State v. Marshall

2010 VT 81, 8 A.3d 1086, 188 Vt. 640, 2010 Vt. LEXIS 88

• Court: Supreme Court of Vermont
• Decided: September 28, 2010
• Docket: 2009-469, JUNE TERM, 2010
• Status: Published

Opinions

¶ 1. The State appeals from a trial court order finding a traffic stop leading to a DUI investigation unreasonable. The trial court found the detention was based on a traffic violation, but did not find the violation sufficient to support a reasonable suspicion of “criminal activity.” Finding that the officer articulated no basis to suspect impaired operation at the time of the stop, the court suppressed evidence of driving under the influence of intoxicating liquor (DUI) obtained by the officer during the ensuing detention, and dismissed the charge against defendant. We reverse and remand.

¶ 2. The trial court found as follows. The arresting officer observed defendant driving east on Route 302 in the Town of Berlin. The officer followed defendant for about a half-mñe and observed no erratic driving, speeding, or other violations. On a curve in the road, however, the officer saw defendant’s vehicle cross the yellow center line in violation of Vermont’s “drive to the right” statute, 23 VS.A. § 1031(a), which requires that “[u]pon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway.” He stopped defendant for failing to stay to the right. Noting signs of intoxication, the officer then proceeded to collect evidence of DUI and of driving with license suspended (DLS).

¶ 3. The State charged defendant with DUI under 23 V.S.A. § 1201 and DLS under 23 V.S.A. § 674. Defendant moved to suppress the evidence developed after the stop. The officer gave conflicting testimony about the distance and timing of defendant’s failure to stay right, estimating that defendant’s car crossed the yellow line for as few as five or as many as 200 feet, for between three to five seconds or for as long as two minutes. Nevertheless, the court found that the officer “observed the car cross over the center fine of the highway,” and that the

officer observed both the front and rear tires of the vehicle, from a quarter to one half of the vehicle, cross the center line.... The driver then returned to his proper lane of travel without further violation or other erratic operation and stopped appropriately when directed to do so by the officer.¹

In its analysis, the court remarked that while a 200-foot intrusion of half the vehicle into the opposite lane would be a serious violation, the same operation for just three seconds for five feet was not necessarily attributable to DUI. The trial court granted the suppression motion and dismissed the charge, ruling that the State failed to prove that the officer had a reasonable and articulable suspicion that defendant committed a criminal offense. The State appealed.

¶ 4. Suppression motions present a mixed question of law and fact. State v. Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280. In reviewing a trial court’s decision on a motion to suppress, the court’s findings of fact must be upheld unless they are clearly erroneous. Id. Whether the facts meet the standard to justify the stop is a question of law, which we review de novo. Id.

¶ 5. The State argues that the trial court erred as a matter of law in finding the stop here unjustified. Our case law is clear that if a violation has occurred — even a simple traffic violation — it is reasonable for the police to stop a driver. “A police officer is authorized to make an investigatory stop based on a reasonable and articulable suspicion of criminal activity, or of a traffic violation.” State v. Davis, 2007 VT 71, ¶ 7, 182 Vt. 573, 933 A.2d 224 (mem.) (emphasis added, quotation omitted). In State v. Doyon, 171 Vt. 546, 758 A.2d 816 (2000) (mem.), an officer observed the defendant driving erratically, and then driving down the center of several dirt roads. Although the defendant in Doyon was driving on an unpaved road, presumably without a center line, we held that “[gliven [the] defendant’s failure to stay to the right, as required by statute, the officer was justified in stopping him.” Id. at 546, 758 A.2d at 817.

¶ 6. In similar cases, we have found stops justified where officers had reason only to suspect that a noncriminal motor vehicle code violation occurred. For example, we held in State v. Beauregard that “a noisy exhaust system can provide a reasonable basis for a motor vehicle stop,” since the law requires that mufflers be “in good mechanical condition.” 2003 VT 3, ¶¶ 4, 6, 175 Vt. 472, 820 A.2d 183 (mem.). Similarly, in State v. Thompson, we held that police officers were justified in stopping drivers whose cars lacked a driver-side mirror and a bumper. 175 Vt. 470, 471, 816 A.2d 550, 552 (2002) (mem.). Since cars without those parts would not pass inspection, the police had a reasonable suspicion that the defendants were in violation of the law by operating vehicles without valid inspection certifications. Id.; see also State v. Lussier, 171 Vt. 19, 36, 757 A.2d 1017, 1029 (2000) (“Because defendant’s passenger vehicle had only one functioning taillight and thus was not properly equipped [per statute], the arresting officer had a reasonable and articulable basis for stopping the vehicle to issue a citation or merely inform the operator of the problem.”). In the present ease, although unconvinced that defendant’s leftward drift was blameworthy, significant, or indicative of any greater wrongdoing, the court credited the officer’s testimony that defendant crossed the center line. This was sufficient to authorize the stop.

¶ 7. The trial court explained that the arresting officer’s uncertain testimony as to the time and distance of the violation led to two disparate conclusions: that the stop was based on a momentary crossing of the center line, or that the stop was based on a lengthier and more egregious violation. The court focused on the disparity between these two versions, opining that only the second version described a violation serious enough to raise a suspicion of DUI. Resorting to a “totality of the circumstances” analysis, the court concluded that the State failed to meet its burden to prove a reasonable and articulable suspicion of criminal activity to warrant the stop. In so holding, the lower court erred as a matter of law.

¶ 8. It is true that where no traffic violation exists we look to the totality of the circumstances in judging the reasonableness of a DUI stop. See State v. Pratt, 2007 VT 68, ¶¶ 5-6, 182 Vt. 165, 932 A.2d 1039 (where defendant’s car was weaving within his lane, police officer, based on the totality of the circumstances, had sufficient reasonable suspicion of DUI to stop even though no traffic violation occurred). But where the stop is otherwise authorized, law enforcement may briefly detain a vehicle for further inquiry as long as the “police intrusion proceed[s] no further than necessary to effectuate the purpose of the stop.” State v. Sprague, 2003 VT 20, ¶ 17, 175 Vt. 123, 824 A.2d 539; see also State v. Theetge, 171 Vt. 167, 171, 759 A.2d 496, 499 (2000) (reversing suppression decision and remanding for further proceedings where investigation of car parked in highway breakdown lane resulted in DUI charge).

¶9. Here, the trial court found that defendant failed, either briefly or at length, to abide by the “drive to the right” statute. The court’s inability to determine the length and degree of the violation was immaterial to its initial finding that the officer saw defendant cross the center line. Since the perceived traffic violation constituted a reasonable and articulable basis for the stop, it was error to further scrutinize the violation for additional indicia of DUI or some other criminal offense in order to justify the officer’s intervention.

¶ 10. In sum, the trial court found that defendant crossed the center fine, and therefore erred as a matter of law in finding the stop unlawful. There is no dispute as to the reasonable suspicion of DUI and DLS arising from facts developed by the police after the initial, and valid, stop. The suppression order is accordingly reversed and the case remanded for additional proceedings.

Reversed and remanded.

1 In her dissent, our sister Skoglund denies that the court below made these findings of fact, post, ¶ 14, but the record reads to the contrary. The trial court related the following:

Based on the applicable law and the credible evidence presented the court issues the following decision:

FACTS

On December 28, 2008, Berlin Police Officer Christopher Alting was on patrol traveling east towards Barre on Route 302 in Berlin (the Barre-Montpelier Road). He had been following a vehicle for approximately a half to one mile, and as the vehicle passed east of Richardson Road he observed the car cross over the center line of the highway. Until that point the officer had observed no erratic operation, excessive speed, or other motor vehicle violations by the operator. As the vehicle went through a curved portion of the highway the officer observed both the front and rear tires of the vehicle, from a quarter to one half of the vehicle, cross the center line. The officer’s testimony as to the distance, as well as the time, the vehicle traveled in this manner varied greatly ... During the time of the alleged violation there was no oncoming traffic in the opposite lane of travel. The driver then returned to his proper lane of travel....

(Emphases added.)

The trial court went on to note that defendant, too, “believes he crossed the center line,” but at a spot in the highway where the markings were ambiguous and not clearly visible. The reference to the violation as “alleged” is put in context later by the court’s explanation that, in its view, a momentary crossing of the line suggested no criminal wrongdoing worthy of a stop, while a more significant or dangerous failure to stay right would have justified a stop.

Certainly the court did not credit all of the officer’s testimony For example, although reciting the fact that the officer testified about the time and distance of the infraction, the court accepted none of the contents of that testimony as fact, and described the officer’s testimony in this regard as varying and uncertain. No such reservation is evident, however, in the court’s unequivocal finding that the officer saw defendant’s car cross the center line, although the court explained that it could not, based on the same officer’s testimony, determine if the crossing was serious enough to support a suspicion of criminal activity

As discussed further, infra, ¶¶ 5-9, the court’s emphasis on the seriousness of defendant’s failure to keep right, and on the inferences of crime that could or could not be drawn from it, was an incorrect application of the law, since a lawful stop in this case did not depend on a significant violation or a reasonable suspicion of criminal misconduct.