

At the request of the agent, the trooper searched the trailer's interior, looking for the defendant and other illegal aliens. Based on the constable's report and the trooper's knowledge from other sources that the defendant might be violent, the officers wished to secure the area for their safety. While searching inside the trailer, the trooper came upon a large quantity of marijuana. After he came out, the agent searched the trailer for further evidence of immigration violations. During this search, he also observed the marijuana. Based on his discovery of the marijuana, the trooper seized the trailer and had it towed to the State Police barracks. After testing and confirming that what he had found was marijuana, he conducted a more thorough investigation of the trailer, and inventoried its contents.

Defendant was charged with possession of the marijuana after it was determined that he was in control of the trailer during the time it contained the marijuana. Defendant moved to suppress evidence of the marijuana, contending that the preliminary and inventory searches which yielded it were unlawful. The trial court denied the motion, and evidence of the marijuana was admitted at defendant's trial. Defendant was found guilty by jury verdict, and appeals from this judgment.

The defendant renews his challenge on appeal to the validity of the preliminary and inventory searches of the camper-trailer. The State contends that the searches were valid as incident to the lawful arrest of the trailer's occupants for immigration

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violations, under New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768, reh'g denied, 453 U.S. 950, 102 S.Ct. 26, 69 L.Ed.2d 1036 (1981).

The arrest of the trailer's occupants was prompted by the admission of one of the occupants that he was an illegal alien, in response to the agent's questioning. The State acknowledges that probable cause to arrest was lacking for the encounter between the agent and the trailer's occupants when this admission was [149 Vt. 334] made. It contends that proper procedure was followed nonetheless because the agent's questioning was based on a reasonable suspicion of criminal activity and was therefore a valid investigatory measure under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. According to the State, the reasonable suspicion ripened into probable cause during the Terry seizure, leading to a lawful arrest. The validity of the arrest thus turns on whether the initial investigative questioning was justified as a Terry-type stop, as the State asserts. We conclude that it was not. ¹

In order to make a valid stop to investigate suspected criminal activity, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880 (footnote omitted). A police officer may make a brief investigatory stop of a suspect based on less than probable cause to believe that the suspect has committed or is about to commit a crime, as long as the stop is less intrusive than a full-blown arrest, Dunaway v. New York, 442 U.S. 200, 209-10, 99 S.Ct. 2248, 2254-55, 60 L.Ed.2d 824 (1979), and the investigating officer, based on objective facts and circumstances, reasonably believes that the suspect is, or is about to be, engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981); State v. Phillips, 140 Vt. 210, 215, 436 A.2d 746, 749 (1981).

The standard of reasonable suspicion of criminal activity is required for vehicle stops by Border Patrol agents in all areas other than at the border or its functional equivalent. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975). Border Patrol agents must be able to "reasonably surmise" that the vehicles they stop contain aliens who have crossed the border illegally. Cortez, 449 U.S. at 421-22, 101 S.Ct. at 696-97. It logically follows that the Terry standard is appropriate for the "stop" of the occupants of the camper in this case. See Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1070 [149 Vt. 335] (7th Cir.1976) (immigration agent having reasonable suspicion, based on specific articulable facts, that person is alien unlawfully in this country may conduct street stop of pedestrian to investigate immigration violation), modified, 548 F.2d 715 (1977) (on other grounds).

A Terry seizure occurs when "the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded...." INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984). The occupants of the trailer were undoubtedly "seized" within this definition when they were questioned by the agent. The suspects emerged from the trailer and were confronted by two law enforcement officers with drawn...