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.

Use of abusive or obscene language is not disorderly conduct unless likely to cause an imminent violent response in the average listener.

State v. Tracy, 2015 VT 111  (filed 8/28/2015)

ROBINSON, J. Defendant David Tracy was convicted of disorderly conduct following a heated exchange with his daughter’s basketball coach. The trial court, in a bench trial, concluded that defendant’s language was not protected by the First Amendment to the United States Constitution because it constituted “fighting words,” and found defendant guilty of an “abusive or obscene language” charge under 13 V.S.A. § 1026(a)(3) (“A person is guilty of disorderly conduct if he or she, with intent to cause public inconvenience or annoyance, or recklessly creates a risk thereof . . . in a public place, uses abusive or obscene language”)

 On appeal, defendant argues that the speech for which he was convicted is constitutionally protected. After saying that “he just wanted to know why [the coach] wouldn’t put his daughter in a game,” defendant used profanity repeating, “Why can’t you put her in a game for one f’ing minute?” He called the coach “a bitch,” and said, “You are not the fucking NBA,” and “This is fucking unbelievable.”  We agree that the speech for which defendant was convicted is beyond the reach of the abusive-language prong of the disorderly-conduct statute, and reverse the conviction.

This Court has construed § 1026(a)(3) as reaching only “fighting words,” a category of speech that is not synonymous with threats or tumult. “Fighting words” must be understood in light of the US. Supreme Court’s evolving case law concerning the Constitution’s commitment to protecting even vile, offensive, hurtful, and exceptionally insulting speech. There are no “per se” fighting words. The use of foul language and vulgar insults is insufficient. A likelihood of arousing animosity or inflaming anger is insufficient. The likelihood that the listener will feel an impulse to respond angrily or even forcefully is insufficient. Courts must assess all the relevant circumstances to determine whether the words were likely to result in an imminent violent response.

The provision only reaches speech that, in the context in which it is uttered, is so inflammatory that it is akin to dropping a match into a pool of gasoline. Defendant’s expression here does not fall in this exceedingly narrow category of statements that are reasonably expected to cause the average listener to respond with violence.

Reversed.

Jury trial. Outcome of bench trial on claims for equitable relief reversed because jury trial on legal claims should have come first. Defense of equitable estoppel requires jury trial.

LeBlanc v. Snelgrove, 2015 VT 112 (filed 8/28/2015)

ROBINSON, J. This case arises from a landowner’s replacement of a boathouse on his property . The case includes claims for declaratory and injunctive relief, as well as damages on account of the landowner’s alleged trespass. Plaintiff neighbors challenge the trial court’s conclusions that the landowner was entitled to build the encroaching structure by virtue of a deeded easement and that they cannot prevail in a claim for trespass on account of consent or estoppel. Because the court improperly addressed the issues of consent and estoppel in derogation of the neighbors’ request for a jury trial, we reverse.

At a pretrial conference the day before the jury trial the court indicated that it would first try the boundary issues as a bench trial before having the parties present their other claims to the jury. Three days before the jury portion of the trial, the court orally issued its findings and conclusions from the bench trial as to the location of the boundary line. The court concluded that equitable estoppel prevents the Plaintiffs from now complaining about the design and location of the retaining walls or from arguing that the boathouse easement did not encompass the right to extend the boathouse and its associated retaining walls when necessary to repair or replace the boathouse. The Plaintiffs filed a timely motion for a new trial arguing that the court’s decision from the bench trial exceeded its permissible scope and deprived them of a jury trial. The court denied the Plaintiffs’ motion, reasoning that the Plaintiffs had sought injunctive relief in their complaint and that all of the issues before the court required application of the law, and were thus mixed questions of fact and law properly decided by the court.

On appeal the Plaintiffs renew their argument that the trial court’s approach deprived them of the right to a jury trial in connection with their claims for unlawful mischief, ejectment, trespass, and conversion, in which they sought legal damages as well as injunctive relief. The Plaintiffs argue that the court erred when it decided these issues in a bench trial since both parties demanded a jury trial on all issues triable by a jury, and neither party stipulated to a bench trial on these issues.

This Court has held that entitlement to a jury trial is dependent upon the relief requested. If the relief requested is equitable, no right to a jury trial exists. If the relief requested is legal, then the right to a jury trial attaches. The right to trial by jury attaches to claims traditionally tried in a court of law. In this case, the Plaintiffs have made a claim for damages based on causes of action for ejectment, unlawful mischief, and trespass. Actions for recovery of possession of real property and for damage to property were historically actions at law. Accordingly, the Plaintiffs were entitled to trial by jury on these legal claims.

The Plaintiffs ‘right to a jury trial also includes a right to trial by jury on the factual issues underlying the defense of equitable estoppel. See, e.g., Mellin v. Flood Brook Union School Dist., 173 Vt. 202, 222-23, 790 A.2d 408, 425-46 (2001) (jury entitled to decide facts underlying equitable-estoppel defense); see also Jamison, Money, Farmer & Co., P.C. v. Standeffer, 678 So. 2d 1061, 1067 (Ala. 1996) (holding that because evidence concerning defense of equitable estoppel was in dispute, issue was properly presented to jury); Ala. Power Co. v. Gielle, 373 So. 2d 851, 853 (Ala. Civ. App. 1979) (holding that question of whether plaintiffs’ predecessor had knowledge of utility pole located on subject property was question for jury in resolving defense of equitable estoppel in action for trespass and ejectment); Hunstein v. Fiksman, 615 S.E.2d 526, 528 (Ga. 2005) (“Estoppel is usually an issue of fact to be decided by the jury.” (quotation omitted)); Creech v. Melnick, 495 S.E.2d 907, 913 (N.C. 1998) (“[W]here the evidence raises a permissible inference that the elements of equitable estoppel are present, but where other inferences may be drawn from contrary evidence, estoppel is a question of fact for the jury, upon proper instructions from the trial court.”).

Where a case involves both legal and equitable claims, the jury verdict must come first, after which the court may issue findings on the equitable claims that must be consistent with the jury verdict. See V.R.C.P. 39(d). Reporter’s Notes—1985 Amendment, V.R.C.P. 39(d); Retrovest Assocs., Inc. v. Bryant, 153 Vt. 493, 495 n.1, 573 A.2d 281, 282 n.1 (1990). The trial court’s approach flipped this process.

The court should have first allowed the jury to decide the factual questions that underlay both the legal and equitable claims. In addressing the parties’ equitable claims for relief, the court should have then ensured that its own findings were consistent with the jury’s. Accordingly, the court was not authorized to determine in the first instance that the retaining wall did not constitute a trespass by virtue of any agreement of the parties. Likewise we cannot uphold the trial court’s determination that there was no trespass to the extent that it rests on the court’s application of the principles of equitable estoppel. Therefore we reverse the court’s determination that no trespass occurred.

The trial court’s rulings on the Plaintiffs’ claims for trespass, ejectment, and unlawful mischief are reversed, and those matters are remanded for a new trial consistent with this opinion.