2013 VT 15


State v. Dunham (2012-130) and
State v. Tatham et al. (2012-137)
 
2013 VT 15
 
[Filed 01-Mar-2012]
 
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.
 
 

2013 VT 15 

 

Nos. 2012-130 & 2012-137

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Orange Unit,


 


Criminal Division


 


 


Todd Dunham


November Term, 2012


 


 


State of Vermont 
 
     v.
 
Heidi Tatham
 


 


Harold
  E. Eaton, Jr., J.
 


Michael
  Kainen, Orange County Deputy State’s Attorney,
  Chelsea, for Plaintiff-Appellee.  
 

Christopher A. Dall of DesMeules, Olmstead & Ostler,
Norwich, for Defendant-Appellant
  Dunham.
 
George E. Spaneas,
Lebanon, New Hampshire, for Defendant-Appellant Tatham.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.  The question presented by this consolidated
appeal is whether a police officer’s visual estimate of defendant’s speed can
support a reasonable suspicion to warrant a traffic stop.  Defendants Todd
Dunham and Heidi Tatham argue that a visual estimate
amounts to nothing more than a mere hunch or guess, and fails to provide
objective grounds for a traffic stop.  We disagree and affirm the denial
of defendants’ motions to suppress.
¶ 2.            
The facts in both cases are not in dispute.  Just before midnight
on December 10, 2011, a Vermont State Trooper, stationed in a convenience store
parking lot in Fairlee, Vermont, observed a truck
operated by defendant Todd Dunham traveling south on U.S. Route 5.  As the
truck neared the intersection of Lake Morey Road, approximately one hundred
feet from where the officer was parked, its tires spun and it appeared to
accelerate rapidly.  Due to his position, the officer was unable to use
his radar to determine the truck’s speed, but as the truck passed and traveled
away from the officer, he visually estimated the speed of the truck to be
forty-five miles per hour in a posted thirty-miles-per-hour zone.  The
officer acknowledges that the truck was not speeding when it approached the
intersection.  In fact, the officer had to turn and look over his
shoulder to keep the truck in view.  He did not testify as to how long he
observed the truck or how far away it was when he estimated its speed. 
¶ 3.            
Having decided the truck was speeding, the
officer pulled onto Route 5, followed the truck, and effected a traffic
stop.  Defendant Dunham was thereafter cited for driving under the
influence and issued a civil suspension notice.  Defendant filed a motion
to suppress challenging the underlying stop, which was denied.  Defendant
appeals the denial of his motion to suppress, arguing that the officer’s visual
speed estimate did not provide reasonable suspicion for the traffic stop. 
¶ 4.            
On the night of September 15, 2011, a Vermont State Trooper traveling on
Barton Street approached the intersection of Barton and Main Street in the Town
of Bradford.  He observed defendant Heidi Tatham
driving along Main Street.  He estimated defendant’s speed to be
approximately forty miles per hour in a posted twenty-five-miles-per-hour
zone.  Because he was perpendicular to the vehicle when it went by, he was
unable to target the vehicle with radar.  The officer followed and stopped
the vehicle with the intention of writing a warning ticket for speeding but
ended up processing her for driving under the influence.  Defendant
Tatham filed a motion to suppress all evidence
obtained from the stop, arguing the traffic stop was not based on reasonable
suspicion.  The motion to suppress was denied and now forms the basis of
her appeal.
¶ 5.            
In reviewing a motion to suppress, we apply a deferential standard of
review to the trial court’s findings of fact.  State v. Bain, 2009
VT 34, ¶ 15, 185 Vt. 541, 975 A.2d 628.  Findings
of fact shall be upheld unless “there is no reasonable or credible evidence to
support them.”  Id. (quotation omitted).  “Legal conclusions
are reviewed de novo.”  Id. (quotation omitted). 
¶ 6.            
Defendant Tatham first challenges the court’s
factual finding that the officer had sufficient time to accurately estimate the
speed at which defendant was traveling.  She argues that the
officer’s two-second, nighttime observation was not sufficient to gauge the
speed of her car.  The court found that the officer had “sufficient time
to render an opinion as to the speed” and because of the officer’s training and
experience, his opinion was given with reasonable accuracy.  Basing its
conclusion on the credible testimony of the officer, the court reasoned that
the officer’s observation, though brief, provided sufficient time for him to
observe the vehicle as it traveled on a path perpendicular to his own, allowing
a strong line of observation.  Because the court’s conclusion is
reasonable and supported by the officer’s testimony, it is not one that we will
disturb.  See id. ¶¶ 16-17.
¶ 7.            
As a matter of law, both defendants argue that a visual estimate of
speed provides an insufficient ground to justify a traffic stop.  The
Fourth Amendment to the United States Constitution protects the right of the
people against unreasonable searches and seizures.  U.S. Const. amend. IV. “Temporary detention of individuals during the
stop of an automobile by the police, even if only for a brief period and for a
limited purpose, constitutes a ‘seizure’ of persons within the meaning of [the
Fourth Amendment].”  Whren v. United States, 517 U.S. 806, 809-10 (1996). 
It is well settled that police may stop a vehicle “to investigate a reasonable
and articulable suspicion that a motor vehicle violation is taking
place.”  State v. Lussier, 171 Vt. 19,
34, 757 A.2d 1017, 1027 (2000); see also United States v. Moore, No. 10
Cr 971(RJH), 2011 WL 6325973, at *4 (S.D.N.Y. Dec. 19, 2011) (“Because an ordinary
traffic stop constitutes a limited seizure within the meaning of the Fourth
Amendment, such stops must be justified by probable cause or a reasonable
suspicion.”(quotation and alteration omitted)). 
 
¶ 8.            
Reasonable and articulable suspicion does not require proof beyond a
reasonable doubt or even proof by a preponderance of the evidence that criminal
activity is afoot.  See State v. Simoneau,
2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280. 
Rather, the officer needs more than only an “inchoate and unparticularized
suspicion or ‘hunch’ ” to make a lawful investigatory stop.  State v. Sutphin, 159 Vt. 9, 11,
614 A.2d 792, 793 (1992) (quotations and alteration omitted).  A
mere conclusory statement as to a violation will not
suffice.  State v. Wood, No. 2010-350, 2011 WL
4976125, at *2 (Vt. Apr. 21, 2011) (unpub. mem.), http://www.vermontjudiciary.org/d-upeo/upeo.aspx. 
In sum, an officer must articulate facts, which, in light of his experience and
personal knowledge, together with reasonable inferences drawn from those facts,
would warrant a temporary intrusion on the freedom of the person
detained.  The issue of whether a reasonable suspicion supports a
particular stop is factually driven, and depends on the totality of the
circumstances.  State v. Kettlewell,
149 Vt. 331, 335, 544 A.2d 591, 594 (1987).  We conclude that there
was a legal basis for the stop in both cases.
¶ 9.            
Many courts have held that a sufficiently trained officer’s visual
estimate of speed can supply reasonable suspicion to justify a traffic stop,
and in some cases, probable cause.  See United States v. Colden,
No. 11-M-989-SKG, 2011 WL 5039777, at *2 (D. Md. Oct. 21, 2011) (citing City
of Barberton v. Jenney, 929 N.E.2d 1047 (Ohio 2010)); Sazenski
v. Comm’r of Pub. Safety, 368 N.W.2d 408, 409
(Minn. Ct. App. 1985); see also United States. v. Ludwig, 641 F.3d 1243,
1247-48 (10th Cir. 2011) (finding “that an officer’s visual estimation can
supply probable cause to support a traffic stop for speeding in appropriate
circumstances”); State v. Allen, 978 So. 2d 254, 256 (Fla. Dist. Ct.
App. 2008) (After noting that “[o]ther states have
also concluded that an officer’s observations of a vehicle may provide
reasonable suspicion that the vehicle is speeding,” court held detective’s
observations of defendant’s speed were sufficient to establish probable cause
to stop vehicle for traffic infraction); State v. Barnhill, 601 S.E.2d
215, 218 (N.C. Ct. App. 2004) (allowing officer’s visual estimations of speed
to establish probable cause for stop).  Further, a police officer does not
need to know the exact speed at which an automobile is traveling in order to
make a stop for a traffic violation.  Dillard v.
State, 550 S.W.2d 45, 53 (Tex. Crim. App. 1977). 
More often, evidence that officers receive proper
roadside and academy training, spend considerable time on road patrol, gain
experience estimating speed and comparing estimates against radar, and
historically exhibit a margin of error of only a few miles per hour, serves
to qualify officers to estimate speed.  People v. Correia, 531 N.Y.S.2d 998, 1001 (N.Y. Vill. Ct. 1988); see also Ludwig, 641 F.3d at
1247-48; United States v. Lork, 132 F. App’x 34, 35 (5th Cir. May 20, 2005) (per curiam); Colden, 2011 WL 5039777, at *2.  
¶ 10.         In
both cases, the lower courts deemed the officers’ visual estimate credible.
 The officers in both instances underwent specialized training in visual
speed estimation for radar certification.  This training included watching
vehicles, estimating their speed, and then confirming the speed estimate by use
of radar.  To successfully complete this aspect of radar training, it was
necessary for the officers to estimate vehicle speed to an accuracy of five
miles per hour.  Both officers successfully completed the training in 2006
and have continued to make visual estimates of speed when stopping vehicles for
speeding violations—each making anywhere from one to three thousand motor
vehicle stops for excessive speed.  Both believed their estimations
have dramatically improved over time and that they are capable of estimating
speed within five miles per hour of the radar speed reading nearly every
time.  Cf. State v. Estes, 223 P.3d 287, 290-91 (Idaho Ct. App.
2009) (holding that trained officer’s visual speed estimate was insufficient to
convict defendant of speeding where officer’s testimony failed to reveal
accuracy rates for visual speed estimations). 
¶ 11.         What
is more compelling in these cases, is the fact that in both instances the observed
speed was significantly higher than the posted speed limit, such that the
difference would be discernible to a casual observer, particularly a trained
law enforcement officer.  See United States v. Sowards,
690 F.3d 583, 591 (4th Cir. 2012) (“[W]here an officer estimates that a vehicle
is traveling in significant excess of the legal speed limit, the speed
differential—i.e., the percentage difference between the estimated speed and
the legal speed limit—may itself provide sufficient ‘indicia of reliability’ to
support an officer’s probable cause determination.”); Barnhill, 601
S.E.2d at 218 (“[I]t is not necessary that an officer have specialized training
to be able to visually estimate the speed of a vehicle,” even a lay person is
entitled to testify as to visual estimation of speed); see also United
States v. Banks, No. 2:08–cr–19–FtM–29SPC, 2008 WL 4194847, at *1, *4 (M.D. Fla. Sep. 11,
2008) (finding probable cause where officer observed vehicle traveling at high
rate of speed, estimated to be around fifty miles per hour in a
thirty-miles-per-hour zone, making it extremely obvious to the officer that vehicle was speeding); State
v. Butts, 269 P.3d 862, 873 (Kan. Ct. App. 2012) (finding reasonable
suspicion where officer estimated vehicle to be traveling at a rate of
forty-five miles per hour in a thirty-miles-per-hour zone); cf. Sowards, 690 F.3d at 591-92 (finding officer’s
uncorroborated visual estimate of defendant traveling seventy-five miles per
hour in a seventy-miles-per-hour speed limit zone insufficient to justify stop,
and holding “where an officer estimates that a vehicle is traveling in only
slight excess of the legal speed limit, and particularly where the alleged
violation is at a speed differential difficult for the naked eye to discern, an
officer’s visual speed estimate requires additional indicia of reliability to
support” a stop).  Here, defendant Tatham was
observed traveling forty miles per hour in a twenty-five-miles-per-hour
zone—roughly 60% above the limit.  Defendant Dunham was also observed
traveling at a high rate of speed—forty-five miles per hour in a posted
thirty-miles-per-hour zone.  Because both defendants were estimated to be
traveling in significant excess of the posted speed limits, where the speed
differential would be obvious to a casual observer, we find such facts give
strong indicia of reliability to support the trial court’s findings.  
¶ 12.         It is
not disputed that both officers’ conclusions would have been further bolstered
by referencing time and distance, pacing methods, or through mechanical
verification; nonetheless, based on the significant speed differentials, as
well as the officers’ experience and training, we find that the trial courts’
conclusions that both officers had reasonable suspicion to effect the traffic
stop is supported by the evidence. 
¶ 13.         We
are persuaded that the lower courts’ factual findings were supported by
substantial competent evidence and, given the totality of the circumstances,
the lower courts did not err in concluding that the officers here had
reasonable suspicion to believe that both defendants were traveling in
violation of the posted speed limit.  We, therefore, affirm the denial of
defendants’ motions to suppress.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 

