State v. Paro

• Decision Date: 10 July 2012
• Docket Number: 11–185.,No. 11–184,11–184
• Citation: 2012 VT 53,54 A.3d 516
• Parties: STATE of Vermont v. Nicole PARO.
• Court: Vermont Supreme Court

54 A.3d 516
2012 VT 53

STATE of Vermont
v.
Nicole PARO.

No. 11–184, 11–185.

Supreme Court of Vermont.

July 10, 2012.

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

ENTRY ORDER

¶ 1. This case presents a simple set of facts and a single question for review: whether a truck idling in the middle of the night in the parking lot of an auto repair shop that had previously been burglarized is sufficient to give police reasonable and articulable suspicion of criminal activity. We hold that this set of facts, without additional indicia of wrongdoing, is not enough to give an officer reasonable suspicion. We reverse.

¶ 2. Defendant Nicole Paro does not challenge the facts as found by the trial court; she challenges only the trial court's legal conclusion that, given the particular facts of this case, the police had

[54 A.3d 517]

reasonable and articulable suspicion to stop her vehicle. On appeal of a motion to suppress, we review the trial court's legal conclusions de novo and its factual findings for clear error. State v. Pitts, 2009 VT 51, ¶ 6, 186 Vt. 71, 978 A.2d 14.

¶ 3. The sparse record in this case reveals the following facts. A police officer with the Hartford Police Department was working the overnight shift on August 14, 2010. Prior to commencing a shift, officers receive a briefing which includes a “directive patrol list”—areas of concern to which police officers should pay extra attention. The list could include residential neighborhoods that have reported speeding vehicles, businesses that have experienced recent burglaries, or areas of known suspicious activity. The Hartford Police Department had received at least seven reports of thefts or burglaries at Northeast Foreign Cars and Collision Works (adjacent businesses on Route 4) between August 1997 and December 2009. Consequently, the area around these businesses was on the directive patrol list on August 14, 2010 when this incident took place.

¶ 4. The police officer in question was traveling east on Route 4 towards White River Junction at 12:43 a.m. when he passed by Northeast Foreign Cars and noticed a Chevrolet pickup truck idling in the parking lot. The police officer thought this was suspicious, as the shop was not open for business, and he knew that this area had experienced previous break-ins, with the most recent being about nine months earlier. In fact, the police officer had personally investigated thefts from vehicles at Northeast Foreign Cars a year earlier in August 2009. The officer pulled into a nearby motel's parking lot. As he started to turn around, the Chevy truck pulled out of the parking lot and headed east towards the police officer. The officer made a motor vehicle stop based solely on his suspicion of criminal activity at Northeast Foreign Cars. Defendant was charged with driving under the influence in violation of 23 V.S.A. § 1201(a)(2), and moved to suppress all evidence obtained through the traffic stop under the Fourth Amendment of the United States Constitution and Article 11 of the Vermont Constitution.

¶ 5. The trial court denied the motion to suppress, concluding that given the totality of the circumstances, the police officer had a reasonable and articulable suspicion of criminal activity when he stopped defendant's vehicle. The court reasoned that the police officer knew from prior personal investigations and from the directive patrol list that Northeast Foreign Cars had experienced thefts in the past, with three in the past year alone. Defendant was idling in the parking lot in the middle of the night and pulled out when the officer started turning around to investigate. The judge concluded that while there were plausible reasons for defendant's vehicle to have been in the parking lot at that hour, it was just as plausible that defendant was there for nefarious purposes. Accordingly, the court ruled that the facts in this case “rise to a higher level of particularity” than those in previous cases in which this Court held that the circumstances failed to establish a reasonable and articulable suspicion of criminal activity. See State v. Warner, 172 Vt. 552, 555, 773 A.2d 273, 276 (2001) (mem.) (ruling that defendant's proximity to attempted break-in, absent any other factors, does not give rise to reasonable suspicion); State v. Welch, 162 Vt. 635, 636, 650 A.2d 516, 518 (1994) (mem.) (“While information about criminal or suspicious activity from a citizen who is not a paid informant and is unconnected with the police may be presumed to be reliable, an investigatory stop may not be based solely on the unsupported ‘hunch’ of an informant.” (quotations and citations omitted));

[54 A.3d 518]

State v. Emilo, 144 Vt. 477, 481, 479 A.2d 169, 171 (1984) (holding that officer's suspicion that vehicle “did not belong in the particular area in the early morning hours, without more, clearly falls outside of an ‘articulable and reasonable’ suspicion of some criminal wrongdoing”).

¶ 6. Defendant renews her arguments on appeal. We begin by repeating our refrain that for a police officer to effect a warrantless traffic stop the officer must have a reasonable and articulable suspicion of criminal activity. Delaware...