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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-153

                                        MARCH TERM, 2017

State of Vermont                                       }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Addison Unit,
   v.                                                  }    Criminal Division
                                                       }
                                                       }
Jeffrey Giknis                                         }    DOCKET NO. 359-8-15 Ancr

                                                            Trial Judge: John W. Valente

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

       Defendant appeals from his conditional guilty plea to driving under the influence of alcohol
(DUI). He argues that the court erred in denying his motion to suppress. We affirm.

        Defendant was charged with DUI following an early morning roadside stop. The stop was
based in part on a tip. Defendant moved to suppress the evidence against him, arguing that the tip
was unreliable and that there was no other basis for the stop. Following a hearing, the court denied
the motion. It made the following findings. On the night in question, two patrol officers received
information from a police dispatcher about a possibly impaired driver. The dispatcher told the
officers that a convenience store clerk had reported that a person who appeared to be intoxicated
had just entered the store, attempted to purchase alcohol after hours, left the store, entered a red
truck, and drove northbound on Route 22A. The officers were given a description of the truck, its
license plate number, and the direction of travel. The officers observed the truck leave Route 22A
and head north on Route 7. While traveling on Route 7, the truck signaled a left turn near a church,
but failed to turn. The officers also observed the truck weaving within its lane. One of the officers,
Sergeant Newton, testified that these actions indicated a potentially impaired driver. Shortly
thereafter, the officers stopped the truck. Defendant exhibited physical signs of impairment, and
he was charged with DUI. At some point after the DUI processing, Sergeant Newton learned that
the person whom the clerk had observed in her store was a passenger in the red truck, not the
driver.

         Defendant argued that the clerk’s mistake was fatal, and that the police could not rely on
the tip in making the stop. The court rejected this argument. It concluded, first, that the tip had
sufficient indicia of reliability to support the stop. The court cited the fact that the clerk was an
identifiable person rather than an anonymous tipster; she described an intoxicated person and
identified a particular vehicle; and she predicted the vehicle’s path. Additionally, the court found
that the tip, in conjunction with the officer’s observations of defendant’s driving, provided the
officer with a reasonable and articulable suspicion that defendant was DUI. Defendant entered a
conditional guilty plea to DUI, reserving the right to challenge the court’s suppression ruling. This
appeal followed.
         We begin with the general legal principles applicable to this case. “A police officer is
authorized to make an investigatory stop based on a reasonable and articulable suspicion of
criminal activity. The officer must have more than an unparticularized suspicion or hunch of
criminal activity, but needs considerably less than proof of wrongdoing by a preponderance of the
evidence.” State v. Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15 (citations omitted). Courts “must
consider the totality of the circumstances in evaluating the validity of an investigatory seizure.”
State v. Kettlewell, 149 Vt. 331, 335 (1987) (explaining that test is “whether, based upon the whole
picture, [an officer] . . . could reasonably surmise that the particular vehicle [he or she] 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. On review of a motion to suppress, we will uphold the
court’s factual findings unless clearly erroneous. Simoneau, 2003 VT 83, ¶ 14. We review the
court’s legal conclusion as to the legality of the stop de novo. Id.

       Defendant first argues that, to meet its burden of proof, the State was required to show
what the store clerk communicated to the police dispatcher, rather than what the dispatcher
communicated to the patrol officers. He maintains that there is no evidence of the clerk’s
statements that would allow for an examination of the basis of the clerk’s knowledge, reliability,
or accuracy. Defendant thus argues that the State failed to show that the tip to dispatch contained
information triggering a reasonable, articulable suspicion of DUI. Relying on this premise,
defendant reasons that because the tip to dispatch lacked sufficient information for reasonable
suspicion, the “bulletin” from dispatch to the responding officers also did not provide reasonable
suspicion. In support of this argument, defendant relies heavily on United States v. Hensley, 469
U.S. 221 (1985), which involved a stop based on a “wanted” flyer.

         Defendant did not argue below that the State must prove what the clerk communicated to
the police dispatcher rather than what the dispatcher communicated to the police officers who
made the stop. He waived this argument by failing to raise it below. In any event, defendant fails
to show any error, let alone plain error. See State v. Mead, 2012 VT 36, ¶ 27, 192 Vt. 1 (identifying
test for plain error). Defendant relies on case law that is inapposite. There is a distinction between
“wanted flyers” or “conclusory directives” that may come from police bulletins and cases “where
the dispatcher merely passes on the facts upon which the officer in the field makes a decision as
to whether there is a reasonable suspicion for a stop.” 4 W. LaFave, Search & Seizure: A Treatise
on the Fourth Amendment, “Information via Police Channels,” § 9.5(j) (5th ed.); see also id.
“Information from an Informant,” § 9.5(i) (recognizing that “the central issue as to this category
is whether the informant’s information is so reliable and complete that it makes past, present or
pending criminal conduct sufficiently likely to justify a stopping of the designated person for
investigation”). The case on which defendant primarily relies, Hensley, 469 U.S. 221, involves
the first category. The instant case involves the second category.

        In Hensley, a police department issued a “wanted flyer” stating that a named individual
was wanted for investigation of an aggravated robbery. Id. at 223. The flyer described the
individual in question, and provided the date and location of the alleged robbery; it requested other
police departments to pick up and hold this individual if he was located. As is evident, the flyer
did not provide any specific factual information from which another officer could make his or her
own determination as to reasonable suspicion. It is in this context that the U.S. Supreme Court
held that “[a]ssuming the police make a Terry stop in objective reliance on a flyer or bulletin, . . .
the evidence uncovered in the course of the stop is admissible if the police who issued the flyer or
bulletin possessed a reasonable suspicion justifying the stop, and if the stop that in fact occurred

                                                  2
was not significantly more intrusive than would have been permitted the issuing department.” Id.
at 233 (citation omitted).

         The instant case, by contrast, involves the second category described above. A tipster does
not need to have reasonable suspicion that a crime has been committed before a police officer can
effectuate a Terry stop. Instead, it is the police officer who must decide, based on the information
provided, if a stop is warranted. Unlike Hensley, the officer here made his own determination,
based on the information relayed to him by the police dispatcher, as to whether a stop should be
made. In such circumstances, the appropriate inquiry is whether the tip, which alleged a crime—
that a possibly impaired driver was heading northbound on Route 22A—was sufficiently reliable
to justify the stop.

        The trial’s court inquiry was consistent with relevant case law, and we reject defendant’s
challenges to the court’s analysis. See Kettlewell, 149 Vt. at 336 (recognizing that “[g]enerally,
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”); see also Navarette v. California, 134
S. Ct. 1683, 1689 (2014) (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).

        As we have recognized, moreover, drunk drivers present a “high degree of danger,” and
“the level of danger that the tip reveals is a ‘crucial factor’ in ‘determining the reasonableness of
a police response and the reliability required of an informant’s tip.’ ” State v. Lamb, 168 Vt. 194,
199 (1998) (citation omitted). We agree with the trial court that the information provided to the
officers here via the tip—considered in conjunction with the officers’ observation of defendant’s
driving—justified an investigative stop. See State v. Pratt, 2007 VT 68, ¶¶ 6-7, 182 Vt. 165
(recognizing that reasonable suspicion of DUI requires examination of totality of circumstances,
and consequently it “may be supported by evidence of erratic driving, whether or not it amounts
to a specific traffic violation,” and further noting that “we rely on the expertise of the officer in
recognizing signs of impaired operation” and we recognize “the overwhelming weight of authority
from other jurisdictions holds that repeated intra-lane weaving can create reasonable suspicion of
impaired operation”).

        Defendant urges us to take a different view of the level of intra-lane weaving, and the
significance of his failure to turn after signaling for a turn. Viewing defendant’s behavior in its
entirety, the officer found his driving erratic and a sign of a possibly impaired driver. The court
credited the officer’s testimony, and we will not reweigh the evidence on appeal. State v. Mayo,
2008 VT 2, ¶ 14, 183 Vt. 113 (“The credibility of witnesses, weight of the evidence and its
persuasive effect are matters for the exclusive determination of the trier of fact,” and court’s
findings “must stand if supported by credible evidence, even though there may be inconsistencies
or substantial evidence to the contrary” (quotation omitted)).

        Finally, we reject defendant’s assertion that the court’s factual findings regarding the
content of the clerk’s tip and intra-lane weaving were clearly erroneous. Defendant takes issue
with the court’s finding that “[a]n identified person, a clerk at Champlain Farms reported that a
person who appeared to be intoxicated, had just entered the store, attempted to purchase alcohol
after hours, left the store, got in a red truck and drove northbound on Route 22A.” He cites “the
lack of evidence as to what transpired between the clerk and dispatch.” First, it is evident from

                                                 3
the context that in making this finding, the court is referring to the information provided to the
police by the police dispatcher. Even if it were not, the arresting officer testified that he received
information from dispatch that “the cashier from Champlain Farms had said that an intoxicated
person had attempted to purchase alcohol after hours, and then got in that truck and drove
northbound on 22-A.” This evidence supports the court’s finding.

        With respect to intra-lane weaving, the court found that the officer observed the truck
weaving within its lane. The court determined that the officer’s dashboard camera was too far
away to draw any conclusion with respect to weaving for the first thirty-five seconds of the
recording, and that in the following minute, the picture was unclear but appeared to show some
intra-lane weaving. The court credited the officer’s testimony that what he observes from the
patrol car is often more clear than the recording, and it credited his testimony that he observed
defendant weaving. Defendant argues that the court’s findings are clearly erroneous. According
to defendant, the videotape shows, at best, “extremely faint intra-lane weaving.” Defendant also
challenges the officer’s testimony that this weaving was a sign of a potentially impaired driver.
As set forth above, the court found the officer’s testimony credible and we will not reweigh the
evidence on appeal. See Pratt, 2007 VT 68, ¶¶ 6-7. We agree with the State, moreover, that any
distinction between defendant’s characterization of the videotape as showing “extremely faint
intra-lane weaving” and the court’s finding that it “was unclear but appeared to show some intra-
lane weaving” is insignificant. The court did not err in denying defendant’s motion to suppress.


       Affirmed.



                                                 BY THE COURT:

                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




                                                  4
