Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                    SUPREME COURT DOCKET NOS. 2015-461& 2015-470

                                          JUNE TERM, 2016

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Rutland Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Justin Barrell                                        }    DOCKET NOS. 40-3-15 Rdcs &
                                                                        338-3-15 Rdcr

                                                            Trial Judge: Thomas A. Zonay

                          In the above-entitled causes, the Clerk will enter:

       The State appeals the court’s order granting defendant’s motion to suppress evidence
obtained following a motor-vehicle stop. On appeal, the State argues that the stop was properly
based on the officer’s reasonable suspicion that a traffic violation had occurred. We affirm.

       Following an incident in March 2015, defendant was charged with first-offense driving
while under the influence (DUI), and civil suspension proceedings were initiated against him.
Defendant moved to suppress, arguing that there was an insufficient basis for the motor-vehicle
stop.

        After an evidentiary hearing, the court found the following facts. A member of the
Rutland City Police was traveling East on West Street and was stopped at the intersection with
North Main Street. At that location, West Street has three eastbound lanes. There is a crosswalk
crossing north to south, and a few feet behind that is a solid stop line for the right and center
lanes. The solid stop line for the left lane is set back more than a car length from the other two
lines. The officer was stopped in the center lane and observed a grey vehicle, which was
traveling south on Main Street, turn right onto West Street. The vehicle made a wide turn into
the unmarked area in front of the left-turning-lane stop line, but did not cross the marked left-
turn line. Based on a belief that a motor-vehicle violation had occurred, the officer made a U-
turn and followed the vehicle. He ran the license plate and discovered the vehicle was registered
to defendant. The officer activated his blue lights and stopped the vehicle. His subsequent
observations led to the DUI charge.

        Defendant moved to suppress the evidence obtained as a result of the stop, arguing that
the stop was not supported by reasonable suspicion. Defendant asserted that his wide right turn
was necessitated by the position of other vehicles and was within the bounds of normal vehicle
operation. The State alleged that the stop was proper because defendant’s action of turning
widely provided the officer with reasonable suspicion that defendant violated the statute on
“turning at intersections,” which provides that when a driver makes a right turn, “[b]oth the
approach for a right turn and a right turn shall be made as close as practicable to the right-hand
curb or edge of the roadway.” 23 V.S.A. § 1061(1).

        The trial court found that there was insufficient basis to support reasonable suspicion.
The court explained that the statute’s focus was on whether a turn was made “as close as
practicable” to the curb, and although the evidence showed that defendant made a wide turn,
there was no evidence to indicate the practicality of driving closer to the curb, including the
presence of other persons, vehicles, or obstructions. The court also found it significant that the
area defendant turned into was not marked as part of the lane for cars waiting to turn left.
Therefore, the court concluded that the State’s evidence fell short of establishing a reasonable
suspicion of a traffic violation, and granted the motion to suppress. The State appealed from the
civil suspension case and was granted permission to appeal in the criminal matter. The two
appeals were consolidated for review.

        This Court reviews the trial court’s decision on a motion to suppress under a dual
standard. The factual findings are upheld unless clearly erroneous, and the legal conclusions are
reviewed de novo. State v. Mara, 2009 VT 96A, ¶ 6, 186 Vt. 389. “An investigatory stop is
warranted when a police officer has a reasonable and articulable suspicion of illegal activity.”
State v. Rutter, 2011 VT 13, ¶ 8, 189 Vt. 574 (mem.). Reasonable suspicion consists of “more
than an unparticularized suspicion or hunch of criminal activity,” but it is “less than proof of
wrongdoing by a preponderance of the evidence.” Id. (quotations omitted). Reasonable
suspicion of a traffic violation is sufficient to warrant a traffic stop. Id. The critical question is
not whether a traffic offense was actually committed, but “whether the officer had a reasonable
basis to suspect that a motor vehicle violation was taking place.” Id. ¶ 10.

        On appeal, the State argues that the stop was proper because even if defendant did not
actually violate § 1061(1), there were sufficient facts to suspect that he had. The State contends
that whatever other circumstances might have actually existed that precluded defendant from
staying closer to the curb, the evidence that defendant’s vehicle strayed into the space for the
left-turning traffic before correcting course was enough to provide the officer with reasonable
suspicion that a traffic violation had occurred. According to the State, the trial court gave
improper significance to fact that the area defendant’s vehicle traveled into was unmarked and
improperly required the State to prove that defendant could not actually drive more closely to the
curb.

         We conclude that the court properly granted the motion to suppress because the State
failed to establish that there was reasonable suspicion that a traffic violation had occurred. The
traffic violation at issue requires drivers turning right to maintain an approach and path “as close
as practicable to the right-hand curb or edge of the roadway.” 23 V.S.A. § 1061(1). Reasonable
suspicion depends on an assessment of the totality of the circumstances. Rutter, 2011 VT 13,
¶ 11. Therefore, as the trial court noted, in assessing the totality of the circumstances, one
important fact was the practicality of driving closer to the curb. The court found that the State
did not submit any evidence on this question, including what other circumstances existed at the
time, such as the absence or presence of persons, obstacles or other vehicles in the area between
defendant’s vehicle and the curb. This was an important piece of the totality of the
circumstances, and without it the court did not err in concluding that the officer’s observations
amount to an “ ‘inchoate and unparticularized suspicion.’ ” State v. Sutphin, 159 Vt. 9, 11
(1992) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).



                                                  2
        The State contends that the trial court went outside the record and improperly bridged
evidentiary gaps in the record when, based on the recessed location of the solid line for the left-
turn lane, the court stated that “common experience identifies this marking configuration as one
which is intended to take into account that vehicles negotiating turns from North Main Street
onto West Street will need to travel into the unmarked area to safely make the turn.” The
purpose of the placement of the lane markings is not relevant to our conclusion. The point is that
there was no reasonable suspicion that defendant committed an independent offense by
interfering with oncoming traffic or crossing a lane marking into a space for that traffic.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




                                                3
