State v. Warner

• Decision Date: 26 March 2001
• Docket Number: No. 00-300.,00-300.
• Citation: 773 A.2d 273
• Parties: STATE of Vermont v. James Earl WARNER.
• Court: Vermont Supreme Court

773 A.2d 273

STATE of Vermont v. James Earl WARNER.

No. 00-300.

Supreme Court of Vermont.

March 26, 2001.

Before: AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Defendant James Warner appeals a conviction for driving under the influence of intoxicating liquor (DUI), 23 V.S.A. § 1201(a)(2). Shortly after his arraignment, defendant filed a motion to suppress the evidence gathered as a result of the traffic stop leading to his DUI arrest, claiming that the arresting officer lacked reasonable suspicion to effect a stop of defendant's vehicle, and, therefore, the evidence was obtained in violation of Chapter I, Article 11 of the Vermont Constitution and the Fourth Amendment to the United States Constitution. The Addison District Court disagreed, and defendant entered a conditional plea of guilty, reserving the right to appeal the trial court's denial of his motion to suppress. The court accepted the plea and entered judgment against defendant. We agree with defendant that the officer lacked reasonable suspicion to justify the stop, and therefore reverse.

The uncontested facts in the case are as follows. On May 2, 2000, sometime after 8:00 p.m., Middlebury Police Officer Sweet responded to a report of an attempted automobile break-in at an apartment complex located on Boardman Street. The complainant informed the police that the suspect had run off into the nearby woods. Shortly after arriving at the scene of the alleged attempted break-in, Officer Sweet left the apartment complex and proceeded to drive around the area. Another officer radioed Officer Sweet to inform him that a car had just driven by on Boardman Street, heading toward Foote Street. Soon thereafter, Officer Sweet observed a car which had just turned off Boardman Street onto Foote Street. At this point, twenty minutes had elapsed since the break-in had been reported. The officer began to follow the car south on Foote Street, and while doing so called in the car registration and discovered that it belonged to the defendant, James Warner. The officer testified at the suppression hearing that he had known the defendant, who was 48 years old on the night in question, for many years—ever since defendant had been in high school. He also testified that he was aware of defendant's health condition, consisting of a heart condition and having had several of his toes amputated, and that the defendant's home was located in the direction they were traveling. After traveling for approximately two miles, the car turned off the road into a driveway, and the driver turned its headlights off. The officer continued down Foote Street, turned onto Route 7, and then stopped to observe the parked car. After a few minutes, the officer observed the car's headlights turn on, and then the car resumed travel south on Foote Street. The officer again followed the car for a short distance, and then effected a traffic stop of the vehicle. At that time, the officer had not observed defendant engaged in any unlawful conduct. He testified that he stopped defendant's car because "it was suspicious activity to me that—you know, maybe the operator had a reason to avoid me."

At the suppression hearing, the trial court judge distinguished this case from State v. Welch, 162 Vt. 635, 636, 650 A.2d 516, 517-18 (1994) (mem.), in which we held that a police stop of an individual, when the officer had not witnessed any criminal activity by the suspect, was not based on a reasonable and articulable suspicion of criminal activity and therefore not justified. The judge distinguished Welch on the grounds that here, unlike Welch, there had been a recent report of criminal activity in the area, which, in his opinion, was a "significant difference." The court found that, in light of the fifteen to twenty minute time period between the break-in report and the sighting of defendant's car, and the "furtive" acts of defendant, that the officer had reasonable and articulable suspicion to effect a stop of defendant. Thus, the motion to suppress was denied.

In this appeal, defendant asserts that neither the officer's observations nor defendant's proximity to the reported break-in suffice to provide the reasonable suspicion of criminal activity necessary to support a permissible stop of defendant's vehicle. He contends that the suspicion the officer held in this case was no more reasonable nor articulable as to criminal activity than the suspicion we found insufficient in Welch and State v. Emilo, 144 Vt. 477, 479 A.2d 169 (1984). The State responds that the suspicious activity by defendant, in pulling into a driveway, turning off the headlights, sitting there for a few minutes, turning the headlights back on, and then departing, viewed in the context of his proximity to the reported break-in, was sufficient to provide the officer with a "reasonable, articulable suspicion."

We have repeatedly recognized that, for a police officer's warrantless traffic stop to be justified, the officer must possess a reasonable and articulable suspicion that the individual to be stopped is engaged in criminal activity. State v. Crandall, 162 Vt. 66, 70, 644 A.2d 320, 323 (1994); see also Welch, 162 Vt. at 636, 650 A.2d at 517. In determining whether a stop is justified, "the totality of the circumstances—the whole picture— must be taken into account." State v. Paquette, 151 Vt. 631, 635, 563 A.2d 632, 635 (1989) (citation and internal quotations omitted). The United States Supreme Court has recently addressed this issue as well, reaffirming that "[a] search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing." City of Indianapolis v. Edmond, 531 U.S. 32, ___, 121 S.Ct. 447, 451, 148 L.Ed.2d 333 (2000). The level of suspicion required to justify a stop need not rise to the level required to prove guilt by a preponderance of the evidence, but it must be more than an inchoate and unparticularized suspicion or hunch. Welch, 162 Vt. at 636, 650 A.2d at 517.

Both the State and the defendant rely primarily upon Welch and Emilo in asserting their contrasting arguments. In Welch, three police officers were approached by an individual reporting the following: that he had seen people walking around an older pickup truck in a driveway, and "[h]e thought that that was suspicious," leading him to drive by again. Id. at 635, 650 A.2d at 517. He reported that he then observed the truck in a different driveway, with the...