State v. Hollister

679 A.2d 883, 165 Vt. 553, 1996 Vt. LEXIS 55

• Court: Supreme Court of Vermont
• Decided: March 22, 1996
• Docket: 95-006
• Status: Published

Opinions

Defendant, David Hollister, was charged with possession of marijuana as a result of an encounter with a uniformed police officer in Bennington. Defendant moved to suppress the evidence obtained during the encounter alleging that the encounter was an unlawful seizure. The Bennington District Court agreed, and the State appeals. We reverse and remand.

On June 26,1994, at approximately 8:30 p.m., a uniformed police officer arrived at the Bennington Free Library to clean up broken glass from the ignition of a cherry bomb in a telephone booth nearby. The library, a known location for young people to use alcohol or drugs and to commit vandalism, was closed. The officer noticed two young males, one of whom was defendant, then nineteen years of age, walking down the library’s handicap access ramp. As he testified, he “didn’t know what they were doing. . . [but t]hey may have been [doing something illegal].” He walked up the ramp, approached the youths and asked them what they were doing at the library. During the conversation, he noticed the smell of alcohol on defendant’s breath, and defendant admitted he had been drinking. The officer asked defendant if he could look in defendant’s knapsack. Defendant opened the knapsack, but it contained no alcohol or contraband.

The officer then asked both youths “if they had anything in their pockets that they should not have and I asked if I could see that.” Defendant partially pulled out his front pocket, implying it was empty, but the officer noticed there still was a bulge in the pocket. He asked again if anything was in the pocket. Defendant answered that he had something the officer might want and produced two “baggies” of marijuana and a marijuana pipe. The other youth produced a “baggie” of marijuana.

Defendant was arrested for possession of marijuana. His motion to suppress the evidence, granted by the court, is now before us.

The trial court held that defendant was seized, as that term is used in the Fourth Amendment to the United States Constitution, when the officer approached him and asked him questions. Since the officer had no grounds for a seizure at that time, the court held that the seizure violated the Fourth Amendment and required that the evidence be suppressed.

We cannot agree that a seizure occurred at the commencement of questioning. The United States Supreme Court has addressed this question directly and held that “mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434 (1991). If any seizure was present here, an issue we do not decide, it commenced later in time when the officer sought to search the knapsack and defendant’s pockets.

By the time of the seizure, however, the officer had observed alcohol on defendant’s breath, and defendant had admitted he had been drinking and was a minor. Possession of alcoholic beverages by a minor is a crime. See 7 V.S.A. § 657(a) (punishable by $500 fine and/or 30 days in jail). Thus, the officer had reasonable and articulable suspicion that defendant had committed, and was continuing to commit, a crime. Such suspicion that a person has committed or is about to commit a crime allows for a limited investigatory seizure under Terry v. Ohio, 392 U.S. 1 (1968). See State v. Kettlewell, 149 Vt. 331, 334, 544 A.2d 591, 593 (1987). During the Terry seizure, the officer may seek consent for a search related to the suspected crime. See Florida v. Royer, 460 U.S. 491 (1983).

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The brief encounter here, which occurred in a public place, was well within the limitations of a Terry stop, and, therefore, any seizure that occurred was not unreasonable. We cannot agree with the trial court’s rationale for suppressing the marijuana and pipe.

Defendant also alleged in his motion to suppress that he did not voluntarily consent to the search of his pockets. The trial court did not reach this issue. We remand for consideration of whether the evidence should be suppressed on this alternative ground.

Reversed and remanded.

We do not accept the hair-splitting argument of the dissent that the officer could request to search only an area that might contain alcohol and only as long as the officer believed alcohol would be found. The officer testified that the library, when closed, was a known location for youngsters to go and consume alcohol and do illegal drugs, commit acts of vandalism, so on and so forth. We believe the officer could request to search for evidence of any related illegal activity, such as the use of drugs.