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



                                           ENTRY ORDER

                             SUPREME COURT DOCKET NO. 2015-427

                                      SEPTEMBER TERM, 2016

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Franklin Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Brenda Wright                                         }    DOCKET NOS. 846-7-15 Frcr &
                                                       }                70-7-15 Frcs

                                                            Trial Judge: Robert A. Mello

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

        Defendant appeals from the trial court’s denial of her motion to suppress and dismiss in
these consolidated driving-under-the-influence (DUI) and civil suspension proceedings. She
argues that the court erred in concluding that the officer had reasonable suspicion to stop her. We
affirm.

        Following a hearing on defendant’s motions, the trial court made the following findings.
Late at night in mid-July 2015, a police dispatcher received a 911 call from a clerk who worked at
a gas station and convenience store in St. Albans, Vermont. The clerk identified himself or herself
by name and reported that a woman had driven to the store, was stumbling around, and appeared
to be drunk. The clerk described the woman’s vehicle, including its license plate number. The
court found that it was unclear as to whether the clerk actually saw the woman driving the vehicle,
either when she came to the store or when she left the store.1 Following the 911 call, the dispatcher
put out a “be on the look-out” alert for the vehicle.

         In response, a police officer drove to the gas station in question. He arrived within a few
minutes of the alert and observed a vehicle pulling out of the parking lot. The vehicle matched the
clerk’s description, including the license plate number. The officer turned on his emergency lights
to stop the vehicle, and it took the operator a minute and eighteen seconds to pull over. The officer
testified that this was significant to him because operators usually pull over immediately, as the
law requires. The officer stated that he was behind defendant’s vehicle for the entire period with
his lights and sirens engaged while she was traveling below the speed limit; she did not
immediately pull over despite ample space to do so. When defendant did stop, the officer identified
her as the operator of the vehicle and based on information obtained during the stop, defendant
was charged with DUI.

       Based on its findings, the court concluded that the officer had a “reasonable and articulable
suspicion of illegal activity” that justified the investigatory stop. State v. Rutter, 2011 VT 13, ¶ 8,

         1
             The record is silent on whether there was another person in the vehicle.
189 Vt. 574 (mem.). As set forth above, the officer received a tip that defendant was intoxicated
and that she had arrived in a vehicle with a particular license plate. Considering the totality of the
circumstances, the court concluded that the tip carried “enough indicia of reliability” for the officer
to have relied on it. State v. Kettlewell, 149 Vt. 331, 335 (1987). The clerk identified himself or
herself, claimed that defendant was intoxicated based on specific observed actions, he or she
reported that defendant had come to the store in a particular car and immediately thereafter, the
officer corroborated that information by observing that same vehicle pulling out of the gas station’s
parking lot. Relying on our case law, the court concluded that presenting specific, predictive
information about a suspect’s itinerary that is not available to the public at large is a powerful
indicium of reliability and the fact that the clerk identified himself or herself further bolstered the
caller’s credibility. Navarette v. California, 134 S. Ct. 1683, 1689 (2014) (concluding that tip was
reliable where caller provided specific identifying information about vehicle, made report
immediately after incident occurred, police confirmed vehicle’s location shortly thereafter, and
caller used 911 emergency system, which recorded caller’s voice and provided another indicator
of veracity); State v. Lamb, 168 Vt. 194, 197 (1998) (concluding that anonymous tip was reliable
where informant predicted defendant’s movements with specificity, predictions were verified by
officer, and caller’s general identity was plainly inferable from her report).

        The court rejected defendant’s assertion that the tip, standing alone, was insufficient to
provide the officer with reasonable suspicion that she was DUI because the informant never
claimed to see her operate the vehicle and drive away from the store. The court found that this
argument implied that it was the informant’s knowledge that determined reasonable suspicion
when, in reality, it was the officer’s knowledge. In this case, the officer saw a vehicle with the
license plate identified by the clerk leaving the store immediately after the 911 call. Although the
officer may not have been certain that defendant was the driver, “reasonable suspicion need not
rule out the possibility of innocent conduct.” Navarette, 134 S. Ct. at 1691 (quotation omitted).
The officer was not obligated to wait for defendant to engage in erratic driving before stopping
her, particularly given the grave risk of harm posed by drunk drivers. See Lamb, 168 Vt. at 200
(stating that courts should consider “the gravity of the risk of harm . . . in evaluating the
reasonableness of the investigatory stop”). The court reasoned that requiring the officer to take
the time to verify that defendant—whom the officer had reasonable suspicion to believe was
intoxicated—was actually the driver in her own vehicle “might well result in the death of an
innocent user of our highways.” State v. Tucker, 878 P.2d 855, 864 (Kan. 1994). The court thus
concluded that the officer’s stop was constitutional, and it denied the motion to suppress and
dismiss. The court entered judgment for the State in the civil suspension proceedings, and
defendant entered a conditional guilty plea to DUI. These appeals followed.

        Defendant argues on appeal that the officer lacked reasonable suspicion to stop her because
he could not testify that anyone saw a drunk woman get behind the wheel of her car. Defendant
maintains that there was no evidence to show that the clerk saw defendant drive to the store or
drive off in the identified car. According to defendant, the tip was incomplete because it did not
allege an actual crime and it could not form the basis for reasonable suspicion that a crime was
being committed.

       On review, we will uphold the court’s factual findings unless clearly erroneous. State v.
Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15 (quotation omitted). We review the court’s legal
conclusion as to the legality of the stop de novo. Id. We agree with the trial court that the stop
was justified here.



                                                  2
       As indicated above, a police officer may “make an investigatory stop based on a reasonable
and articulable suspicion of criminal activity.” Id. The officer needs “more than an
unparticularized suspicion or hunch of criminal activity, but needs considerably less than proof of
wrongdoing by a preponderance of the evidence.” Id. Courts “must consider the totality of the
circumstances in evaluating the validity of an investigatory seizure.” Kettlewell, 149 Vt. at 335
(explaining that test is “whether, based upon the whole picture, [an officer] . . . could reasonably
surmise that the particular vehicle [he] stopped was engaged in criminal activity” (quotation
omitted)). “Grounds for an investigatory stop are not limited to the officer’s own observations.
An informant’s tip, if it carries enough indicia of reliability, may justify a forcible stop.” Id.

         The trial court here found the clerk’s tip sufficiently reliable, and we find no basis to disturb
this finding. “Generally, information about criminal or suspicious activity from a citizen, who is
not a paid informant and is unconnected with the police, is presumed to be reliable.” Id. at 336.
The trial court accurately summarized the relevant case law in finding the tip reliable, and indeed,
defendant does not appear to challenge the reliability of the tip on appeal. See Navarette, 134 S.
Ct. at 1689 (explaining that where informant provides specific information related to report, such
as model and make of car and license plate number, caller necessarily claims eyewitness
knowledge of incident, and “[t]hat basis of knowledge lends significant support to the tip’s
reliability,” as does contemporaneous reporting of observed criminal activity, use of 911 system,
and police confirmation of vehicle’s predicted location). Instead, defendant contends that the
content of the tip did not provide the trooper with reasonable suspicion of a crime to justify an
investigatory stop. See id. at 1690 (“Even a reliable tip will justify an investigative stop only if it
creates reasonable suspicion that criminal activity may be afoot.” (quotation omitted)). We
disagree.

        In Kettlewell, we recognized that an officer is not justified in resting his suspicions on an
informant’s conclusory or unsupported “hunch.” Id. at 336-37 (discussing case in which caller’s
description of three young people in late model van selling antique dolls, who she believed should
be “check[ed] out,” did not provide officer with reasonable articulable suspicion to stop vehicle).
In Kettlewell, police officers, acting on a tip, effected a seizure of a camper. We concluded that
the tipster’s statement to police that there were two Mexican men on his property and that he “did
not know whether they were legal or not legal” was equivocal. Id. at 335. It provided no
information that would lead the police to suspect that the men were illegal aliens; the reporter did
not even say that he suspected that the men were illegally in the country. Id. at 339 (“What is
absent is any facts or inferences indicating that these Mexicans were illegal aliens.”). We
concluded that, based on the information provided, the officers could not “reasonably surmise”
that the men were illegal aliens, and thus, the investigative seizure was unlawful. Id. at 339
(internal quotation marks omitted).

        We reached a contrary conclusion in State v. Boyea, 171 Vt. 401 (2000). In that case, a
police officer received a radio dispatch that described a particular car traveling in a particular
location that was operating erratically. The dispatch was based on an anonymous tip. Within five
minutes of the dispatch, the officer observed the vehicle described and stopped it. The defendant
was subsequently arrested for DUI. We concluded that the officer had reasonable suspicion to
stop the defendant’s vehicle. We explained that the informant had “reported a vehicle operating
erratically; provided a description of the make, model and color of the subject vehicle, as well as
the additional specific information that it had New York plates; identified the vehicle’s current
location; and reported the direction in which it was traveling.” Id. at 410. The officer was able to
confirm the accuracy of the reported location within minutes, “thus supporting the informant’s
credibility and the reasonable inference that the caller had personally observed the vehicle. The
                                                    3
information that the vehicle was acting “erratically” equally supported a reasonable inference that
the driver might be intoxicated or otherwise impaired.” Id. We emphasized the grave risk posed
by drunk drivers, and concluded that “[b]alancing the public’s interest in safety against the
relatively minimal intrusion posed by a brief investigative detention, the scale of justice in this
case must favor the stop; a reasonable officer could not have pursued any other prudent course.”
Id. (citation omitted).

        Defendant contends that the tip here was like Kettlewell and other cases where courts have
concluded that the tip failed to allege that a crime had been committed. We disagree. The officer
here testified that he received word from central dispatch that a store clerk at a particular gas station
had called to report “that a female was in the store and that she had driven to the store and appeared
to be drunk.” The clerk provided the dispatcher with defendant’s location and license plate
number, supporting the notion that he had witnessed her exiting the car. The information provided
to the officer described a crime—defendant had driven to the gas station in a particular car while
intoxicated. When the officer saw the vehicle in question within several minutes of the alert, it
was reasonable for him to presume that defendant, who had driven to the store while possibly
intoxicated, was now driving her car from the store while intoxicated. As the trial court found, the
reasonableness of the stop was further enhanced by “the gravity of the risk of harm.” Id. (“We
have consistently recognized the serious threat posed to public safety by the frequency with which
individuals, while under the influence of intoxicating liquor, continue to operate motor vehicles
on the public highways.” (quotation omitted)). As in Boyea, the public interest in safety
outweighed the relatively minimal intrusion here, and the officer acted reasonably in stopping the
vehicle. Id.; see also Lamb, 168 Vt. at 199 (“The potential risk of harm to the defendant and the
public is widely acknowledged to be a critical factor in assessing the reasonableness of an
investigatory stop.”).

        None of defendant’s arguments persuade us otherwise. The State did not need to establish
the clerk actually saw defendant drive to the store, just as we have not required it to show that an
anonymous tipster actually saw the “erratic” driving that he or she reported to police. The question
is what information was relayed to the officer and whether that report should be deemed reliable.
See Navarette, 134 S. Ct. at 1688 (recognizing that “anonymous tip alone seldom demonstrates
the informant’s basis of knowledge or veracity . . . because ordinary citizens generally do not
provide extensive recitations of the basis of their everyday observations, and an anonymous
tipster’s veracity is by hypothesis largely unknown, and unknowable”; question is whether tip “can
demonstrate sufficient indicia of reliability to provide reasonable suspicion to make an
investigatory stop” (quotations omitted)). The tip here was deemed reliable, and the tip—
defendant drove to the station and appeared intoxicated—provided sufficient information to
support the conclusion that a crime had been committed. See Kettlewell, 149 Vt. at 334 (“A police
officer may make a brief investigatory stop of a suspect based on less than probable cause to
believe that the suspect has committed or is about to commit a crime, as long as the stop is less
intrusive than a full-blown arrest and the investigating officer, based on objective facts and
circumstances, reasonably believes that the suspect is, or is about to be, engaged in criminal
activity.” (citation omitted)).

        The record does not support defendant’s assertion that the tip alleged merely “drunk
walking” or that the trial court found that “any possible connection between the tip and the car that
[the officer] pulled over was ‘unknown.’ ” The tip plainly connected defendant to driving the
identified vehicle. The car was stopped based on the tip and within minutes of the tip, and we
agree with the trial court that, given the gravity of the risk, the officer acted reasonably in stopping
the vehicle rather than taking time to verify that defendant, whom the officer had reasonable
                                                   4
suspicion to believe was intoxicated, was actually the driver in her own vehicle. See Navarette,
134 S. Ct. at 1691-92 (“Once reasonable suspicion of drunk driving arises, the reasonableness of
the officer’s decision to stop a suspect does not turn on the availability of less intrusive
investigatory techniques. This would be a particularly inappropriate context to depart from that
settled rule, because allowing a drunk driver a second chance for dangerous conduct could have
disastrous consequences.” (quotations and citations omitted)). Based on the totality of the
circumstances, the officer was justified in conducting an investigatory stop, and the court did not
err in denying defendant’s motion to suppress.

       Affirmed.

                                                BY THE COURT:

                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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