State v. Boyea

765 A.2d 862, 171 Vt. 401, 2000 Vt. LEXIS 322

• Court: Supreme Court of Vermont
• Decided: December 1, 2000
• Docket: 99-061
• Status: Published

Opinions

Morse, J.

To appreciate the realities underlying today’s decision, consider the following alternative scenarios based upon the record evidence. Having received a State Police radio dispatch — derived from an unnamed informant — reporting a specifically described vehicle with New York plates traveling in a certain direction on 1-89 operating “erratically,” a police officer locates the car, observes it exit the highway and pulls out in pursuit. The officer catches up with the vehicle within minutes, but then faces a difficult decision. He could, as the officer here, stop the vehicle as soon as possible, thereby revealing a driver with a blood alcohol level nearly three times the legal limit and a prior DUI conviction. Or, in the alternative, he could follow the vehicle for some period of time to corroborate the report of erratic driving. This could lead to one of several endings. The vehicle could continue without incident for several miles, leading the officer to abandon the surveillance. The vehicle could drift erratically — though harmlessly — onto the shoulder, providing the corroboration that the officer was seeking for an investigative detention. Or, finally, the vehicle could veer precipitously into oncoming traffic, causing an accident.

These are not improbable scenarios. Sooner or later, depending upon the outcome of this case, one or all of them could occur. The dissenting Justices would hold that the constitutional right to privacy leaves the officer no choice but to wait, at whatever risk to the driver and the public. We are not persuaded that the Constitution compels this result. Rather, an anonymous report of erratic driving must be evaluated in light of the imminent risks that a drunk driver poses to himself and the public. We hold that, on the facts of this case, the officer’s expeditious stop of the vehicle was based upon sufficiently reliable information, notwithstanding the absence of any personal observation of incriminating behavior by the driver. Accordingly, we affirm.

The undisputed facts were as follows. On July 18,1998, at approximately 3:00 p.m., a Vermont state trooper received a radio dispatch of a “blue-purple Volkswagen Jetta with New York plates, traveling south on 1-89 in between Exits 10 and 11, operating erratically.” The officer, who was patrolling nearby, parked his cruiser in the median just north of Exit 10 to wait for the vehicle. Within five minutes, the officer spotted a purple Volkswagen Jetta with New York plates traveling south on 1-89. The officer observed the vehicle turn off the interstate at Exit 10, and immediately pulled out to follow. The officer lost sight of the vehicle after it exited, but regained visual contact as it turned onto Route 2, and caught up with it shortly thereafter. The officer activated his blue lights, and the vehicle pulled over. Based upon his subsequent observations, the officer arrested defendant for DUI. The trial court denied a motion to suppress, and defendant entered a conditional plea of guilty to DUI, second offense. This appeal followed.

Defendant contends that, because nothing the officer observed during the mile and a half that he “followed” defendant confirmed the anonymous report of erratic driving, the officer lacked a reasonable and articulable suspicion to justify the stop. See Terry v. Ohio, 392 U.S. 1, 21 (1968); State v. Crandall, 162 Vt. 66, 70, 644 A.2d 320, 323 (1994). It is worth observing, at the threshold, that it is inaccurate to suggest the officer here was somehow trailing defendant waiting for her to give some overt sign of intoxication. In fact, the record shows, and the trial court found, that the officer had visual contact with defendant for only a portion of the short time that he pursued her, and that he effectuated the stop immediately after he caught up with her. This was not an officer seeking independent verification that a driver was intoxicated, but rather one intent upon catching and stopping as soon as practically possible a driver whom he already suspected of being under the influence.

It is important to understand these factual nuances to better appreciate the stark legal issue they present. It is an issue which this Court recently considered, albeit indirectly, in State v. Lamb, 168 Vt. 194, 720 A.2d 1101 (1998), and which numerous other courts have directly addressed in recent years. May a police officer acting upon an anonymous tip that accurately describes a vehicle, accurately predicts its route and location upon the highway, and indicates that it is behaving in a fashion indicative of drunk driving, reasonably detain the vehicle without personally observing some indicia of intoxication? Or, alternatively, must the officer wait to observe some incriminating behavior, however that might threaten the driver’s or the public’s safety, before stopping the vehicle to investigate?

Confronted with this precise issue, a majority of courts have concluded that failing to stop a vehicle in these circumstances in order to confirm or dispel the officer’s suspicions exposes the public, and the driver, to an unreasonable risk of death or injury. Indeed, we relied upon many of these decisions in Lamb, observing that “[t]he potential risk of harm to the defendant and the public is widely acknowledged to be a critical factor in assessing the reasonableness of an investigatory stop.” 168 Vt. at 199, 720 A.2d at 1104.¹ After reviewing several cases involving deadly weapons, we concluded that “[t]he principle . . . that the gravity of the risk of harm must be considered in evaluating the reasonableness of the investigatory stop . . . applies with equal force to intoxicated driving.” Id. at 200, 720 A.2d at 1105.²

We then proceeded to cite with approval a series of cases upholding brief investigative motor-vehicle stops based upon an anonymous tip of erratic or drunk driving. The first decision we discussed was State v. Melanson, 665 A.2d 338 (N.H. 1995). There, as here, a police officer received a report from a dispatcher relaying information from an anonymous informant about a vehicle on the highway. The information conveyed “an exact description of the vehicle, the vehicle’s current location and direction of travel, and a description of prior erratic driving.” Id. at 341. Based upon this information, the officer located the vehicle, activated his lights, and stopped the vehicle, resulting in the driver’s arrest for DUI. The officer observed no erratic behavior prior to activating his lights. Id. at 339.

In assessing the validity of the stop, the New Hampshire court recognized the settled principle that reasonable suspicion to undertake a brief investigative detention “‘is a less demanding standard than probable cause not only in the sense that [it] can be established with information that is different in quantity of content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.’” Id. (quoting Alabama v. White, 496 U.S. 325, 330 (1990)) (alteration in original); see also Lamb, 168 Vt. at 196, 720 A.2d at 1102 (reasonable suspicion is less demanding standard than probable cause, and need not be based upon officer’s personal observation). To assess the reliability of information received from an anonymous informant, the court considered three factors: the nature and specificity of the information conveyed; the extent of corroboration by the officer; and the urgency of effectuating a stop in the circumstances.

As to the nature of the information, the court noted that it contained a specific description of the car, its exact location at a moment in time, and its direction and prior movements, all of which “reasonably supported] a conclusion that the caller had personally observed the vehicle.” Melanson, 665 A.2d at 340. Next, the court noted that the officer was able to determine within a few minutes of the call that the informant had accurately described the vehicle and its current location and direction, “support[ing] the complainant’s credibility” and “the officer’s conclusion that the informant had actually observed the reported behavior.” Id.

Finally, the court recognized that “the officer faced the potential of a dangerous public safety hazard.” Id. Unlike a situation where the information concerns the transportation of controlled substances, and the officer could safely observe the defendant to obtain additional incriminating information,

here failure quickly to stop the defendant’s vehicle in order to confirm or dispel the officer’s suspicions could have exposed the public as well as the defendant herself to the danger of an impaired driver. The officer’s ability to observe incriminating behavior, therefore, was limited by the exigency of the situation.

Id. (emphasis added).

In addition to the ruling by the New Hampshire court, Lamb also relied on the Kansas decision in State v. Tucker, 878 P.2d 855 (Kan. Ct. App. 1994), which again presented the scenario of an officer responding to a radio dispatch based upon an anonymous report of erratic driving. The caller described the vehicle, its location on the highway, and direction of travel. The officers located the car, followed a short distance, and — despite having observed no erratic driving — made an investigative stop which led to a DUI arrest. Applying an analysis similar to that in Melanson, the court observed that the anonymous tip suggested some firsthand knowledge, was corroborated by the police within a short time, and required immediate investigation in order to prevent potential injury to the driver and the public.

The Kansas court’s discussion of the necessary balancing between the driver’s constitutional right to privacy and the public’s interest in safety bears repeating. That balancing, the court observed, “must consider the risk to the public of not making an immediate stop against the right of an individual to be free from such stops. We believe that, where the danger to the public is clear, urgent, and immediate, the equation must be weighted in favor of protecting the public and removing the danger.” Id. at 861. Applying that equation to the case at bar, the court concluded that the risk of not making an immediate stop was “death and destruction on the highways. This is not a risk which the Fourth Amendment requires the public to take.” Id. at 862.

Lamb did not stop there. In addition to Melanson and Tucker, it cited and relied on State v. Markus, 478 N.W.2d 405, 408 (Iowa Ct. App. 1991) (officers receiving anonymous tip of intoxicated driver did not have to observe erratic behavior “to stop the defendant and investigate this exigent circumstance”); People v. Rance, 644 N.Y.S.2d 447, 447 (App. Div. 1996) (police stop of reportedly intoxicated driver “may be based upon information from an anonymous source where, as here, it relates to ‘matters gravely affecting personal or public safety”’) (quoting People v. Taggart, 229 N.E.2d 581, 586 (N.Y. 1967)); and Kaysville City v. Mulcahy, 943 P.2d 231, 236 (Utah Ct. App. 1997) (report of intoxicated driver supported investigative stop despite lack of personal observation by officers).³

Other decisions, not cited in Lamb, though closely on point, include: State v. Smith, 638 N.E.2d 1353, 1356 (Ind. Ct. App. 1994) (radio dispatch conveying information based upon report of erratic behavior by grey Dodge Dakota pickup traveling westbound on 1-70 near Clay-Futnam county line provided reasonable suspicion to support investigative detention); State v. Slater, 986 P.2d 1038, 1046 (Kan. 1999) (approving Tucker in upholding stop based upon anonymous call to police dispatcher regarding possible drunk driver and describing make and location of vehicle); State v. Sampson, 669 A.2d 1326, 1327 (Me. 1996) (anonymous tip of “possible drunk-driver,” together with vehicle description, provided reasonable suspicion sufficient to support investigatory stop); and State ex rel. Taxation & Revenue Dep’t Motor Vehicle Div. v. Van Ruiten, 760 P.2d 1302, 1305 (N.M. Ct. App. 1988) (radio dispatch to officer based upon unidentified caller’s report of suspected drunk driver in white pickup leaving store and heading south on highway supported investigative detention despite lack of corroborating evidence).⁴

The case law is not unanimous. In State v. Miller, 510 N.W.2d 638, 639 (N.D. 1994), the court considered a motor vehicle stop based upon an anonymous informant’s report that the driver of a pickup in a fast-food drive-up lane “could barely hold his head up.” The majority there concluded that the “quality” of the tip, which misdescribed the color of the pickup and gave no indication of incriminating behavior other than the ambiguous statement that the driver could not hold his head up, was insufficient to support the stop. Id. at 644. In so holding, however, the court suggested that a more accurate and specific report of erratic driving might have been sufficient, even without personal observation of the incriminating behavior, to support an investigative detention. See id. at 645.

In McChesney v. State, 988 P.2d 1071, 1078 (Wyo. 1999), the Wyoming Supreme Court ruled in a sharply divided three-to-two decision that a radio dispatch of erratic driving based upon an anonymous tip was insufficient to support an investigative detention, absent some independent corroboration of the tip by the investigating officer. In so holding, the court noted that its ruling was consistent with state highway-patrol policy that officers “will not make a stop unless police observation confirms either the reportf] or some other illegal or suspicious activity.” Id. at 1077. In a vigorous dissent, however, two justices argued that,

[g]iven the totality of the circumstances in this case, which included the description of the vehicle . . .; the location and direction of travel; the discovery by the officer of a vehicle matching that description; the arrival of that vehicle within a predictable time frame; and the clear statement of aberrant driving . . . , the officer had sufficient reasonable suspicion to accomplish an investigatory stop.

Id. at 1079. After citing the numerous decisions from other states upholding its position, the dissent concluded with language equally applicable here:

Certainly the individual is concerned, and justifiably, with an “intrusion upon cherished personal security . . .” The duty of the officer is to concern himself with protection of the public from the hazards associated with intoxicated drivers.

... If the circumstances involve a threat to the lives or safety of others that is posed by someone who may be driving while intoxicated or impaired, the reasonable officer must pursue an investigation.

Id. at 1081 (quoting Terry, 392 U.S. at 25) (emphasis added).⁵

The recent decision of the United States Supreme Court in Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375 (2000), also provides an illuminating contrast to the case at bar. In a relatively brief, unanimous ruling the high court there held that, absent any other indicia of reliability, an anonymous tip that an individual was in possession of a firearm did not justify a stop and frisk. In so holding, the Court rejected the government’s argument that firearms were sufficiently dangerous in and of themselves to justify dispensing with the requirement of reliability. The Court was particularly careful, however, to limit its holding to the facts, explaining: “The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability.” Id. at 273, 120 S. Ct. at 1380. It held only “that an anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm.” Id. at 274, 120 S. Ct. at 1380.

The case before us differs from J.L. in several critical respects. First, the information here was more reliable.⁶ The Court in J.L. emphasized that the anonymous informant had provided nothing more than a bare-bones description of an individual standing at a bus stop. Hence, there was none of the “predictive” information about the individual’s movements which lent credibility to the anonymous informant in White, 496 U.S. at 332. Here, in contrast, the informant described with particularity, and accurately predicted, the location of a fast moving vehicle on a freeway, information which the officer confirmed within minutes of the call.⁷

The Supreme Court also noted the relative lack of urgency confronting the investigating officers. While acknowledging that guns are dangerous, the Court analogized the situation to one involving an anonymous tip concerning possession of narcotics. In either case the contraband could pose a potential public risk, but in neither is the danger particularly imminent. Thus, the Court rejected a rule that would have dispensed with the requirement of reliability “whenever and however” the information involved a gun. J.L., 529 U.S. at 274, 120 S. Ct. at 1380. At the same time, however, the Court carefully limited its holding to the facts, declining to “speculate” about situations involving other types of dangers, such as a report of a person carrying a bomb. Id. at 273-74, 120 S. Ct. at 1380.

In contrast to the report of an individual in possession of a gun, an anonymous report of an erratic or drunk driver on the highway presents a qualitatively different level of danger, and concomitantly greater urgency for prompt action. In the case of a concealed gun, the possession itself might be legal, and the police could, in any event, surreptitiously observe the individual for a reasonable period of time without running the risk of death or injury with every passing moment. An officer in pursuit of a reportedly drunk driver on a freeway does not enjoy such a luxury. Indeed, a drunk driver is not at all unlike a “bomb,” and a mobile one at that.⁸

Finally, in contrast to the police search and seizure of the person in J.L., the police “intrusion” here, as in most DUI cases, consisted of a simple motor vehicle stop, “a temporary and brief detention that is exposed to public view.” State v. Zumbo, 157 Vt. 589, 592, 601 A.2d 986, 988 (1991). In determining the validity of a stop, it is not unreasonable to consider both the risk of harm resulting from a failure to detain the driver, and the level of intrusiveness occasioned by a detention. See State v. Richardson, 456 N.W.2d 880, 834 (Wis. 1990) (reasonableness of stop “is a common sense question, which strikes a balance between the interests of society in solving crime and the members of that society to be free from unreasonable intrusions”) (internal quotation marks and citation omitted). The police intervention here consisted initially of a brief motor-vehicle stop and questioning, not a hands-on violation of the person. Thus, the liberty interest at stake in this case did not rise to the level which confronted the Court in J.L.

Viewed in light of the Supreme Court’s decision in J.L., this Court’s recent decision in Lamb, and the vast majority of well reasoned decisions from other states, the conclusion follows inescapably that the investigative detention in this case was sound. The informant reported a vehicle operating erratically; provided a description of the make, model and color of the subject vehicle, as well as the additional specific information that it had New York plates; identified the vehicle’s current location; and reported the direction in which it was traveling. The officer went to the predicted location and within minutes confirmed the accuracy of the reported location and description, thus supporting the informant’s credibility and the reasonable inference that the caller had personally observed the vehicle. The information that the vehicle was acting “erratically” equally supported a reasonable inference that the driver might be intoxicated or otherwise impaired. See Webster’s New International Dictionary 869 (2d ed. 1955) (defining “erratic” as “[hjaving no certain course; wandering; moving”).

Lastly, the reasonableness of the stop may be assessed in light of the “gravity of the risk of harm.” Lamb, 168 Vt. at 200, 720 A.2d at 1105. We have consistently recognized “the serious threat posed to public safety by the frequency with which individuals, while under the influence of intoxicating liquor, continue to operate motor vehicles on the public highways.” State v. Martin, 145 Vt. 562, 568, 496 A.2d 442, 447 (1985). Balancing the public’s interest in safety against the relatively minimal intrusion posed by a brief investigative detention, see State v. Lambert, 146 Vt. 142, 143, 499 A.2d 761, 762 (1985), the scale of justice in this case must favor the stop; a reasonable officer could not have pursued any other prudent course.

Affirmed.

1 Lamb differed in several respects from the case at bar. The caller, although unnamed, was not quite as “anonymous” in the sense that it could reasonably be inferred she was a friend or acquaintance reporting a domestic dispute. 168 Vt. at 198, 720 A.2d at 1103. The investigating officer also knew defendant had been previously arrested for DUI. Id. at 198-99, 720 A.2d at 1104.

2 As discussed more fully below, the United States Supreme Court recently held that the anonymous report of an individual in possession of a gun did not, without more, provide a sufficient basis for a stop and frisk. See Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375 (2000). Although this decision casts doubt upon several of the weapons cases relied upon in Lamb, it does not control or undermine the numerous drunk-driving decisions on which it also relied, and which, as explained below, are distinguishable in key respects from J.L. Thus, contrary to the dissent, there is nothing “troubling,” 171 Vt. at 428, 765 A.2d at 881, about the Court’s reliance on Lamb.

3 In Kaysville the informant identified himself, and therefore it did not, like the other eases cited, involve an anonymous informant. 943 P.2d at 233.

4 In light of these decisions, the dissent’s assertion that “there is no precedent” for the Court’s decision, 171 Vt. at 423, 765 A.2d at 877, is puzzling.

5 AIthough the dissent cites an additional ten state and federal decisions involving anonymous tips, see 171 Vt. at 429-30, 765 A.2d at 881-82, only one of these, State v. Lee, 938 P.2d 637 (Mont. 1997), involved an anonymous, uncorroborated report of DUI, and Lee is arguably more favorable to the Court’s position than the dissent’s. There the caller stated that he “believed” an identified driver was under the influence of alcohol. Id. at 638. The Montana court concluded that “under the totality of the circumstances, as applied to the facts in this case,” the information was not sufficiently reliable. Id. at 640. In so holding, however, the court stressed that merely stating a “belief” the driver was intoxicated, without indicating some basis for the belief or some personal observation of speeding or erratic driving, undermined the caller’s reliability. See id. Here, in contrast, the caller provided a specific description, location, and direction of travel, and a report of erratic driving.

6 Contrary to the assertion of the dissent, we do not “ignor[e] the requirement of reliability for anonymous tips” of erratic or drunk driving. 171 Vt. at 423, 765 A.2d at 877. Rather, we hold that the totality of the factual circumstances in this case satisfied the requirements of reliability

7 This was admittedly a close case, and we readily endorse the concurring opinion’s implicit suggestion that other indicia of an anonymous informant’s identity — such as a voice recording or other tracing of the call — should be offered by the State if available. Even without such evidence, however, we are persuaded that the circumstances here, viewed in their totality, established a sufficient basis for an investigative detention. Nevertheless, we would stress that the issue of whether reasonable suspicion supported a particular stop is factually driven, and depends upon the totality of the circumstances in each case. To conclude, as the dissent suggests, that our holding somehow provides a “disincentive,” 171 Vt. at 427 n.1, 765 A.2d at 800 n.1, for the State to present the most thorough evidence available would be a serious mistake.

8 Even in cases involving possession of a handgun, J.L. represents a narrow ruling carefully confined to its facts. The police officer there observed no weapon or evidence of a weapon. Would J.L. control where the officer, upon arrival, observed an individual walking down a crowded street carrying a handgun in full view? We do not read the Supreme Court decision as preventing an officer in these circumstances from briefly stopping and questioning such an individual, even if — as in Vermont — such possession is lawful. As in the case of a reportedly erratic driver, the risk of imminent violence — and the necessity of prompt intervention — distinguishes the case from J.L.