State v. Sutphin, 90-258

CourtUnited States State Supreme Court of Vermont
Citation614 A.2d 792,159 Vt. 9
Docket NumberNo. 90-258,90-258
PartiesSTATE of Vermont v. Donna SUTPHIN.
Decision Date22 May 1992

William T. Keefe, Addison County Deputy State's Atty., Middlebury, for plaintiff-appellee.

Bonnie Barnes of Sessions, Keiner, Dumont, Barnes & Everitt, Middlebury, for defendant-appellant.


ALLEN, Chief Justice.

Defendant appeals from the trial court's denial of her motion to suppress evidence. She was charged with driving while intoxicated, a violation of 23 V.S.A. § 1201. Defendant contends that the "stop" of her vehicle constituted an illegal seizure under the Fourth Amendment to the United States Constitution. We hold that the Fourth Amendment was not violated, and affirm.

On September 24, 1989, at approximately 1:15 a.m., an Addison County Deputy Sheriff came up behind a vehicle "inappropriately" signaling a right turn in an area where there was no right turn. The vehicle was being operated at varying rates of speed as it headed up a hill toward a curve. After traveling around a left-hand curve, the vehicle pulled off to the side of the highway, outside the white line, and came to a stop. The officer pulled up behind the vehicle and activated his blue lights. He then exited his vehicle and requested that defendant produce her operator's license and registration. As a result of his observations during this interview, the officer processed defendant for DUI.

The trial court found that, under all the circumstances, it was reasonable for the officer to speak to defendant. The issue on appeal is whether the trial court erred in finding that the officer had reasonable grounds for an investigative detention under the circumstances presented. We will not disturb a trial court's findings unless they are unsupported by the evidence or are clearly erroneous. State v. Zaccaro, 154 Vt. 83, 86, 574 A.2d 1256, 1258 (1990).

The parties disagree over whether the officer's action constituted an investigatory stop within the meaning of the Fourth Amendment, but it is unnecessary to resolve this question because there were grounds for a stop, assuming a stop occurred. A "reasonable and articulable suspicion" of wrongdoing is necessary for a police officer to stop a motor vehicle that is being operated on the highway. State v. Emilo, 144 Vt. 477, 481, 479 A.2d 169, 171 (1984). See Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979).

The question is whether the officer had reasonable grounds to suspect that defendant was engaged in any wrongdoing at the time of the encounter. The level of suspicion required under the Fourth Amendment is considerably less than proof of wrongdoing by a preponderance of the evidence, United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989), but it must be more than an "inchoate and unparticularized suspicion or 'hunch.' " Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). An adequate basis for judicial review of the officer's action exists when the officer gives a reasonably specific statement of the circumstances underlying his action together with his reaction to the situation with which he was confronted. State v. Carnevale, 598 A.2d 746, 748 (Me.1991) (citing 3 W. LaFave, Search and Seizure § 9.3(a), at 428 (2d ed. 1987)).

The officer gave such a statement. He observed a vehicle in the early morning hours travelling at varying rates of speed, signaling to make a right turn at a location where no right turn existed. * The signaling, which he described as inappropriate, continued for several hundred feet around a left curve after which the vehicle pulled off the highway and came to a stop. These circumstances were sufficient justification for the officer to conclude that criminal activity might be afoot and justified the stop under Terry.


DOOLEY, Justice, concurring.

I concur in the result, but on different grounds. The critical factor for me is that there was no stop by the officer in this case. It is undisputed that defendant pulled off the road and came to a complete stop before the officer pulled up behind her. Thus, we must distinguish this case from those like State v. Emilo, 144 Vt. 477, 481, 479 A.2d 169, 171 (1984), where a police officer used flashing blue lights in order to stop a vehicle. I think it is clear that the degree of restraint on defendant was significantly less than if there had been a stop. See, e.g., People v. Murray, 137 Ill.2d 382, 390, 148 Ill.Dec. 7, 11, 560 N.E.2d 309, 313 (1990).

Ordinarily, where there is no stop there is no seizure, and the constitutional protection on which defendant relies does not apply. Three facts present here might change that conclusion: (1) the officer approached defendant's car "armed and in uniform"; (2) the officer asked for defendant's license and registration; and (3) when he stopped, the officer activated his flashing blue lights. It is clear that neither of the first two facts amount to a seizure. The United States Supreme Court has held that a uniformed officer approaching a citizen, asking questions of the citizen and asking for identification, is not a seizure, a holding most recently reaffirmed in Florida v. Bostick, 501 U.S. 429, ----, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991), in which the Court concluded that the rule was no different on a bus even though the individual involved did not feel free to leave the bus. As a result, courts have uniformly held that "the mere approaching and questioning of a person seated in a parked vehicle does not constitute a seizure." People v. Murray, 137 Ill.2d at 391-92, 560 N.E.2d at 313; see generally 3 W. LaFave, Search and Seizure § 9.2(h), at 409 (2d ed. 1987). Further, they have held that requesting a license and registration does not constitute a seizure unless the officer does not return these documents. See generally 3 W. LaFave, Search and Seizure § 9.2(h), at 414 n. 252.

The only ground to find a seizure in this case is the use of flashing blue lights. In looking at this issue, I accept that the use of these lights is normally viewed as a police "order" to stop. See Moyer v. Dunn County, 691 F.Supp. 164, 169-70 (W.D.Wis.1988). One commentator has noted, "Certainly it seems an officer seeking to avoid a seizure should not activate the lights of the squad car." Butterfoss, Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins, 79 J.Crim.L. & Criminology 437, 456 n. 109 (1988). Despite these generalizations, with which I agree, I do not believe the use of the lights in this case resulted in a seizure.

First, our law distinguishes between the use of flashing lights to stop a motorist and the use for other purposes. All of the statutes imposing requirements on a motorist when approached by a law enforcement vehicle using flashing blue lights involve use of the lights to stop the vehicle. See 23 V.S.A. § 1012 (operator "shall promptly and carefully stop when signalled to stop by an enforcement officer wearing insignia which identifies the officer"); § 1013 (person may not "knowingly fail or refuse to comply with any lawful order" of enforcement officer); § 1133 (an operator must "bring his vehicle to a stop when signalled to do so by an enforcement officer operating a law enforcement vehicle ... displaying a flashing blue ... signal lamp"). The presence of a stopped law enforcement vehicle with a flashing light more often gives a message that there is a road hazard, and cars should proceed with caution. Indeed, the flashing lights may have been used for this purpose here since the shoulder was narrow.

Second, the primary message that the flashing lights give is the presence of a law enforcement vehicle because only such a vehicle can use this color of flashing light. 23 V.S.A. § 1252(a)(1). In a major sense, the use of the flashing light is similar to the uniform; it identifies the presence of a law enforcement officer. If the visible symbol of law enforcement does not bring about a seizure in one instance, it should not necessarily do so in the other instance. While some persons might find the flashing lights to be more intimidating than the uniform, the difference is one of degree, not kind. I see no bright line between these symbols.

Most significant for me is the third reason--we want law enforcement officials to use a visible signal of their presence in a case like this. This incident occurred late at night on a remote and isolated stretch of road. If we prohibit the use of the lights in such circumstances, we are requiring that the officer approach the vehicle with no way of showing that the officer presents no threat to the well-being of the occupant of the vehicle. Even if we view the officer solely as a criminal investigator, it is highly desirable, for both the vehicle occupant and the officer, that the occupant know that the person approaching is an officer. In the context of a DUI roadblock, we have required "a visible display of legitimate police authority" to meet Fourth Amendment requirements. State v. Martin, 145 Vt. 562, 571, 496 A.2d 442, 448 (1985). The need for a visible display is much greater in this case. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 452, 110 S.Ct. 2481, 2486, 110 L.Ed.2d 412 (1990) (checkpoint stops involve less generation of concern or fear in motorists than stops by roving patrols).

We must also deal with the likely scenario that the officer will be providing assistance to a disabled vehicle and must warn other motorists of a potentially hazardous condition. If the use of flashing blue lights constitutes a seizure, it is because they represent a "show of authority." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968). Normally a seizure occurs "only if, in view of all of the circumstances surrounding the...

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