State v. Young, 09–252.

Citation12 A.3d 510, 2010 VT 97
Case DateOctober 29, 2010
CourtUnited States State Supreme Court of Vermont

12 A.3d 510
2010 VT 97

STATE of Vermont
Jason YOUNG.

No. 09–252.

Supreme Court of Vermont.

Oct. 29, 2010.

[12 A.3d 511]

Thomas M. Kelly, Washington County State's Attorney, Barre, for Plaintiff–Appellee.David Watts of Blodgett, Watts, Volk & Sawyer, P.C., and Jason J. Sawyer, Law Office of Jason J. Sawyer, Burlington, for Defendant–Appellant.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.DOOLEY, J.

¶ 1. Defendant Jason Young appeals from the denial of his motion to suppress evidence, obtained by a police officer after defendant drove into the driveway of the officer's house, and to dismiss his civil and criminal cases. Defendant contends that: (1) the trial court erred in determining that he was not seized when the officer initially followed him into the driveway; (2) the court erred in determining that the officer had the requisite reasonable suspicion to order defendant to exit his truck; and (3) the factual findings underlying the court's order on the motion to suppress were clearly erroneous. For the reasons discussed below, we affirm.

¶ 2. A little past ten o'clock on a mid-summer's eve, defendant departed Barre in his pick-up truck to return to his home in Marshfield, triggering an improbably unlucky—for him—sequence of events. Defendant had been socializing with friends after work and, as he put it, “had a couple of drinks.” Shortly after defendant turned onto Plainfield Brook Road, a vehicle approached his truck from behind. Defendant testified that the vehicle was “approaching pretty rapidly,” so he decided to take his next right onto Cassie Street, “assuming the vehicle would continue straight past.” Much to defendant's dismay, the vehicle followed. Defendant turned right at his next opportunity, this time pulling onto Valley View Circle. Again, the vehicle followed. Defendant next began to search for an “available driveway to turn around in easily” and made his choice. He pulled into the driveway, “assum [ing] the vehicle behind [him] would continue past.” It did not. Defendant testified to thinking that, “coincidentally, the person must live there.” He was correct. What he did not realize at the time, however, was that the vehicle was a police cruiser and the person who followed him and lived in the house was an off-duty police officer dressed in plain clothes.1

¶ 3. According to defendant's testimony, the vehicle that had been following him stopped along the side of the road when he pulled into the driveway. Defendant put his truck in reverse and began to back out, but the vehicle pulled into the driveway blocking defendant from exiting the driveway. Defendant pulled forward and, while rolling down his window to see if the lumber in his truck was going to hit anything, successfully navigated a turnaround so that he was proceeding out of the driveway. Defendant began rolling up his window when he noticed the officer, in defendant's words, “motion[ ] to me to hold on, I think.” It was only at this point that

[12 A.3d 512]

defendant at last noticed that the vehicle allegedly blocking him was a police cruiser.

¶ 4. Defendant further testified that with their driver's-side windows open, the officer asked defendant what he was doing in the driveway, to which defendant replied that he was turning around. The officer next asked him where he was coming from and where he was going to, and defendant again gave responsive answers. The officer indicated that he could not hear defendant very well, and asked him to turn off the truck. He then “got out of his vehicle, without moving it at all and walked over to [defendant's] window.” Defendant expressly testified that the cars were not side-by-side at that point, and that the officer had blocked him in the driveway.2 Defendant did not testify regarding any of the events that followed.

¶ 5. The officer's testimony differed from that of defendant in several important respects. According to the officer, he was a “[l]ittle concerned” when he observed defendant pull into his driveway after ten o'clock at night, as his wife and children were inside the house. The officer testified that he had activated his garage door opener and that the door was going up as defendant drove “all the way into [his] driveway, near the door.” The officer pulled the cruiser into the driveway and stopped at the entrance to try to determine what defendant was doing. Defendant then “pulled forward, taking a rather wide turn, drove onto [his] lawn, straightened out and came back out towards the entrance of the driveway.” The officer testified that defendant pulled his truck “pretty much side-to-side” with the police cruiser, so that the two could talk through their driver's-side windows, and the cruiser did not block defendant's truck from exiting the driveway. The officer also recounted that he did not roll down his window until after he observed that defendant's window was already down and that he never motioned for defendant to stop or to roll down his window.

¶ 6. According to the officer, he next asked defendant if he could help him. The officer testified that he “immediately detected a rather strong odor of intoxicants come out of the vehicle, just by the windows being down.” When defendant indicated that he was turning around, the officer “notice[d] the speech was somewhat slurred.” Based on the odor of alcohol emanating from the truck and the slurred speech, the officer asked defendant how much he had had to drink that night. Defendant allegedly responded, “three or four,” followed by a short pause, and then, “maybe four or five.” After asking defendant a few more questions and requesting his license, registration, and proof of insurance, all of which defendant provided without difficulty, the officer asked defendant to step out of his truck to perform certain sobriety tests. According to the officer, before getting out of his vehicle, the officer backed up his car so that he could open his car door without hitting defendant's truck. After a preliminary breath test indicated a BAC result of .178 percent and defendant exhibited difficulty performing various sobriety tests, the officer processed defendant for driving under the influence.

¶ 7. Prior to trial, defendant moved to suppress the evidence obtained during the driveway encounter and to dismiss the civil and criminal proceedings against him. Defendant argued that the police officer did not have “the requisite reasonable and articulable suspicion to stop and seize [him],” and lacked a “reasonable and articulable suspicion of DUI to order [him] to

[12 A.3d 513]

exit his vehicle or proceed to process him for DUI.” 3 He further argued that the officer's request that defendant take a preliminary breath test “was based upon insufficient ‘reason to believe’ [defendant] was impaired.” The trial court denied the motion, first concluding that the initial encounter was not a seizure, as the officer “was acting consistently with any other homeowner wondering what this individual was doing all the way up his driveway late at night.” The court noted that “[i]t is reasonable for a homeowner in these circumstances to stop an operator to inquire whether he is lost or in need of assistance.” In other words, the court concluded that the officer was acting as a homeowner during the initial encounter, and not as a police officer. The court determined that no seizure occurred until the officer ordered defendant out of his truck and requested that he perform the sobriety tests. By this point, the court concluded, the stop was justified, noting that defendant “smelled strongly of alcohol, had bloodshot and watery eyes, and had slurred speech.”

¶ 8. Defendant ultimately entered into a plea agreement with the State conditioned on the outcome of this appeal. On appeal, defendant argues that the trial court erred in: (1) finding that the encounter between the officer and defendant was not a seizure until defendant was ordered to exit the truck; (2) finding that the exit order was based upon reasonable and articulable suspicion; and (3) making its factual findings. We reject each of these arguments.

¶ 9. A motion to suppress raises a mixed question of law and fact. State v. Pratt, 2007 VT 68, ¶ 4, 182 Vt. 165, 932 A.2d 1039. We review a trial court's legal conclusions de novo and accordingly afford them no deference. State v. Fletcher, 2010 VT 27, ¶ 8, 187 Vt. 632, 996 A.2d 213 (mem.). We give substantial deference, however, to the trial court's findings of fact and we will uphold them unless, “taking the evidence in the light most favorable to the prevailing party, and excluding the effect of modifying evidence, there is no reasonable or credible evidence to support them.” State v. Mayo, 2008 VT 2, ¶ 12, 183 Vt. 113, 945 A.2d 846 (quotation omitted). When testimony conflicts, we will not disturb the trial court's decision to credit a particular witness absent some compelling indication of error, Okemo Mountain, Inc. v. Lysobey, 2005 VT 55, ¶ 12, 178 Vt. 608, 883 A.2d 757 (mem.), for it is within the province of the trial court to assess witness credibility and the weight of the evidence. State v. Dixon, 2008 VT 112, ¶ 34, 185 Vt. 92, 967 A.2d 1114.

¶ 10. Defendant first contests the trial court's conclusion that he was not seized until the officer ordered him to exit the truck. Defendant alleges that the officer partially blocked his egress from the driveway with the police cruiser and gestured for him to stop, and that this conduct amounts to an unconstitutional seizure within the scope of the Fourth Amendment to the United States Constitution. In assessing this argument, we note that the police officer testified that he did not block defendant's egress and that he did not

[12 A.3d 514]

motion for defendant to stop. The trial court did not resolve the conflict in the testimony, however, because it decided the motion on a different theory. Nevertheless, even accepting defendant's version of events as true, we agree...

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  • Zullo v. State
    • United States
    • United States State Supreme Court of Vermont
    • 4 de janeiro de 2019
    ...and reasonable basis to order plaintiff to exit his vehicle to determine whether plaintiff was driving impaired. Cf. State v. Young, 2010 VT 97, ¶ 21, 189Page 45 Vt. 37, 12 A.3d 510 (concluding that "the strong smell of alcohol and defendant's slurred speech are sufficient indicia of drivin......
  • Zullo v. State, 2017-284
    • United States
    • United States State Supreme Court of Vermont
    • 4 de janeiro de 2019
    ...and reasonable basis to order plaintiff to exit his vehicle to determine whether plaintiff was driving impaired. Cf. State v. Young, 2010 VT 97, ¶ 21, 189Page 45 Vt. 37, 12 A.3d 510 (concluding that "the strong smell of alcohol and defendant's slurred speech are sufficient indicia of drivin......
  • Zullo v. State, 17-284
    • United States
    • United States State Supreme Court of Vermont
    • 4 de janeiro de 2019
    ...and reasonable basis to order plaintiff to exit his vehicle to determine whether plaintiff was driving impaired. Cf. State v. Young, 2010 VT 97, ¶ 21, 189 Vt. 37, 12 A.3d 510 (concluding that "the strong smell of alcohol and defendant's slurred speech are sufficient indicia of driving under......
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    • United States
    • United States State Supreme Court of Vermont
    • 23 de agosto de 2013 an officer's reasonable suspicion in the context of a totality-of-the- [80 A.3d 74]circumstances assessment. See State v. Young, 2010 VT 97, ¶ 21, 189 Vt. 37, 12 A.3d 510 (strong odor of alcohol and slurred speech); State v. Santimore, 2009 VT 104, ¶ 8, 186 Vt. 638, 987 A.2d 332 (me......
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