State v. Welch

ENTRY_ORDER.93-422; 162 Vt. 635; 650 A.2d 516

[Filed:  14-Oct-1994]


                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 93-422

                           SEPTEMBER TERM, 1994

State of Vermont                 }          APPEALED FROM:
                                 }
     v.                          }          District Court of Vermont,
                                 }          Unit No. 1, Windham Circuit
                                 }
Gregory Welch                    }          DOCKET NO. 180-2-93WmCr


             In the above entitled cause the Clerk will enter:

    Defendant was charged with operating a motor vehicle while under the
influence of intoxicating liquor (DUI), fourth offense, 23 V.S.A. 
1201(a)(2) .  He entered a conditional plea of guilty, reserving the right
to appeal the denial of his motion to suppress evidence, based on his
contention that the initial stop had not been valid.  We reverse. 

    At the suppression hearing, Trooper Vincent DiMauro testified that he
and two other officers were on an unrelated, late-night investigation in
Westminster, when an unnamed and unknown person approached and advised them
of some suspicious activity elsewhere in the area.  DiMauro said that the
unidentified person had 

         observed an older model Chevrolet pickup truck in a 
         driveway.  The occupants were out of the vehicle walking 
         around.  He thought that that was suspicious, so he went 
         down a ways, turned around and reversed his direction 
         and he indicated that the vehicle was in a different
         driveway and the occupants were either not around or in 
         the vehicle.  

According to DiMauro, this person also saw objects in the back of the
truck, though he did not state what the objects were or that he had seen
anyone place the objects there.  As the unidentified person was talking to
the troopers, he identified the pickup truck driving by them as the same
one he had observed earlier.  Trooper DiMauro followed the truck for two
miles onto the interstate and then stopped it, without observing any
unlawful or suspicious conduct by the driver.  When the trooper pulled the
vehicle over, the operator stopped properly.  DiMauro testified that his
purpose in stopping the vehicle was to inquire about what defendant was
doing going in and out of driveways. 

    The trial court denied the motion to suppress and explained his ruling
as follows: 

       There are a number of facts that, combined, create an
     articulable and reasonable suspicion of wrongdoing. 
     The officers testified that around midnight . . .  an
     unidentified informant reported that he had seen an old
     pickup truck in a driveway with its occupants out
     walking around, and a few minutes later saw the same
     pickup in a different driveway with objects in its bed.
     The area in which the truck was seen, was an area that
     experiences burglaries.  As the officers were talking
     to the informant, a pickup truck, matching the
     description given them by the informant, passed them, and the 

 

     informant identified the truck as the one he
     had seen involved in the suspicious activity.  The
     officers' subsequent stop of the defendant was made in
     order to investigate what they believed to be
     suspicious activity.  The Court finds that the
     officers' suspicions of wrongdoing were based on
     articulable and reasonable facts and that the
     inferences drawn from those facts were rational. 

This appeal followed.  

    There is no dispute that defendant was driving while under the influence
and that, prior to being stopped, he had not driven in a manner to create
reasonable, articulable suspicion that he was driving while under the
influence.  The sole issue on appeal is whether the police had reasonable
suspicion to stop defendant's vehicle, apart from his driving. 

    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 (1979).  "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 (1989),
but it must be more than an `inchoate and unparticularized suspicion or
"hunch."'" State v. Sutphin, 159 Vt. 9, 11, 614 A.2d 792, 793 (1992) (quoting 
Terry v. Ohio, 392 U.S. 1, 27 (1968)).  As we stated in State v. Kettlewell,
149 Vt. 331, 335, 544 A.2d 591, 594 (1987), "The test is `whether, based upon
the whole picture, [the agents] ... could reasonably surmise that the
particular vehicle they stopped was engaged in criminal activity.'"
(Alterations in original) (quoting United States v. Cortez, 449 U.S. 411,
421-22 (1981)). 

    Taking the testimony of the officer in the instant case as true, see State
v. Weiss, 155 Vt. 558, 562, 587 A.2d 73, 75 (1991), there is no support for
the court's conclusion.  The officer testified that he stopped defendant to
inquire about what he was doing going in and out of driveways.  The
unidentified informant had told the officer that he thought that it was
suspicious to see the truck's occupants out of the vehicle walking around and
to see the vehicle in a different driveway when the informant turned around
for a second look. 

    Though the court found that the area in which the truck was seen was an
area that experiences burglaries, there was no evidence in the record to
support this finding.  Nor had there been any recent reports of criminal
activity in the area.  Moreover, nothing in the conduct of the driver as he
was followed by the police suggested criminal activity.  The informant's
statement to the police was based on speculation, not accompanied by
sufficient indication of criminal activity to justify stopping defendant.  Cf.
State v. Siergiey, 155 Vt. 78, 81, 582 A.2d 119, 121 (1990) (citizen report of
erratic driving, plus officer's own observation of defendant driving extremely
slowly, added up to reasonable articulable suspicion); State v. Schmitt, 150
Vt. 503, 507, 554 A.2d 666, 668-69 (1988) (after anonymous tip, police cruiser
followed defendant's car and observed erratic and dangerous driving,
justifying stop). 

    While information about criminal or suspicious activity from a citizen who
is not a paid informant and is unconnected with the police may be presumed to
be reliable, United States v. Sierra-Hernandez, 581 F.2d 760, 763 n.1 (9th
Cir. 1978), cert. denied, 439 U.S. 936 (1978), an investigatory stop may not
be based solely on "`the unsupported "hunch" of an informant.'"  Kettlewell,
149 Vt. at 337, 544 A.2d  at 595 (quoting State v. McKenzie, 440 A.2d 1072,
1076 (Me. 1982)).  The informant's conclusion in this case that the events
involving defendant were 

 

suspicious, uncorroborated by facts that would make it seem so to the
objective observer, is insufficient.  By the officer's account of what he
learned from the informant, the activity reported was peaceful and open. 
There was no sign that any structure had been broken into and no details of     
what goods or objects were in the truck. 

    In sum, defendant's activities did not give rise to a reasonable,
articulable suspicion of wrongdoing, and the court should have suppressed the
evidence resulting from the stop. 

     Reversed and remanded. 

--------------------------------------------------------------------------------
                                  Dissenting


     MORSE, J., dissenting.     I would agree that mere presence on a rural
Vermont road after midnight does not deserve even a brief stop by police. 
State v. Emilo, 147 Vt. 477, 481, 479 A.2d 169, 171 (1984).  It is not unusual
for a neighbor to go for a walk or a traveler to pass through.  For any
Vermont person living "in the sticks," however, those late hours have
particular significance. When people are seen moving from driveway to
driveway, suspicion is a typical and appropriate response. 

    Although the facts developed at the hearing were sparse, enough facts
appear to support the legality of the stop.  In this case, State Trooper
Vincent DeMauro was informed that an old pickup truck was seen moving from
driveway to driveway after midnight in a rural area.  The informant told the
police that when he saw the pickup in one driveway, more than one person was
milling about. When he soon saw the truck in a second driveway, no one was
visible, but the informant could see objects in the bed of the truck.  The
informant thought the activity was suspicious given the late hour.  As the
Court points out, information given by a citizen is presumed to be reliable,
United States v. Sierra-Hernandez, 581 F.2d 760, 763 n.1 (9th Cir. 1978),
cert. denied, 439 U.S. 936 (1978), and the police officer must determine
whether the informant's tip constitutes suspicious activity.  State v.
McKenzie, 440 A.2d 1072, 1076 (Me. 1982).  Trooper DeMauro testified that he
agreed that the activity was suspicious, and that the late hour and very rural
location made the activity indicative of burglary.  Consequently, when the
informant pointed out the pickup, Trooper DeMauro stopped the truck to ask the
driver what he was doing.  Was DeMauro unreasonable for doing that? 

    All that is required for a legal stop is that the officer act on more than
a hunch or intuition.  State v. Sutphin, 159 Vt. 9, 11, 614 A.2d 792, 793
(1992).  If specific facts, and rational inferences drawn from those facts,
can be articulated that would lead an officer to the reasonable belief that a
defendant is engaged in some wrongdoing, then an officer may stop the
potential suspect to either confirm or dispel the suspicions.  State v.
Lambert, 146 Vt 142, 143, 499 A.2d 761, 762 (1985). 
 
    This is a far stronger case than State v. Kettlewell, 149 Vt. 331, 335-36,
544 A.2d 591, 594-95 (1987), in which we held that an informant's statement
that he did not know whether two Mexicans on his property were legal aliens
was a hunch based on mere speculation.  The informant here did not speculate
that it was after midnight, nor did he speculate that the pickup was in more
than one driveway and had articles in the bed.  Further, Emilo, 147 Vt. at
477, 479 A.2d  at 169, supports my view.  There we held that the police acted
on a mere hunch when stopping a vehicle on a rural highway at 3 a.m. merely
because it had a Massachusetts plate and was an unfamiliar car.  Id. at 481,
479 A.2d  at 171.  The Emilo Court would have surely been intrigued by the
added facts of this case.  A car traveling on a rural highway late at night is
not nearly as indicative of criminal activity as is a truck moving from
driveway to driveway under the cover 

 

of darkness, especially where it appears that objects have been loaded in the
bed of the truck at one of the residences.  In short, an objective observer
could surmise, as did Trooper DeMauro, that the driver acquired the load by
larcenous activity.  See United States v. Sokolow, 490 U.S. 1, 10 (1989)
(whether police have enough evidence to make a stop based on observance of
innocent behavior determined by the degree of suspicion attaching to
particular types of noncriminal acts); United States v. Cortez, 449 U.S. 411,
418-19 (1981) (reasonable suspicion based on common sense of trained
officers). 

    A peace officer need not witness criminal activity or erratic driving
after receiving a tip and before making a stop.  In Lambert, we upheld a
vehicle stop based solely on third-hand hearsay information, with no police
observation of criminal behavior.  Lambert, 146 Vt. at 143, 499 A.2d  at 762;
see State v. Schmitt, 150 Vt. 503, 507, 554 A.2d 666, 668-69 (1988).  Further,
the Court's comparison of Schmitt and State v. Siergiey, 155 Vt. 78, 81, 582 A.3d 119, 121 (1990) is inappropriate.  Neither of those cases determined the
reliability or sufficiency of the anonymous tip.  Siergiey, 155 Vt. at 80, 582 A.2d  at 120; Schmitt, 150 Vt. at 507, 554 A.2d  at 668.  Each case was decided
solely on the basis of the officer's observations.  Using those cases to
support the proposition that an officer must both receive a tip and witness
criminal behavior would be mistaken.  A more apt case is one this Court cited
with approval in Siergiey, 155 Vt. at 81, 582 A.2d  at 121.  In State v.
Czmowski, 393 N.W.2d 72, 72-74 (S.D. 1986), a vehicle stop was upheld based on
an anonymous call that a car was being driven erratically and the car's mere
presence in the area, without police observation of erratic driving or
criminal behavior.  I see little difference between that case and this. 

    Finally, the intrusion on defendant's privacy was minimal. Trooper DeMauro
sought only to inquire why the defendant was loading his truck, apparently at
different secluded homes, in the middle of the night.  We have previously
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."  Lambert, 146 Vt. at 143, 499 A.2d 
at 762; see also Adams v. Williams, 407 U.S. 143, 145-46 (1972) ("A brief stop
of a suspicious individual, in order to determine his identity or to maintain
the status quo momentarily while obtaining more information, may be most
reasonable in light of the facts known to the officer at the time.").  The
Court's use of Trooper DeMauro's innocuous inquiry to somehow show that
reasonable and articulable suspicion was lacking runs contrary to the
principles of Terry v. Ohio, 392 U.S. 1 (1968).  Police officers must be able
to respond to citizen complaints, and simple inquiries are the most
appropriate, least intrusive response. Country dwellers would find much
solace, and be better protected, if police were permitted to ask questions in
cases such as this one. 

    I say there was enough evidence to deny the motion to suppress, and I
would affirm. 


                                  BY THE COURT:


                                  
                                      _______________________________________
Dissenting:                           Frederic W. Allen, Chief Justice
                                        

_______________________________________
James L. Morse, Associate Justice 

                                      ____________________________________
                                      Ernest W. Gibson III, Associate Justice

                                      
                                      _______________________________________
                                      John A. Dooley, Associate Justice

                                  
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

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