








2014 VT 131











State v. Hinton (2014-163)
 
2014 VT 131
 
[Filed 12-Dec-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 



2014 VT 131



 



No. 2014-163



 



State of Vermont 


Supreme Court




 


 




 


On Appeal from




     v.


Superior Court, Chittenden
  Unit,




 


Criminal Division




 


 




Matthew Hinton


October Term, 2014




 


 




 


 




Michael
  S. Kupersmith, J.




 



Gregory Nagurney, Deputy State’s
Attorney, Montpelier, for Plaintiff-Appellee.
 
Jessica Burke of Burke Law, P.C.,
Burlington, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund and Robinson, JJ.,
and Morse, J. (Ret.), 
                    
Specially Assigned
 
 
¶ 1.            
DOOLEY, J.   Defendant appeals from the civil
suspension of his driver’s license and his conditional guilty plea to driving
under the influence (DUI).  He argues that the police lacked reasonable
grounds to stop him, and thus, the court should have granted his motion to
suppress and dismiss.  We affirm.
¶ 2.            
The trial court made the following findings, none of which defendant
challenges on appeal.  Around 7 p.m. on December 28, 2013, a police
officer responded to a report of a downed tree on Osgood Hill Road in the Town
of Essex.  The tree had broken off about fifteen feet above the ground and
was partially blocking the roadway.  The officer considered the tree a
danger to passing motorists.  He could not remove the tree himself and
radioed the highway crew for help.
¶ 3.            
While waiting for the highway crew to arrive, the officer drove one or
two miles to the south end of Osgood Hill Road to warn drivers about the
blockage and to inform northbound drivers of an alternate route via Route
128.  The officer parked approximately 200 yards north of the intersection
of Osgood Hill Road and Route 128, facing north.  When a car approached,
the officer would activate his blue lights and speak to the driver.  He
would advise the driver to take the alternate route if the driver’s destination
was north of 201 Osgood Hill Road.  The officer spoke to about four
drivers before encountering defendant.  
¶ 4.            
Shortly after 8 p.m., the officer saw the headlights of defendant’s
truck approaching his position, and he activated his blue lights to signal
defendant to stop.  Defendant stopped about 150 feet from the police
cruiser.  The officer motioned defendant to approach but defendant instead
pulled his truck onto the right shoulder.  The officer thought defendant
might be confused about the situation, and he approached the truck to explain
what was going on.  
¶ 5.            
When the officer told defendant about the downed tree, defendant offered
to remove the tree himself with a hatchet.  The officer explained to
defendant why this was impractical.  Defendant continued to insist that he
could remove the tree.  During the conversation, the officer noticed that
defendant’s eyes were bloodshot and watery.  Additionally, defendant
seemed confused by the officer’s explanation about taking an alternate
route.  The officer also observed the bottom of what appeared to be a wine
or liquor bottle lying on the truck’s passenger seat.  Defendant tried to
hide the bottle by moving a paper bag over it.  When the officer asked
defendant about the bottle, defendant showed him a different bottle. 
Defendant denied to the officer that he had been drinking.  At that point,
the officer asked defendant to exit his truck and perform field-sobriety
exercises, which led in turn to processing defendant for DUI.
¶ 6.            
Based on these facts, the court denied defendant’s motion to
suppress.  It concluded that, at the time of his encounter with defendant,
the officer was performing a community-service function commonly expected of
police officers.  It found that the officer activated his lights and
approached defendant’s car, not to investigate a crime, but to advise defendant
of an obstruction in the road and to inform him of an alternate route.  It
concluded that the officer reasonably assumed that defendant was confused by
the situation and further that the officer’s observations suggesting that
defendant was impaired justified further investigation.  Following the
court’s ruling, defendant entered a conditional guilty plea to DUI.  This
appeal followed.
¶ 7.            
Defendant argues on appeal that the officer made a “stop”—a “seizure”
under the Fourth Amendment—and that the stop was not justified on any grounds,
including the community-caretaking doctrine.  Defendant maintains that,
for the community-caretaking doctrine to apply, the State must show that there
was an emergency, that he was in distress, or that he otherwise needed
assistance.  He argues that he exhibited no indicia of distress, and that
he was not in any imminent danger.  
¶ 8.            
“On appeal of a motion to suppress, we review the trial court’s legal
conclusions de novo and its factual findings for clear error.”  State v. Button, 2013 VT 92, ¶ 8, 195 Vt. 65, 86 A.3d 1001
(quotation omitted).  Because the defendant challenges only the
trial court’s legal conclusion, our review here is de novo.  We hold that,
assuming that a stop occurred, the officer’s actions
were justified under the community-caretaking doctrine and did not violate the
Fourth Amendment.  The motion to suppress was therefore properly denied.
¶ 9.            
Generally speaking, a police officer must have “reasonable and
articulable suspicion that someone is engaged in criminal activity, or is
violating a motor vehicle law, before conducting an investigatory stop.”  State v. Marcello, 157 Vt. 657, 657-58, 599 A.2d 357, 358
(1991) (mem.).  Under some circumstances, however, a police officer
without reasonable suspicion of criminal activity may “intrude on a person’s
privacy to carry out ‘community caretaking’ functions to enhance public
safety.”  Id. at 658, 599 A.2d at 358.
 “The distinguishing feature of a stop and seizure under the community
caretaking exception is that it is generated from a desire to aid victims
rather than investigate criminals.”  State v.
Campbell, 173 Vt. 575, 576, 789 A.2d 926, 928 (2001) (mem.) (quotation omitted).  “The key to such constitutionally
permissible police action is reasonableness.”  Marcello, 157 Vt. at
658, 599 A.2d at 358.
¶ 10.         We
recognized in Marcello that “the police have an essential role as public
servants to assist those in distress and to maintain and foster public
safety.”  Id. (citation omitted).  Given this, we found it
reasonable for a police officer to stop a motorist after being told by another
motorist that “there’s something wrong with that [driver].”  157 Vt. at
657-58, 599 A.2d at 358.  We found that this
“excited utterance” provided the officer with “specific and articulable facts”
sufficient to justify a stop for safety reasons.  Id. at 658, 599 A.2d at 358.  Because the officer did not know the
nature of the defendant’s problem, which might have involved serious illness or
physical injury, “[t]he most reasonable course of action . . . was to
immediately stop the vehicles to determine if assistance was needed.”  Id.

¶ 11.         We
have considered the community-caretaking doctrine in numerous cases since Marcello,
although none involve facts similar to those presented here.  See, e.g., Button,
2013 VT 92, ¶¶ 2-5, 10-18 (concluding, in “close case,” that stop was not
justified under community-caretaking doctrine where officer simply decided to
follow defendant, who was driving on rural road late at night, and then
approached defendant’s car to see if defendant was okay less than a minute
after defendant pulled to side of road); State v. Edwards, 2008 VT 23, ¶
6, 183 Vt. 584, 945 A.2d 915 (mem.) (officer could reasonably believe that
defendant needed assistance based on abnormal and unsafe location of
defendant’s car, which was parked barely off travel lane of highway, late at
night, and near curve); State v. St. Martin, 2007 VT 20, ¶¶ 7-8, 181 Vt.
581, 925 A.2d 999 (mem.) (defendant’s momentary misuse of high-beam headlights
did not pose “real, imminent risk to the public” sufficient to justify stop); Campbell,
173 Vt. at 575-76, 789 A.2d at 927-28 (officer reasonably believed that car’s
occupants were seeking his assistance where vehicle flashed its lights at
officer at 2 a.m. on stormy night and defendant’s car was parked in information
booth parking lot); State v. Burgess, 163 Vt. 259, 260, 262, 657 A.2d
202, 202-04 (1995) (stop not justified where automobile was legally parked in
designated pull-off area with engine running and parking lights on).  In
all of our cases, the touchstone has been the “reasonableness” of the officer’s
actions.  See Edwards, 2008 VT 23, ¶ 8 (“Since Marcello, the
test for the community caretaking exception for a traffic stop has consistently
turned on whether there were specific and articulable facts objectively leading
the officer to reasonably believe that the defendant was in distress or needed
assistance, or reasonably prompted an inquiry in that regard.” (citing cases)).  
¶ 12.         Defendant
argues that like the defendant in Button, he was merely sitting in his
car and not exhibiting any indicia of distress when the officer made the
unreasonable decision to approach his vehicle.  Defendant has taken
discussions in our cases that describe elements of community caretaking
applicable to the specific facts of the cases and generalized that the
exception applies only when the defendant is in need of assistance.  He
fails to appreciate the application of the doctrine to “community” caretaking, that is, assisting the general populace. 
Necessarily, the doctrine applies whenever an officer is reasonably and
legitimately exercising a community-caretaking function, and not a criminal
investigation, and happens to obtain evidence of a crime.  Thus,
defendant’s argument ignores all the surrounding circumstances of this case and
the reasons for the officer’s actions as found by the trial court.  As
discussed in greater detail below, when those circumstances are taken into
account, it is evident that the officer’s decision to approach defendant’s car
and engage defendant in conversation was eminently reasonable.  
¶ 13.         The
United States District Court for the District of Vermont reached the same
conclusion based on similar facts in United States v. Touzel,
409 F. Supp. 2d 511 (D. Vt. 2006).  In that case, two police officers were
directing traffic at the scene of a late-night motor vehicle accident in a
rural area.  The road was icy and blocked by downed power lines.  One
officer parked his cruiser diagonally across the highway to stop traffic and
prevent motorists from driving through the downed lines.  The other
officer was some distance away on the other side of the accident site. 
The defendant drove up to one of the officers, who signaled him to stop and
advised him of the accident.  The defendant appeared confused during his
conversation with police.  Id. at 515. 
The defendant later consented to a search of his vehicle, where drugs were discovered. 
Id. at 516.
¶ 14.         The
defendant filed a motion to suppress and dismiss, arguing that the officer
committed an unreasonable seizure by stopping and questioning him upon his
arrival at the accident scene.  Id. at 518. 
The court denied the motion.  It found that “[m]anagement
of traffic at the scene of a motor vehicle accident falls within an officer’s
community caretaking function.”  Id. at 519.
 Thus, the “temporary detention of a driver is reasonable within the
meaning of the Fourth Amendment if it is necessary to protect public
safety.”  Id.; see also United States v. King, 990 F.2d
1552, 1560-61 (10th Cir. 1993) (holding that officer at accident scene was
justified in approaching defendants’ car and could have briefly detained
defendants to inform driver of hazardous conditions and advise him to cease
honking his horn).  
¶ 15.         The
federal court found the officer’s decision “to stop [the defendant]’s car, warn
him of the accident, and direct him to turn around was unquestionably a valid
exercise of the community caretaking function.”  Touzel, 409 F. Supp. 2d at
519.  In light of the hazardous road conditions, the court found
the officer’s action “necessary for [the defendant’s] safety and for that of
others on the road.”  Id.  It found the officer’s inquiries
into the defendant’s route and destination equally within the scope of the
community-caretaking function because the accident had closed a major highway,
and it was reasonable to offer motorists assistance regarding alternate routes. 
“On a dark, icy night,” the court explained, “such assistance might well be
necessary not only for motorists’ convenience, but also their safety.”  Id. 
The fact that officer acted in a similar fashion for at least one other
motorist reinforced the court’s conclusion that the officer’s initial
interaction with the defendant was an exercise of community caretaking.  Id. 
The court thus concluded that the officer did not violate the defendant’s
rights by stopping his car, engaging him in conversation about his travel
plans, and following up with additional questioning when the defendant’s
answers aroused suspicion.  
¶ 16.         We
reach the same conclusion here.  Defendant parked his police cruiser to
warn approaching motorists of a hazard in the road.  The trial court found
that in doing so, the officer was acting to perform “a non-investigatory
community service.”  Thus, in the words of Cady v. Dombrowski,
the leading decision from the United States Supreme Court, the officer was
exercising functions “totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute.” 
413 U.S. 433, 441 (1973).  The officer had warned
four other motorists before encountering defendant, and, in fact, warned others
while talking with defendant.  When defendant did not pull forward so the
officer could talk with him, the officer reasonably concluded that defendant
was confused about the situation.  He approached defendant’s truck to warn
him of the danger and to offer an alternative route.  Under these
circumstances, it was objectively reasonable for the officer to inquire of
defendant “if assistance was needed.”  Marcello, 157 Vt. at 658, 599 A.2d at 358. 
¶ 17.         Defendant
criticizes the officer’s method of warning and diverting motorists, arguing
that the officer should have remained by the downed tree and directed motorists
to turn around without stopping them or talking with them.  As we stated
recently in Button, “[i]t is important to
respect law enforcement officers’ judgment in their exercise of the community
caretaking function.”  2013 VT 92, ¶ 19.  In
short, we will not second-guess how an officer chooses to respond to an
emergency situation if, as here, the response is reasonable.
¶ 18.         The
trial court properly denied the motion to suppress and dismiss. 
Affirmed.
 
 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 

