State v. Sullivan

• Decision Date: 23 August 2013
• Docket Number: No. 12–134.,12–134.
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Corrina SULLIVAN.

194 Vt. 361

80 A.3d 67

2013 VT 71

STATE of Vermont

v.Corrina SULLIVAN.

No. 12–134.

Supreme Court of Vermont.

Aug. 23, 2013.

David J. Cahill, Windsor County Deputy State's Attorney, White River Junction, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and Erick Tobias, Law Clerk (On the Brief), Montpelier, and Daniel S. Stevens of Marsicovetere Law Group, PC, White River Junction, for Defendant–Appellant.

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

ROBINSON, J.

¶ 1. Defendant Corrina Sullivan seeks reversal of her conviction for driving under the influence of alcohol (DUI) on the ground that the trial court erred in denying her motion to suppress various statements and evidence obtained during or as a result of an encounter between her and police officers in her apartment. We affirm.

¶ 2. The facts as found by the trial court and supported by sufficient evidence are as follows. On a cold January night, a Department of Corrections (DOC) officer was traveling in his vehicle down Christian Street in the Town of Hartford when he encountered defendant walking up the road about 100 feet from a motor vehicle stuck in a snow bank. The back half of the vehicle was encroaching on the traveled roadway, and both the rear reverse lights and dash lights were on. The DOC officer offered defendant a ride home.

¶ 3. During the brief trip, defendant identified herself and told the DOC officer that she had driven off the road because she was upset by a fight with her boyfriend. The DOC officer dropped her off at an apartment less than a mile away and reported the vehicle to the Hartford Police Department.

¶ 4. Officer Muldoon responded, arriving at the vehicle within six to ten minutes. He found documents in the vehicle listing defendant's name and address. The DOC officer, who had returned to the scene, told Officer Muldoon that he had driven defendant home.

¶ 5. Officer Muldoon drove to defendant's apartment and knocked on the door. Defendant's grandmother answered. After Officer Muldoon asked to speak with defendant, grandmother invited him in and called for defendant to come out of her room.

¶ 6. Defendant responded evasively to the first questions Officer Muldoon asked her about what had happened that night, avoiding eye contact and leaning against a wall. Her speech was neither clear nor articulate. From eight-to-ten feet away from defendant, Officer Muldoon detected a slight odor of alcohol. He explained to her that he was conducting an investigation and they could proceed in “one of two ways.”

¶ 7. Officer Muldoon asked if defendant had anything to drink that night. Defendant looked down and did not respond, and Officer Muldoon said he would take her response as a “yes.” Officer Muldoon then asked defendant to step out of the apartment to perform standard field sobriety tests.

¶ 8. At that point the grandmother began asking Officer Muldoon questions about DUI processing. He told the grandmother if defendant refused the evidentiary breath test she would lose her license for refusing. The grandmother then talked with defendant about the situation. In the course of that conversation, defendant mentioned an eleven-year-old conviction for DUI.

¶ 9. Defendant's friend then arrived at the apartment and joined the conversation between defendant and the grandmother. Defendant, the grandmother, and the friend discussed removing the car from the snow bank. Defendant was crying and upset because she had crashed the car. The three of them continued to talk amongst themselves, occasionally engaging Officer Muldoon. Meanwhile, Officer Muldoon waited for backup to arrive before taking further steps.

¶ 10. At one point, defendant told Officer Muldoon that she would not submit to a blood test. He replied that a field sobriety and breath test would clear up any questions about a DUI. Both the grandmother and friend tried to persuade defendant to take the field sobriety tests, but she continued to refuse. Officer Muldoon attempted to clarify whether defendant was refusing to take the tests but she said nothing in response. He asked again if she had anything to drink that night, and she replied, “not for a while.”

¶ 11. At that point, Sergeant Vail from the Hartford Police Department arrived at the apartment. In response to his questioning, defendant told Sergeant Vail that she had had “probably three beers.” Sergeant Vail again requested she submit to the preliminary breath test (PBT), but she refused. The officers then formally arrested defendant on suspicion of DUI and transported her to the Hartford Police Department for DUI processing. At the station, she was read her Miranda rights and consented to an evidentiary test. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The period from Officer Muldoon's arrival to defendant's formal arrest lasted about seventeen minutes.

¶ 12. The evidentiary breath test taken at the station yielded a blood-alcohol concentration of 0.246, well above the legal limit. Defendant was charged with DUI, second offense, pursuant to 23 V.S.A. § 1201(a)(2). Defendant filed a motion to suppress all evidence obtained after the Hartford Police encountered defendant at her apartment on the ground that the evidence derived from an unlawful seizure, and a motion to dismiss on the ground of the insufficient evidence that would result from suppression. In the alternative, defendant sought suppression of the statements regarding her alcohol consumption that she made prior to her formal arrest. After a hearing, the trial court denied defendant's motions in a written order.

¶ 13. The trial court rejected defendant's argument that Officer Muldoon did not have reasonable suspicion to investigate her for DUI. The court concluded that evidence of the single-car accident, defendant's leaving her car, defendant's evasive answers and suspicious demeanor when police first encountered her, and Officer Muldoon's detection of the slight odor of alcohol taken all together were sufficient to justify the officer's reasonable suspicion that defendant had committed DUI. Considering the totality of the circumstances, the trial court rejected defendant's contentions that her statements were involuntary and were the product of an unwarned custodial interrogation. The court explained that defendant was interviewed in her own home, that her grandmother and subsequently her friend were present throughout, that most of the conversation during the seventeen-minute encounter was between defendant and her grandmother and friend, rather than defendant and police officers, and that defendant showed she was able to make her own decisions, holding firm on her refusal to take a field sobriety test despite encouragement from her grandmother, her friend, and law enforcement. Finally, concluding that there was no formal or de facto arrest at the time Officer Muldoon told defendant he was investigating a crime (relating to the car in the snow bank) and could proceed in “one of two ways,” the court rejected defendant's argument that she was effectively arrested at that time without probable cause.

¶ 14. Defendant subsequently entered a conditional guilty plea pursuant to V.R.Cr.P. 11(a)(2), preserving her right to appeal all issues. On appeal, defendant raises the same arguments as she did in her motion to suppress.

¶ 15. A motion to suppress involves a mixed question of law and fact. State v. Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280. We will not disturb a trial court's findings of fact unless they are unsupported by the evidence or are clearly erroneous. State v. Sutphin, 159 Vt. 9, 11, 614 A.2d 792, 793 (1992). We review questions of law de novo. State v. Mara, 2009 VT 96A, ¶ 6, 186 Vt. 389, 987 A.2d 939.

I.

¶ 16. We begin with defendant's contention that Officer Muldoon seized her without reasonable suspicion. Defendant argues that Officer Muldoon seized defendant almost immediately upon his arrival at her apartment. At that time, all the officer knew was that an upset driver had slid her car off a snow-covered road into a snow bank—a commonplace winter occurrence in Vermont—and that she had left the rear and dash lights on—likely to help other drivers see the car. These facts, defendant argues, do not give rise to a reasonable suspicion to support Officer Muldoon's seizure of her.

¶ 17. We have long recognized that “[a] brief detention, its scope reasonably related to the justification for the stop and inquiry, is permitted in order to investigate the circumstances that provoke suspicion.”State v. Chapman, 173 Vt. 400, 402, 800 A.2d 446, 449 (2002) (quotation omitted). We described in State v. McGuigan the evolving circumstances that arise in police-citizen encounters, particularly in the DUI context:

[An investigatory] detention may begin with a consensual encounter between the police and a citizen ... 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—[such as,] driving under the influence of alcohol—the initial encounter can escalate, with each inquiry by the officer leading to further evidence justifying further restraints on defendant's freedom until probable cause exists to arrest defendant ... for DUI.

2008 VT 111, ¶ 8, 184 Vt. 441, 965 A.2d 511 (quotation and alterations omitted).

¶ 18. An investigatory detention must be supported by reasonable suspicion of criminal activity. State v. Bruno, 157 Vt. 6, 11, 595 A.2d 272, 275 (1991). A reasonable suspicion requires something less than evidence sufficient to prove guilt by a preponderance of the evidence, but “must be more than an inchoate and unparticularized suspicion or hunch.” State v. Warner, 172 Vt. 552, 554, 773 A.2d 273, 275 (2001) (mem.). Whether an officer's suspicions of criminal activity are reasonable is determined from the totality of the...