State v. Lamb, 96-252.

• Decision Date: 31 July 1998
• Docket Number: No. 96-252.,96-252.
• Citation: 720 A.2d 1101
• Parties: STATE of Vermont v. Lawrence V. LAMB.
• Court: Vermont Supreme Court

720 A.2d 1101

STATE of Vermont v. Lawrence V. LAMB.

No. 96-252.

Supreme Court of Vermont.

July 31, 1998.

James P. Mongeon, Rutland County State's Attorney, and Lamar Enzor, Deputy State's Attorney, Rutland, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, Justice.

Defendant Lawrence Lamb appeals his conviction of operating a vehicle while under the influence of intoxicating liquor. 23 V.S.A. § 1201(a)(2). He contends that the trial court erred by: (1) denying his motion to suppress evidence derived from an investigatory stop of his vehicle based upon information supplied by an unnamed informant; and (2) admitting the results of a Datamaster infrared breath test. We affirm. The essential question before the Court is whether, considered in their totality, the circumstances justified a brief investigatory stop based in part upon an unnamed informant's tip that defendant was driving while intoxicated. We conclude that the detention was amply justified because (a) the investigating officer had corroborating information that could only have come from a knowledgeable insider, (b) the officer knew that defendant had been arrested previously for DUI, and (c) the offense of DUI presented an imminent risk of injury to the suspect or the public.

I.

Viewed in the light most favorable to the State, State v. McGee, 163 Vt. 162, 164-65, 655 A.2d 729, 732 (1995), the record discloses the following facts. At approximately 8:20 p.m. on a snowy evening in February 1994, a Vermont State Police trooper received a radio dispatch that a woman had called stating that defendant was very upset and intoxicated and was leaving a residence on Vaughn Road in Poultney. The dispatcher related that defendant was driving a large red car with a vinyl top. The trooper was familiar with Vaughn Road and with defendant, having processed him for DUI the previous year. When the trooper arrived at Vaughn Road approximately twelve minutes later, he saw a vehicle that matched the description provided by the dispatcher. The trooper recognized the driver as defendant. He thereupon activated his blue lights and stopped the vehicle. Prior to the stop, he had not observed defendant driving erratically. Upon approaching the vehicle, the trooper observed that defendant showed signs of intoxication. After failing several field sobriety tests, defendant was arrested for DUI and transported to the State Police barracks. A Datamaster infrared breath test administered at the barracks showed that defendant had a blood-alcohol level of .159 percent.

Prior to trial, defendant moved to suppress all evidence obtained as a result of the stop on the ground that the police lacked a reasonable suspicion to believe defendant was engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The trial court denied the motion, finding that the trooper "had a reasonable and articulable suspicion, based on the information provided by the [informant] and his own prior knowledge of the defendant, that the defendant was operating under the influence and was, therefore, justified in stopping defendant's vehicle to investigate further."¹

At trial, defendant conceded that he was operating a vehicle while intoxicated, but disputed whether he was on a "highway" within the meaning of the statute. See 23 V.S.A. § 1201(a)(2) ("A person shall not operate . . . any vehicle on a highway . . . when the person is under the influence of intoxicating liquor."). A jury returned a verdict of guilty. This appeal followed.

II.

Police officers may make an investigatory stop based upon a reasonable suspicion that the suspect is engaged in criminal activity. See Terry, 392 U.S. at 21-22, 88 S.Ct. 1868. The reasonable suspicion standard is less demanding than probable cause for an arrest or a search warrant. As the United States Supreme Court explained in Alabama v. White, 496 U.S. 325, 329-30, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), reasonable suspicion under the Fourth Amendment requires some minimal level of objective justification for making the stop. Reasonable suspicion, moreover, need not be based upon the officer's personal observations. "An informant's tip, if it carries enough indicia of reliability, may justify a forcible stop." State v. Kettlewell, 149 Vt. 331, 335, 544 A.2d 591, 594 (1987); see also Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (Supreme Court "reject[ed] . . . argument that reasonable cause for a stop . . . can only be based on the officer's personal observation"). The reliability of the information provided by an informant must be assessed in the light of the totality of the circumstances. As explained in White, "reasonable suspicion can arise from information that is less reliable than that required to show probable cause," so long as the information, considered in the "totality of the circumstances," is sufficiently corroborated to warrant the intrusion. 496 U.S. at 330,110 S.Ct. 2412. This is an assessment "dependent upon both the content of information possessed by [the] police and its degree of reliability." Id.

White is a case particularly on point. There, as here, law enforcement officers stopped a vehicle based upon an anonymous tip that the defendant was engaged in criminal activity. In White the alleged offense was possession of cocaine. The informant stated that the defendant would be leaving a particular apartment at a particular time in a particular vehicle, and would drive to a particular location. The officers observed the defendant leave the apartment within the predicted timeframe, enter a vehicle matching the informant's description, and proceed in the direction of the predicted location. The high court noted that although the informant was anonymous, the information he supplied appeared to be reasonably reliable "because it demonstrated inside information. . . . The general public would have had no way of knowing that [defendant] would shortly leave the building, get in the described car, and drive the [predicted] route." Id. at 332, 110 S.Ct. 2412. Thus, there was reason to believe the caller was sufficiently "well informed . . . to justify the stop." Id. Under these circumstances, the Court concluded, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion of criminal activity and justify an investigative stop. See id. at 331, 110 S.Ct. 2412.

The facts here are similar to those in White. One difference is that the officer did not actually observe defendant leave the residence and enter the described car, since the informant's call was contemporaneous with defendant's departure. Nevertheless, just as in White, the informant accurately predicted that defendant would be driving in a particular location, in a particular car, and at a particular time. Most important, as in White the caller unmistakably supplied the police with "inside information." Id. at 332, 110 S.Ct. 2412. The call was received in the middle of the evening. The informant stated that defendant was upset and intoxicated and was driving away from a residence on Vaughn Road, a dirt road located in a rural area that led to several residences, dead-ended in one direction, and intersected with Route 140 in the other. Approximately twelve minutes later, the officer intercepted a car on Vaughn Road; the officer noted that the car matched the vehicle described by the informant and was driven by defendant, whom the officer recognized from a previous DUI offense.

These facts demonstrate that it would have been virtually impossible for all but a handful of people to accurately predict that defendant would be in his car at the particular time and place described. The general public would have had no way of knowing that defendant was leaving a relatively isolated rural residence, located on a dirt road, at 8:30 on a winter evening. As the high court observed in White, "[b]ecause only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities." Id. Thus, when significant portions of information not privy to the general public were verified by the officer here, "there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop." Id. Standing alone, these circumstances were at least as strong as those found sufficient to justify the stop in White.

Indeed, considered in their totality, the facts here were more compelling than those in White in at least three respects. First, while the informant was "anonymous" in the sense that she did not specifically disclose her name, the general identity of the caller as a personal friend or acquaintance of defendant was plainly inferable from her statement that defendant had argued with a woman, was upset and intoxicated, and was leaving a residence on Vaughn Road. The police, in effect, were responding to a specific report of a domestic dispute at a particular location. In terms of assessing the caller's reliability, this is far more particularized information than could be expected from a total stranger. See, e.g., State v. Lambert, 146 Vt. 142, 144, 499 A.2d 761, 763 (1985) (upholding stop based upon wife's hearsay report that defendant might be driving while intoxicated).

Although the dissent suggests that there were "discrepancies" between the facts adduced at the suppression hearing and those presented at trial, the only "discrepancy" noted is an ambiguity as to whether the telephone call was made by defendant's girlfriend or the owner of the house on Vaughn Road. There was no dispute that one of the two women...