State v. Siergiey

582 A.2d 119, 155 Vt. 78, 1990 Vt. LEXIS 169
CourtSupreme Court of Vermont
DecidedAugust 10, 1990
Docket87-430
StatusPublished
Cited by10 cases

This text of 582 A.2d 119 (State v. Siergiey) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Siergiey, 582 A.2d 119, 155 Vt. 78, 1990 Vt. LEXIS 169 (Vt. 1990).

Opinion

Peck, J.

Defendant appeals his convictions of operating a motor vehicle while under the influence of intoxicating liquor, in violation of 23 V.S.A. § 1201(a)(2), and driving while his license to operate was suspended, contrary to the provisions of 23 V.S.A. § 674. His appeal rests on three claims: that the initial stop by the police that led to the charges was unlawful; that certain testimony by the arresting officer was improperly admitted at trial; and that the prosecutor’s closing argument included facts not in evidence. We affirm.

I.

Defendant first claims that the police officer’s “stop” of his car violated his rights under the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution, in that it was not based on a reasonable and articulable suspicion that a violation of the motor vehicle laws *80 was taking place. See State v. Boardman, 148 Vt. 229, 231, 531 A.2d 599, 601 (1987). The pertinent facts are as follows. Officer Ernest Rheaume of the South Burlington police was contacted by another officer who had received a citizen complaint of an automobile being driven in an erratic manner; the complainant also provided the officer with the vehicle’s registration plate number. Rheaume ran a registration check and learned the car was owned by defendant and that his address was on Simpson Court. He proceeded to the address and observed the car with the reported plate number on a side street travelling “extremely slowly.” After the car turned onto Simpson Court, Rheaume turned around to follow and activated his blue light. The car did not stop but continued along Simpson Court and then pulled into the driveway at defendant’s address. Rheaume pulled over and approached the vehicle on foot, noting, as defendant emerged from the car, obvious signs of intoxication. Defendant claimed later that he had not been aware of the police car or the flashing light until he got out of his car.

Defendant contends that the tip, although coupled with the observation of slow driving, was insufficient to constitute the reasonable suspicion required for an investigatory stop under the Fourth Amendment and Article 11. We disagree. Even assuming that activation of the cruiser’s flashing light constituted a “stop” in the constitutional sense, * see Michigan v. Chesternut, 486 U.S. 567, 575-76 (1988) (no stop where police cruiser, without siren or flashing lights, followed alongside defendant running on sidewalk), we hold that the officer had reasonable grounds to take such measures.

In State v. Kettlewell, 149 Vt. 331, 335, 544 A.2d 591, 594 (1987), we said that the test “in evaluating the validity of an investigatory seizure ... is ‘whether, based upon the whole picture, [the agents]... could reasonably surmise that the particu *81 lar vehicle they stopped was engaged in criminal activity.”’ (quoting United States v. Cortez, 449 U.S. 411, 421-22 (1981)). Investigatory stops are permitted where “specific and articulable facts which, together with the rational inferences taken therefrom, reasonably warrant the intrusion.” State v. Ryea, 153 Vt. 451, 454, 571 A.2d 674, 675 (1990); see also Terry v. Ohio, 392 U.S. 1, 21 (1968); State v. Lambert, 146 Vt. 142, 143, 499 A.2d 761, 762 (1985). The requisite “level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.” United States v. Sokolow, 490 U.S. 1, 7,109 S. Ct. 1581, 1585 (1989). Defendant offers no reasons to adopt different principles under the Vermont Constitution.

Here, the officer’s “whole picture” included the specific facts of a citizen complaint of erratic driving, along with the vehicle’s registration number, and the officer’s own observation of the defendant driving “extremely slowly” — as the officer testified, 5 to 10 m.p.h. in a 35 m.p.h. zone. The tip was not anonymous (although Officer Rheaume did not himself know who had given it), and there were no special reasons to doubt its reliability. “Generally, information about criminal or suspicious activity from a citizen, who is not a paid informant and is unconnected with the police, is presumed to be reliable.” Kettlewell, 149 Vt. at 336, 544 A.2d at 594. For purposes of this case, however, we need not determine whether the tip alone would justify a stop, nor whether the observation of “extremely slow” driving by itself would be sufficient. Taken together, the information available to the officer combined with his own observations was adequate to warrant an investigatory stop. Indeed, in Lambert, we upheld the validity of a vehicle stop where the officer, “lacking personal knowledge and observing no erratic behavior before the stop, based the stop solely on thirdhand.hearsay.” 146 Vt. at 143, 499 A.2d at 762. Certainly, courts have upheld investigatory stops on less information than was transmitted to and observed by Officer Rheaume. See, e.g., State v. Czmowski, 393 N.W.2d 72, 72-74 (S.D. 1986) (vehicle stop upheld where based on anonymous call that car was being driven erratically and only corroboration was finding described car in area) (citing cases).

*82 II.

Defendant next claims that the arresting officer’s observations of his behavior and demeanor were disclosed at trial in violation of his right not to be compelled to incriminate himself. See Miranda v. Arizona, 384 U.S. 436 (1966). Over objection, the officer testified that, during processing, the defendant was “abusive, arrogant, incoherent, very talkative, evasive.” Defendant asserts that this evidence, albeit nontestimonial, should have been suppressed as a product of illegal police interrogation.

Even assuming that the officer’s interrogation in this case violated defendant’s Miranda rights, and that his observations of defendant’s behavior and demeanor were thereby excludable — both questions we do not decide today — it is apparent from the record that the officer’s testimony was solidly based on observations made both prior to any unlawful interrogation that might have occurred and during routine questioning for DUI booking. That questioning was not of an incriminatory nature and therefore not subject to the Fifth Amendment privilege. See Pennsylvania v. Muniz, — U.S. —, —, 110 S. Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Bui
190 P.3d 192 (Hawaii Intermediate Court of Appeals, 2008)
In re Nontestimonial Identification Order Directed to R.H.
762 A.2d 1239 (Supreme Court of Vermont, 2000)
In Re RH
762 A.2d 1239 (Supreme Court of Vermont, 2000)
State v. Lussier
757 A.2d 1017 (Supreme Court of Vermont, 2000)
State v. Cooper
652 A.2d 995 (Supreme Court of Vermont, 1994)
State v. Welch
650 A.2d 516 (Supreme Court of Vermont, 1994)
State v. Marcello
599 A.2d 357 (Supreme Court of Vermont, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
582 A.2d 119, 155 Vt. 78, 1990 Vt. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-siergiey-vt-1990.