State v. Burgess

657 A.2d 202, 163 Vt. 259, 1995 Vt. LEXIS 2

• Court: Supreme Court of Vermont
• Decided: January 27, 1995
• Docket: 93-448
• Status: Published

Opinions

Morse, J.

The State appeals from an order of the Rutland District Court granting defendant’s motion to suppress evidence that defendant was operating a motor vehicle while intoxicated, 28 V.S.A. § 1201. We affirm.

The essential facts are not in dispute. On the afternoon of December 7, 1992, a police officer travelling south on a road in Proctor observed a vehicle in a lawful pull-off area on the west side of the road, facing north. Driving by, the officer noticed that the vehicle had its engine running and its parking lights on. The officer turned his cruiser around and pulled up behind the parked vehicle, activating his blue lights. He had no indication that anything was wrong or any information about the vehicle before stopping. The officer approached the driver’s side of the vehicle and observed defendant behind the wheel and a passenger in the next seat. The officer asked the defendant whether he was having problems. Defendant replied that there were none and that he had only stopped “to relieve himself.” At that point the officer made observations leading to DUI processing.

Defendant moved to suppress the evidence obtained by the officer on the ground that the officer lacked probable cause for the initial stop. The court found that there was no evidence that defendant was either violating a traffic law or committing a crime. The court then noted our decision in State v. Marcello, 157 Vt. 657, 658, 599 A.2d 357, 358 (1991) (mem.), holding that in some circumstances a police officer may intrude on privacy to carry out “community caretaking” functions, but concluded that the facts of this case did not fall within the Marcello exception:

While clearly the level of proof to justify the inquiry and intrusion is slight, there must be some reasonable basis on which to make the inquiry. Without such a requirement, an officer would be free, under the community caretaking function, to inquire of any stopped/parked vehicle the nature and circumstances of the stop. Such intrusions, without specific and articulable facts to justify them, are clearly outside the scope of the community caretaking exception set forth in Marcello.

The State’s appeal focuses principally on the argument that no stop occurred, and that there was no need for a “reasonable and articulable suspicion” of wrongdoing.

I.

The question before the Court is whether the conduct of the police in displaying blue lights after pulling in behind defendant’s stopped vehicle constituted a stop, and we hold that it did. A “stop” is shorthand way of referring to a seizure that is more limited in scope and duration than an arrest. 3 W LaFave, Search and Seizure §§ 9.1(c), at 340,9.2(d), at 363 (2d ed. 1987). Consequently, police need not force or signal a vehicle to the side of the road to effect a stop of persons in the vehicle. See Adams v. Williams, 407 U.S. 143, 145-48 (1972) (treating officer’s approach of voluntarily parked vehicle and tap on window as forcible stop). While ‘“the mere approaching and questioning of a person seated in a parked vehicle does not constitute a seizure,”’ State v. Sutphin, 159 Vt. 9, 12, 614 A.2d 792, 794 (1992) (Dooley, J., concurring) (quoting People v. Murray, 560 N.E.2d 309, 313 (Ill. 1990)), activity which inhibits a person’s freedom of movement does. Id. at 14, 614 A.2d at 795. Courts have long held that a show of authority tending to inhibit a suspect’s departure from the scene is sufficient to constitute a stop, even though the vehicle is already stopped at the time of an approach by police. See, e.g., Wibben v. North Dakota State Highway Comm’r, 413 N.W.2d 329, 330, 331 (N.D. 1987) (approaching parked car and tapping on window with flashlight was seizure under Fourth Amendment); State v. Walp, 672 P.2d 374, 375 (Or. Ct. App. 1983) (use of overhead lights behind voluntarily stopped car was sufficient show of authority to restrain liberty of defendant within meaning of state statute where test for stop is identical to test under Fourth Amendment); State v. Stroud, 634 P.2d 316, 318 (Wash. Ct. App. 1981) (Fourth Amendment seizure occurred when officers pulled up behind parked vehicle and activated lights). While flashing blue lights do not always constitute a show of authority, the evidence in this case, viewed objectively, supports the conclusion that the use of lights served as a show of authority that tended to inhibit a person’s departure from the scene. The officer may have subjectively intended to activate his blue lights solely “for the safety of other vehicles on the road,” as the court found, but the litmus test is the objective belief of a reasonable person in the position of the defendant. California v. Hodari D., 499 U.S. 621, 628 (1991). This is not a case where one would feel free to leave; defendant’s vehicle was the sole subject of the officer’s use of the flashing blue lights.

II.

Secondly, the State argues that the court erred in failing to apply the “community caretaking” exception set forth in Marcello. An example of the proper application of the community-caretaking function can be found in State v. Merritt, 149 Vt. 529, 530, 546 A.2d 791, 791 (1988). In Merritt, a police officer approached a car parked in a rest area after observing the driver slumped over the steering wheel. The officer rapped on the window, but was unable to awaken the driver. Id. Although unsure why the driver was slumped over the wheel, the officer had reason to believe the driver was in need of assistance. This case is quite different because there were no specific articulable facts justifying the intrusion. The court specifically found that defendant’s vehicle was lawfully parked in a pull-off on the side of the road with its parking lights on. There was nothing in the manner in which the vehicle was parked to indicate that defendant was in any type of distress. There were no indications of illness, or that the car was disabled; in fact, the car was running when the officer passed by. There was no evidence that an accident had occurred.

The court was correct that without “some reasonable basis on which to make the inquiry,” the Marcello exception would devour the requirement of reasonable articulable suspicion. The night may have been cold and the vehicle not in a designated rest area, as the State argues. But absent from the State’s analysis is any objective indication that caretaking was required. Winters are traditionally long in Vermont, and we cannot adhere to a theory that essentially renders Fourth Amendment protections seasonal.

Affirmed.