State v. Young (2009-252) (29-Oct-2010) 2010 VT 97(Dooley, J.)

Defendant Jason Young appeals from the denial of his motion to suppress evidence, obtained by a police officer after defendant drove into the driveway of the officer’s house.

A little past ten o’clock on a mid-summer’s eve, after socializing with friends, defendant departed Barre in his pick-up truck to return to his home in Marshfield, triggering an improbably unlucky sequence of events.

Shortly after defendant turned onto Plainfield Brook Road, a vehicle approached his truck from behind. The vehicle was “approaching pretty rapidly,” so Defendant decided to take his next right onto Cassie Street, “assuming the vehicle would continue straight past.”

Much to defendant’s dismay, the vehicle followed. Defendant turned right at his next opportunity, this time pulling onto Valley View Circle. Again, the vehicle followed.

Defendant next began to search for an “available driveway to turn around in easily” and made his choice. He pulled into the driveway, “assum[ing] the vehicle behind [him] would continue past.”

It did not.

Defendant testified to thinking that, “coincidentally, the person must live there.” He was correct.

What he did not realize at the time, however, was that the person who followed him and lived in the house was an off-duty police officer dressed in plain clothes.

Defendant put his truck in reverse and began to back out, but the vehicle pulled into the driveway, blocking defendant from exiting the driveway. After blocking defendant in his driveway the officer observed that defendant “smelled strongly of alcohol, had bloodshot and watery eyes, and had slurred speech.”

The trial court concluded that the officer was acting as a homeowner during this initial encounter, and not as a police officer, and thus, that no seizure occurred until the officer next ordered defendant out of his truck and requested that he perform the sobriety tests.

We agree with the trial court that there was no seizure until the officer had grounds to do so. We concur with the trial court’s conclusion that the officer was initially acting as a concerned homeowner, and not as a police officer, and that his conduct during the initial encounter therefore fell outside the scope of the Fourth Amendment.