State v. McGuigan

• Citation: 965 A.2d 511,2008 VT 111
• Decision Date: 14 August 2008
• Docket Number: No. 06-437, 06-501.,06-437, 06-501.
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. Joseph S. McGUIGAN.

965 A.2d 511

2008 VT 111

STATE of Vermont v. Joseph S. McGUIGAN.

No. 06-437, 06-501.

Supreme Court of Vermont.

August 14, 2008.

Stuart G. Schurr, Department of State's Attorneys, Montpelier, for Plaintiff-Appellee.

Brian R. Marsicovetere of Griffin, Marsicovetere & Wilkes, P.C., White River Junction, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

BURGESS, J.

¶ 1. Defendant appeals the denial of his motion to suppress evidence that ultimately led to defendant's DUI processing. On February 24, 2006, a state trooper stopped to render roadside assistance to defendant, who was some fifty miles off course. After smelling alcohol and having difficulty understanding defendant when he spoke, the trooper administered a preliminary breath test (PBT) and conducted field-sobriety exercises in order to determine whether defendant was driving under the influence in violation of 23 V.S.A. § 1201(a). Defendant seeks to suppress the PBT and all the evidence obtained thereafter, arguing that his participation was not voluntary. Defendant also argues that his admissions regarding alcohol consumption should be suppressed. We affirm.

¶ 2. Defendant's car was stopped in the breakdown lane of I-91 with its four-way hazard lights flashing when a state trooper approached to render assistance at approximately 10:30 p.m. Defendant indicated to the trooper that he had run out of gas while on his way to Mount Snow and had just called 911. The trooper found this explanation to be odd, given that defendant had passed the exit to Mount Snow approximately fifty-five miles earlier. While defendant was speaking, the trooper smelled an odor of intoxicants.

¶ 3. After checking defendant's license, the trooper discussed contacting the American Automobile Association (AAA) for help. He explained that he had internet access in his cruiser and asked defendant if he would "mind sitting in there" while the trooper checked on whether roadside assistance was available. Defendant agreed and, after the trooper frisked him for weapons, walked around to the passenger side of the cruiser and got inside. While inside the cruiser searching the internet, the trooper spoke with defendant about his work and about the route he had taken to Vermont. The trooper smelled "a strong odor of alcohol" coming from defendant's person and noticed that defendant's eyes were bloodshot and watery. The trooper had trouble understanding defendant at times, because his speech was not "smooth and clear." The trooper asked defendant whether he had consumed any alcohol, and defendant replied, "[n]ot much." On further questioning, defendant admitted that "he had [had] a sip of his mother's pina colada approximately four hours earlier."

¶ 4. The trooper told defendant the best thing he could do was "to be honest" and told him to blow into a PBT device. Defendant did so. The trooper then explained to him that the result was almost twice the legal limit in Vermont and again asked defendant how much he had had to drink. Defendant admitted he had consumed "three or four beers." The trooper then told defendant that he was going to administer field-sobriety tests. After defendant showed signs of impairment on the first test, the trooper asked him to step out of the cruiser and administered several other field-sobriety exercises. When defendant showed further signs of intoxication, he was placed under arrest for DUI and taken to the barracks, where a breathalyzer test confirmed he had a blood-alcohol content (BAC) of .141.

¶ 5. Defendant moved to suppress the statements that he made to the trooper after entering the cruiser, as well as the PBT and all the evidence obtained thereafter. Defendant claimed his participation in these tests was compelled. The trial court denied his motion.

¶ 6. Defendant raises five issues on appeal, claiming that: (1) field-sobriety exercises and PBTs are searches under the Fourth Amendment of the United States Constitution and Article 11 of the Vermont Constitution; (2) Vermont drivers have a right to refuse PBTs and field-sobriety tests; (3) his participation in the PBT and field-sobriety tests was involuntary; (4) the statements he made to the trooper after being informed of his PBT results should be suppressed because the trooper failed to read him his Miranda warnings, in violation of the Fifth Amendment of the United States Constitution and Article 10 of the Vermont Constitution; and (5) the trial court erred in finding that probable cause to arrest existed before the PBT was administered. When reviewing a motion to suppress, we uphold the trial court's findings unless clearly erroneous, while reviewing the court's legal conclusions de novo. State v. Lawrence, 2003 VT 68, ¶¶ 8-9, 175 Vt. 600, 834 A.2d 10 (mem.).

I.

¶ 7. We first address defendant's claim that field-sobriety exercises and PBTs are "searches" under the Fourth Amendment of the United States Constitution and Article 11 of the Vermont Constitution. We have held that the administration of field-sobriety tests is a seizure for the purposes of the Fourth Amendment. State v. Gray, 150 Vt. 184, 190, 552 A.2d 1190, 1194 (1988). An officer may administer field-sobriety exercises if he can point to "specific articulable facts" indicating that a suspect is driving under the influence of alcohol. Id. at 191, 552 A.2d at 1194.

¶ 8. Whether we classify fieldsobriety exercises as a "search" or a "seizure," their administration is the kind of investigatory detention the United States Supreme Court contemplated in Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and by this Court in Gray. Such a detention may begin with a consensual encounter between the police and a citizen, as here, or with the investigatory stop of a suspect. Under either circumstance, if the officer can point to factors indicating that a suspect has been involved in wrongdoing—here, driving under the influence of alcohol—the initial encounter can "escalat[e]," with "each inquiry by the officer le[ading] to further evidence justifying further restraints on defendant's freedom until probable cause exist[s] to arrest defendant and process him for DUI." Gray, 150 Vt. at 189, 552 A.2d at 1193. The Fourth Amendment and Article 11 determine when an officer may constitutionally escalate the search. In Gray, we concluded that "the Fourth Amendment guarantee[] against unreasonable searches and seizures" was satisfied if, before administering field-sobriety exercises, an officer could point to "specific articulable facts" indicating the defendant had been driving under the influence. Id. at 191, 552 A.2d at 1194. Defendant's characterization of these exercises as a search, as well as a seizure, does not alter our conclusion that on the highway, pursuant to both the Fourth Amendment and Article 11, the police may administer fieldsobriety tests when an officer has reasonable, articulable suspicion that an individual is driving under the influence of alcohol.

¶ 9. We have not yet addressed whether the administration of a PBT is a search or seizure pursuant to either the Fourth Amendment or Article 11. "A [Fourth Amendment] `search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); see also Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ("Obtaining and examining the evidence may ... be a search ... if doing so infringes an expectation of privacy that society is prepared to recognize as reasonable."). Similar principles determine whether a search triggering Article 11 protection has occurred. State v. Bryant, 2008 VT 39, ¶ 11, 183 Vt. ___, 950 A.2d 467 ("An Article 11 search occurs when the government intrudes into areas or activities that are the subject of legitimate expectations of privacy." (citations and quotations omitted)). Two issues must therefore be assessed in order to determine whether or not the administration of PBTs constitutes a search: first, whether citizens have an expectation of privacy against the taking and analysis of air from within their persons; and second, whether society recognizes this expectation of privacy as reasonable. What qualifies as a "reasonable expectation of privacy" depends on "both private, subjective expectations and public norms." Bryant, 2008 VT 39, ¶ 11, 950 A.2d 467 (citation and internal quotations omitted).

¶ 10. The United States Supreme Court has held that "a compelled intrusion into the body for blood to be analyzed for alcohol content" constitutes a search under the Fourth Amendment. Skinner, 489 U.S. at 616, 109 S.Ct. 1402 (citation and quotation omitted). "In light of our society's concern for the security of one's person, it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable." Id. The administration of an evidentiary breathalyzer test—which requires the "production of alveolar or `deep lung' breath for chemical analysis"—raises the same issues, and these tests have also been declared a search by the United States Supreme Court for purposes of the Fourth Amendment. Id.

¶ 11. The administration of a PBT raises similar concerns. Like breathalyzer tests, PBTs provide a chemical analysis of a citizen's breath for the purposes of calculating blood-alcohol content. The PBT requires the production of "deep lung" breath and tests it for alcohol content. These processes appear to be no less private than those involved in a breathalyzer or a blood test. The administration of the test—in which one must breathe into a small, chemical-analysis device—is a physical intrusion. Common recognition of the sanctity of the person leads us to conclude that a PBT "intrudes into [an] area[]" that is the "subject of legitimate expectations of privacy,"...