Traffic stop. Police questioning can constitute a detention requiring some level of objective justification under Terry. Divided SCOVT suppresses evidence where “pointed questions” about criminal activity amounted to detention requiring reasonable suspicion, which was lacking in this case.

State v. Winters, 2015 VT 116 (filed 9/4/2015)

EATON, J. The trial court denied the defendant’s motion to suppress because the fact defendant was operating a motor vehicle with his license suspended fully justified stopping him. In the course of that stop, the troopers developed information that defendant was in possession of hypodermic needles and he had a prior drug conviction, which the trial court held sufficient to justify an escalation of the investigation. We reverse.

In the early morning hours of June 27, 2012, at the Vermont Welcome Center rest area just off I-91 in Guilford, a trooper observed defendant, a male, asleep in the driver’s seat of a vehicle. The trooper learned defendant’s identity and that his license was suspended, and spoke to defendant. After warning defendant not to drive and telling defendant to go back to sleep the trooper learned defendant had been arrested several times, with his most recent drug arrest in 2005. 

The trooper came back with another trooper and knocked on defendant’s window, rousing defendant from sleep. The trooper said that he had learned that defendant had been arrested for “some drug stuff in the past” and asked defendant if he was still involved in the drug trade. Defendant replied “no,” The trooper then asked, “Do you have anything that you’re not supposed to have on you? Do you have anything in the car you shouldn’t possess?” Defendant responded that he had needles but that they were old. 

The trooper then asked defendant if he would give consent to search his person or the vehicle. Defendant replied that he just wanted to go back to sleep. Defendant reached for a knife. The trooper pulled out his gun, and defendant put down the knife. After exiting the vehicle the Defendant eventually consented to search of his person and signed a consent form authorizing the troopers to search the vehicle. 

On appeal, defendant argues he was seized in violation of the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution. Specifically, defendant asserts that the driving-with-a-suspended-license (DLS) investigation had concluded, and that the trooper needed, and lacked, reasonable suspicion to conduct a drug investigation. We agree.

Reasonable suspicion of a traffic violation can form the basis for a valid stop, but the detention must be temporary and last no longer than necessary to effectuate the purpose of the stop. We reject the notion that there was an “ongoing” DLS violation that authorized the trooper to continue to approach the car again and again, as long as defendant sat behind the wheel.

If, during the course of an investigative stop, an officer gathers additional information providing reasonable suspicion that some other criminal activity is afoot, the officer may extend the detention to investigate that activity. However there is a point at which questioning constitutes “a detention requiring some level of objective justification.” State v. Pitts, 2009 VT 51, ¶ 8, 186 Vt. 71, 978 A.2d 14.

Pointed questions about drug possession or other illegal activity in circumstances indicating that the individual is the subject of a particularized investigation may convert a consensual encounter into a Terry stop requiring objective and articulable suspicion under the Fourth Amendment.” Id. ¶ 9; Terry v. Ohio,, 392 U.S. 1, 27-29 (1968).

The officer’s actions here—approaching and waking defendant, concluding the first interaction, and then returning with a second trooper, waking defendant again, and asking him pointed questions about criminal activity—is not the type of “mere questioning” that is not a seizure.

A reasonable person would have felt he was the subject of a particularized inquiry, and would not have felt “at liberty to ignore the police presence and go about his business.” It is significant that this encounter occurred after the first had conclusively ended. The officer had left the scene, telling defendant to “rack out.” Given this instruction to defendant, the officer’s subsequent return with another trooper would make a reasonable person less likely to believe that he could voluntarily terminate the encounter. We conclude that the officer’s field inquiry was converted into a Terry stop at the outset of the second encounter when the officer asked pointed questions of defendant.

At that point, the officer did not have reasonable suspicion of criminal activity. He had not gleaned any information on his first approach to indicate that defendant had any contraband, and defendant’s stale arrest record did not provide the officer with reasonable suspicion. The officer was acting solely upon his hunch of current drug possession based primarily upon stale information. This hunch did not amount to reasonable articulable suspicion. Because defendant was illegally seized, his subsequent “consents” to the search of his person and car, which occurred very shortly thereafter, were tainted.

The motion to suppress should have been granted. Reversed and remanded.

DOOLEY, J., dissenting. The majority essentially creates a “per se” rule that asking “pointed questions” about possible criminal activity transforms a consensual encounter between a police officer and a citizen into a seizure under the Fourth Amendment to the United States Constitution. In doing so, it ostensibly relies on our decision in State v. Pitts, 2009 VT 51, 186 Vt. 71, 978 A.2d 14, and certain decisions from other jurisdictions that support Pitts. But the majority’s per se rule goes well beyond Pitts and beyond the decisions in any other jurisdiction, except one. Further, its reliance on the term “pointed questions” creates a vague standard, one that no other jurisdiction adopts in defining a Fourth Amendment seizure. For these reasons, I dissent.

I would affirm the trial court’s decision that the trooper had reasonable suspicion of criminal activity and that the necessary information was assembled before the encounter escalated into a seizure. I would not adopt a per se rule that “pointed questions” create a seizure and dissent from the majority’s adoption of such a rule. I would not join the mandate even if I agreed with the majority’s position that there was a seizure before reasonable suspicion was present because defendant waived his right to appeal the voluntariness of his consent to search.

I am authorized to state that Chief Justice Reiber joins this dissent.