State v. Rutter

• Decision Date: 31 January 2011
• Docket Number: No. 10–092.,10–092.
• Citation: 2011 VT 13,15 A.3d 132
• Court: Vermont Supreme Court
• Parties: STATE of Vermontv.Aaron RUTTER.

15 A.3d 132

2011 VT 13

STATE of Vermont

v.Aaron RUTTER.

No. 10–092.

Supreme Court of Vermont.

Jan. 31, 2011.

Present: DOOLEY, JOHNSON, SKOGLUND, BURGESS, JJ. and BENT, Superior Judge, Specially Assigned.

ENTRY ORDER

¶ 1. Defendant appeals his conviction for second-offense driving while under the influence (DUI), arguing that the district court erred in denying his motion to suppress. Defendant claims that the arresting officer lacked the necessary reasonable suspicion of wrongdoing to support a stop of defendant's motor vehicle, and that the alleged traffic violation was merely a pretext for the stop. We affirm.

¶ 2. At 2:00 a.m. on March 5, 2009, a Brattleboro police officer was parked on Main Street three-quarters of a block north of the intersection with Elliot Street. At the time, the intersection was controlled by a flashing light. From this vantage point, the officer observed defendant's car approach from Elliot Street and stop at the intersection. The officer then heard defendant's tires squealing and the engine revving as defendant turned left onto Main Street towards the officer. The officer activated his blue lights and stopped defendant's car. Once stopped, the officer made additional observations of defendant, which led to a charge of second-offense DUI. The officer also cited defendant for violating 23 V.S.A. § 1063, which provides: “No person shall move a vehicle which is stopped, standing or parked unless the movement can be made with reasonable safety.”

¶ 3. Defendant filed a motion to suppress in the DUI case. Defendant argued that the officer lacked a reasonable suspicion of wrongdoing to stop his car, and that the officer used the traffic infraction as a pretext because he knew defendant had been consuming alcohol. Defendant requested a hearing on the ground that the facts were highly contested.

¶ 4. The court held a hearing on the motion. Primarily, the hearing involved a factual dispute about whether defendant squealed his tires. The officer testified that while on patrol he watched defendant's car make a full stop at the intersection and then, as he watched the car turn, he heard a loud screeching noise and defendant's engine revving. The officer explained that he stopped defendant because he was concerned about impairment, and suspected that defendant had committed a traffic violation by negligently operating his vehicle. On cross-examination, the officer testified that the screeching sound could have been for as short as one second. The officer's vehicle camera was activated when he turned on his blue lights, and the stop itself was recorded. The video was admitted at the suppression hearing. It reveals, and the officer so testified, that after conducting the stop, the officer approached defendant's car, and immediately questioned defendant as to why he felt the need to “peel out.” Defendant testified on his own behalf. He admitted to having four drinks at a bar that evening, but denied peeling out of the intersection. He instead claimed that his tires slipped a little on some gravel as he was turning. In support of defendant's theory that he did not squeal his tires, defendant's father testified that he had purchased the vehicle defendant was driving, and that based on his own experience and experiments driving the vehicle, he opined that the car was incapable of spinning its tires or peeling out.

¶ 5. At the end of the hearing, the court made findings on the record. The court credited the officer's testimony over defendant's and found that as defendant went through the intersection he screeched his tires and revved his engine. The court also found that at the time of the incident the roadway was dry, salt-stained and clear of ice and snow. The court concluded that the officer had a reasonable suspicion that defendant had committed a motor vehicle infraction. Defendant moved for permission to take an interlocutory appeal. The court denied the motion. Defendant entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress. Defendant now appeals that order.

¶ 6. Our review of a denial of a motion to suppress involves a mixed question of fact and law. State v. Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280. We apply a deferential standard of review to the trial court's factual findings and will affirm those findings if supported by the evidence. State v. Lawrence, 2003 VT 68, ¶ 9, 175 Vt. 600, 834 A.2d 10 (mem.). “The question of whether the facts as found met the proper standard to justify a stop is one of law.” Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280.

¶ 7. On appeal, defendant does not challenge the trial court's factual findings. Instead, defendant argues that the court erred in denying the motion to suppress because (1) a transient squealing of tires is insufficient to violate 23 V.S.A. § 1063, and without this basis the stop was an unreasonable seizure under the Fourth Amendment and Article 11 of the Vermont Constitution; and (2) the traffic violation for squealing his tires was merely a pretext for stopping defendant's car.

¶ 8. An investigatory stop is warranted when a police officer has a reasonable and articulable suspicion of illegal activity. Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280. This means there must be “more than an unparticularized suspicion or hunch of criminal activity, but ... considerably less than proof of wrongdoing by a preponderance of the evidence.” Id. “Reasonable and articulable suspicions of motor-vehicle violations are sufficient to justify traffic stops.” State v. Harris, 2009 VT 73, ¶ 3, 186 Vt. 225, 980 A.2d 785.

¶ 9. Defendant argues that the officer was not justified in stopping his car because a brief squealing of tires is insufficient to support a suspicion of a motor vehicle infraction. Defendant contends that without reasonable suspicion the stop violated his rights under the Fourth Amendment and Article 11 of the Vermont Constitution.

¶ 10. We conclude that the facts as found were sufficient for the officer to reasonably suspect that defendant violated 23 V.S.A. § 1063, which states that “No person shall move a vehicle which is stopped, standing or parked unless the movement can be made with reasonable safety.” See State v. Thibault, 152 Vt. 91, 92, 564 A.2d 603, 603 (1989) (holding that when a driver squeals tires while pulling out, this indicates lack of control and raises a concern about reasonable safety). In so holding, we need not decide whether defendant actually violated 23 V.S.A. § 1063. See State v. Thompson, 175 Vt. 470, 471, 816 A.2d 550, 552 (2002) (mem.) (explaining that stop of vehicle was warranted where reasonable possibility that traffic offense was committed, but it is not required to demonstrate that traffic offense actually occurred). The relevant question is whether the officer had a reasonable basis to suspect that a motor vehicle violation was taking place, and the facts here provide that basis. The court found the officer's testimony credible that defendant screeched his tires and revved his engine as he proceeded from a stop and turned the corner. The court further found that the road was dry and clear of snow and ice at the time. Thus, the officer could conclude that the squealing of tires was intentional, and it was reasonable for the officer to suspect that defendant did not have reasonable control of his vehicle when the squealing of tires occurred as defendant moved from a stop and turned through the intersection. See Thibault, 152 Vt. at 92, 564 A.2d at 603 (interpreting § 1063 to require individuals to move their vehicles with reasonable safety even when not moving from a dead stop and noting that squealing tires indicates lack of such control).

¶ 11. Our decision does not, as defendant contends, create a bright-line rule that a “transient squeal” by itself always provides reasonable suspicion to suspect a violation of 23 V.S.A. § 1063 and therefore will always justify a traffic stop. Evaluating whether there is reasonable suspicion in a particular case depends on the totality of the circumstances. State v. Crandall, 162 Vt. 66, 70, 644 A.2d 320, 323 (1994). In some cases, the squealing of tires may not implicate § 1063 because the squealing is unconnected from the car's movement from a “stopped, standing or parked” position. In addition, there may be obvious and wholly innocent reasons for a person's tires to spin, such as weather or road conditions, which would negate any suspicion that the driver was not proceeding “with reasonable safety.” 23 V.S.A. § 1063; see Thibault, 152 Vt. at 92, 564 A.2d at 603 (noting that spinning tires is an indication that driver not in control of his vehicle). In any event, neither of these reasons existed in this case. Defendant repeatedly claims that tires slipping or screeching is an “innocent winter occurrence,” and every “driver loses traction transiently in winter driving conditions which sometimes causes a vehicle to squeal.” The trial court, however, rejected the notion that road conditions contributed to or caused defendant's tires to squeal, and defendant did not challenge the trial court's findings on appeal. In addition, the officer's testimony indicates that the revving and squealing happened as defendant moved from a stopped position. Therefore, under the totality of the circumstances, the officer had a reasonable suspicion in this case that the “peeling out” was caused by defendant proceeding from a stop without reasonable safety in violation of the statute.

¶ 12. The cases defendant cites from other jurisdictions do not alter our analysis. In the most analogous...