2010 VT 97


State v. Young (2009-252)
 
2010 VT 97
 
[Filed 29-Oct-2010]
 
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, Vermont Supreme Court, 109 State Street, Montpelier,
 Vermont05609-0801
of any errors in order that corrections may be made before this opinion goes to
press.

 
 

2010 VT 97 

 

No. 2009-252

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


District Court of Vermont,


 


Unit No. 3, Washington Circuit


 


 


Jason Young


March Term, 2010


 


 


 


 


Brian
  J. Grearson, J.


 

Thomas M. Kelly, WashingtonCountyState’s
Attorney, Barre, for Plaintiff-Appellee.
 
David Watts of Blodgett, Watts,
Volk & Sawyer, P.C., and Jason J. Sawyer, Law Office of 
  Jason J. Sawyer, Burlington, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
DOOLEY, J.   Defendant Jason Young appeals from the
denial of his motion to suppress evidence, obtained by a police officer after
defendant drove into the driveway of the officer’s house, and to dismiss his
civil and criminal cases.  Defendant contends that: (1) the trial court
erred in determining that he was not seized when the officer initially followed
him into the driveway; (2) the court erred in determining that the officer had
the requisite reasonable suspicion to order defendant to exit his truck; and
(3) the factual findings underlying the court’s order on the motion to suppress
were clearly erroneous.  For the reasons discussed below, we affirm.
¶ 2.            
A little past ten o’clock on a mid-summer’s eve, defendant departed
Barre in his pick-up truck to return to his home in Marshfield, triggering an
improbably unlucky—for him—sequence of events.  Defendant had been
socializing with friends after work and, as he put it, “had a couple of
drinks.”  Shortly after defendant turned onto Plainfield Brook Road, a vehicle
approached his truck from behind.  Defendant testified that the vehicle
was “approaching pretty rapidly,” so he decided to take his next right onto Cassie Street,
“assuming the vehicle would continue straight past.”  Much to defendant’s
dismay, the vehicle followed.  Defendant turned right at his next opportunity,
this time pulling onto Valley View
  Circle.  Again, the vehicle followed. 
Defendant next began to search for an “available driveway to turn around in
easily” and made his choice.  He pulled into the driveway, “assum[ing] the
vehicle behind [him] would continue past.”  It did not.  Defendant
testified to thinking that, “coincidentally, the person must live there.” 
He was correct.  What he did not realize at the time, however, was that
the vehicle was a police cruiser and the person who followed him and lived in
the house was an off-duty police officer dressed in plain clothes.[1]  

¶ 3.            
According to defendant’s testimony, the vehicle that had been following
him stopped along the side of the road when he pulled into the driveway. 
Defendant put his truck in reverse and began to back out, but the vehicle
pulled into the driveway blocking defendant from exiting the driveway. 
Defendant pulled forward and, while rolling down his window to see if the lumber
in his truck was going to hit anything, successfully navigated a turnaround so
that he was proceeding out of the driveway.  Defendant began rolling up
his window when he noticed the officer, in defendant’s words, “motion[] to me
to hold on, I think.”  It was only at this point that defendant at last
noticed that the vehicle allegedly blocking him was a police cruiser.  
¶ 4.            
Defendant further testified that with their driver’s-side windows open,
the officer asked defendant what he was doing in the driveway, to which
defendant replied that he was turning around.  The officer next asked him
where he was coming from and where he was going to, and defendant again gave
responsive answers.  The officer indicated that he could not hear
defendant very well, and asked him to turn off the truck.  He then “got
out of his vehicle, without moving it at all and walked over to [defendant’s]
window.”  Defendant expressly testified that the cars were not
side-by-side at that point, and that the officer had blocked him in the
driveway.[2] 
Defendant did not testify regarding any of the events that followed.
¶ 5.            
The officer’s testimony differed from that of defendant in several
important respects.  According to the officer, he was a “[l]ittle
concerned” when he observed defendant pull into his driveway after ten o’clock
at night, as his wife and children were inside the house.  The officer
testified that he had activated his garage door opener and that the door was
going up as defendant drove “all the way into [his] driveway, near the
door.”  The officer pulled the cruiser into the driveway and stopped at
the entrance to try to determine what defendant was doing.  Defendant then
“pulled forward, taking a rather wide turn, drove onto [his] lawn, straightened
out and came back out towards the entrance of the driveway.”  The officer
testified that defendant pulled his truck “pretty much side-to-side” with the
police cruiser, so that the two could talk through their driver’s-side windows,
and the cruiser did not block defendant’s truck from exiting the
driveway.  The officer also recounted that he did not roll down his window
until after he observed that defendant’s window was already down and that he
never motioned for defendant to stop or to roll down his window.  
¶ 6.            
According to the officer, he next asked defendant if he could help
him.  The officer testified that he “immediately detected a rather strong
odor of intoxicants come out of the vehicle, just by the windows being
down.”  When defendant indicated that he was turning around, the officer
“notice[d] the speech was somewhat slurred.”  Based on the odor of alcohol
emanating from the truck and the slurred speech, the officer asked defendant
how much he had had to drink that night.  Defendant allegedly responded,
“three or four,” followed by a short pause, and then, “maybe four or
five.”  After asking defendant a few more questions and requesting his
license, registration, and proof of insurance, all of which defendant provided
without difficulty, the officer asked defendant to step out of his truck to
perform certain sobriety tests.  According to the officer, before getting
out of his vehicle, the officer backed up his car so that he could open his car
door without hitting defendant’s truck.  After a preliminary breath test
indicated a BAC result of .178 percent and defendant exhibited difficulty
performing various sobriety tests, the officer processed defendant for driving
under the influence.  
¶ 7.            
Prior to trial, defendant moved to suppress the evidence obtained during
the driveway encounter and to dismiss the civil and criminal proceedings
against him.  Defendant argued that the police officer did not have “the
requisite reasonable and articulable suspicion to stop and seize [him],” and
lacked a “reasonable and articulable suspicion of DUI to order [him] to exit
his vehicle or proceed to process him for DUI.”[3]  He further argued that the
officer’s request that defendant take a preliminary breath test “was based upon
insufficient ‘reason to believe’ [defendant] was impaired.”  The trial
court denied the motion, first concluding that the initial encounter was not a seizure,
as the officer “was acting consistently with any other homeowner wondering what
this individual was doing all the way up his driveway late at night.”  The
court noted that “[i]t is reasonable for a homeowner in these circumstances to
stop an operator to inquire whether he is lost or in need of assistance.” 
In other words, the court concluded that the officer was acting as a homeowner
during the initial encounter, and not as a police officer.  The court
determined that no seizure occurred until the officer ordered defendant out of
his truck and requested that he perform the sobriety tests.  By this
point, the court concluded, the stop was justified, noting that defendant
“smelled strongly of alcohol, had bloodshot and watery eyes, and had slurred speech.” 

¶ 8.            
Defendant ultimately entered into a plea agreement with the State
conditioned on the outcome of this appeal.  On appeal, defendant argues
that the trial court erred in: (1) finding that the encounter between the
officer and defendant was not a seizure until defendant was ordered to exit the
truck; (2) finding that the exit order was based upon reasonable and
articulable suspicion; and (3) making its factual findings.  We reject
each of these arguments.
¶ 9.            
A motion to suppress raises a mixed question of law and fact.  State
v. Pratt, 2007 VT 68, ¶ 4, 182 Vt.
165, 932 A.2d 1039.  We review a trial court’s legal conclusions de novo
and accordingly afford them no deference.  State v. Fletcher, 2010
VT 27, ¶ 8, ___ Vt.
___, 996 A.2d 213 (mem.).  We give substantial deference, however, to the
trial court’s findings of fact and we will uphold them unless, “taking the
evidence in the light most favorable to the prevailing party, and excluding the
effect of modifying evidence, there is no reasonable or credible evidence to
support them.”  State v. Mayo, 2008 VT 2, ¶ 12, 183 Vt. 113, 945 A.2d 846
(quotation omitted).  When testimony conflicts, we will not disturb the
trial court’s decision to credit a particular witness absent some compelling
indication of error, Okemo Mountain, Inc. v. Lysobey, 2005 VT 55,
¶ 12, 178 Vt. 608, 883 A.2d 757, for it is within the province of the
trial court to assess witness credibility and the weight of the evidence. 
State v. Dixon, 2008 VT 112, ¶ 34,
185 Vt. 92,
967 A.2d 1114.
¶ 10.        
Defendant first contests the trial court’s conclusion that he was not
seized until the officer ordered him to exit the truck.  Defendant alleges
that the officer partially blocked his egress from the driveway with the police
cruiser and gestured for him to stop, and that this conduct amounts to an
unconstitutional seizure within the scope of the Fourth Amendment to the United
States Constitution.  In assessing this argument, we note that the police
officer testified that he did not block defendant’s egress and that he did not
motion for defendant to stop.  The trial court did not resolve the
conflict in the testimony, however, because it decided the motion on a
different theory.  Nevertheless, even accepting defendant’s version of
events as true, we agree with the trial court that there was no seizure until
the officer had grounds to do so.   In reaching this decision, we
concur with the trial court’s conclusion that the officer was initially acting
as a concerned homeowner, and not as a police officer, and that his conduct
during the initial encounter therefore fell outside the scope of the Fourth
Amendment.
¶ 11.        
We note, at the outset, that there is little question defendant would
have no constitutional claim if a private citizen, who is not a police officer,
engaged in the same conduct  as the officer in this case and, on observing
signs of intoxication, called the police.  Thus, our initial question is
whether an off-duty police officer can engage in the same conduct as a private
homeowner without causing an unconstitutional seizure.  Defendant’s
argument assumes that he cannot—that is, for Fourth Amendment purposes, an
officer must be viewed as a law enforcement agent and not a private homeowner,
even with respect to actions in his own driveway.  The law is decidedly
against defendant’s position.  See generally 1 W. LaFave, Search and
Seizure § 1.8(d), at 298 (4th ed. 2004) (“[A] search is private if the off-duty
officer was at that time acting as a private individual rather than as a
policeman.”).
¶ 12.        
The current state of the law is based on the fundamental proposition
that the “Fourth Amendment, and the accompanying rule of exclusion, apply only
to government action.”  Commonwealth v. Leone, 435 N.E.2d 1036,
1039 (Mass. 1982); see generally United
States v. Jacobsen, 466 U.S.
109, 113 (1984); Burdeau v. McDowell, 256 U.S. 465, 475 (1921).  This
proposition reflects not only the limit on the reach of the Fourth Amendment
but also the limited rationale of the exclusionary rule to deter
unconstitutional conduct, a rationale that would have little effect on a
private person who is not acting to secure a criminal conviction.  Leone,
435 N.E.2d at 439.
¶ 13.        
This proposition applies equally to governmental employees who are
acting in a private capacity at the time of the challenged search or
seizure.  See State v. Andrews, 637 A.2d 787, 790 (Conn. App. Ct.
1994) (“[I]f an individual is acting in a private capacity at the time of a
search and seizure there is no governmental action.”); State v. Walker,
459 N.W.2d 527, 532 (Neb. 1990) (“[W]e hold that a search by an off-duty law
enforcement officer in his or her capacity as a private citizen, and not as a
law enforcement officer, does not violate the prohibition against unreasonable
searches and seizures.”).  Thus, whether there is governmental involvement
in a search and seizure is determined by the capacity in which the person
performing the search or seizure acts and not by the primary occupation of that
actor.  See United States v. Couch, 378 F. Supp. 2d 50, 55
(N.D.N.Y. 2005); In re Albert S., 664 A.2d 476, 484-85 (Md. 1995); State
v. Cole, 2008 WI App 178, ¶ 13, 315 Wis.2d, 84, 762 N.W.2d 711.
¶ 14.        
Any determination of whether an off-duty police officer is acting as a
private person when making a search or seizure must be based on all the
circumstances of the case.  In Walker, a case in which an off-duty
police lieutenant found signs of narcotics use while acting in his capacity as
a landlord, the Supreme Court of Nebraska stated that, “[w]hether a private
person’s search is actually a search by the State depends on whether the
private person must be regarded as having acted as an instrument or agent of
the State.”  459 N.W.2d at 531.  The court rejected the notion that
“solely because one is a police officer, the officer acts in that capacity at
all times,” and found that, although the lieutenant relied on his professional
training in recognizing the significance of drug paraphernalia at his rental
property, that factor was unimportant in determining whether he was acting in
his private or law enforcement capacity.  Id. at 532-33.  We find this
analysis helpful.  
¶ 15.        
In this case, the officer was acting initially as a concerned homeowner
and family member as he observed defendant’s vehicle enter his driveway late at
night.  While it might be difficult to determine the capacity of the
officer in some circumstances, see LaFave, supra, § 1.8(d), at 299,
there can be no substantial doubt that the officer here was acting to protect
his property and family, and the trial court so found.  Thus, we look to
whether the officer’s behavior thereafter was consistent with the private
motivation.  In this case, the officer spoke to defendant in a
conversational tone and did not command, threaten, or assert any force towards
defendant in any way.  He blocked defendant’s exit, if at all, to ask
questions to determine why defendant’s vehicle was in his driveway.
  As the trial court correctly noted, these actions are consistent
with the behavior of a concerned homeowner.  Defense counsel in fact
conceded this point during the suppression hearing, stating, “[w]ould I have
probably done the . . . same thing and said . . . ‘What’s
your . . . business in my place?’  Yes.”  Had the homeowner
been a private citizen, his conduct would have been unremarkable and, indeed,
even expected.  Therefore, we find that the officer’s conduct during this
initial encounter was entirely consistent with his private motivation.  In
fact, the officer’s occupation is likely to heighten his private motivation to
protect his family.  See Armstrong v. State, ___ So. 3d ___, 2010
WL 1342759, at *4 (Fla. Ct. App. 2010) (concluding that F.B.I. agent had
private purpose in opening package sent to him at his home, and his concern
about content of package was “heightened due to the fact that, as an F.B.I.
agent, he was a likely target for threats”).
¶ 16.        
We recognize that there is an issue as to whether the officer’s
questions turned into a law enforcement interrogation that went beyond the
private purpose of the initial encounter.[4] 
This is particularly true of the question asking how many drinks defendant had
consumed.  We note, however, that the trial court did not rely upon the
answer to this question in finding reasonable suspicion, and we likewise have
not relied upon that answer.  As we discuss in more detail below, by that
time the officer’s actions were irrelevant to the question before us because
the grounds for the further seizure had already emerged from the officer’s
interactions with defendant.  See Armstrong, 2010 WL 1342759, at *4
(actions taken after misdelivered package was opened were “irrelevant as to
whether [F.B.I. agent] was acting as a law enforcement officer at the time the
package was opened”); Cole, 2008 WI App 178, ¶ 20 (concluding that
actions of police officer after opening and reading letter misdelivered to her
home were irrelevant); see also Johnson v. State, 823 So. 2d 1, 43 (Ala.
2001) (“[W]hen an off-duty police officer . . . suspects criminal
activity, the officer’s status changes and, from that point on, he is
considered to be acting in his capacity as a police officer and not in his
capacity as a private citizen.”).  
¶ 17.        
This case is in many ways similar to three decisions from other courts
that have dealt with comparable circumstances.  In People v. Wachter,
130 Cal. Rptr. 279 (Cal. Ct. App. 1976), a sheriff, on his day off, accompanied
a neighbor on a social visit to the defendant’s property.  Finding no one
home, the neighbor decided to show the sheriff various interesting features of
the property, and the two stumbled upon a cultivated plot growing marijuana
plants.  Upon returning home, the sheriff reported his observations to the
narcotics investigator in his office, who obtained a search warrant and seized
the plants.  In response to a motion to suppress, the court concluded that
there was no unlawful search because the sheriff was acting as a private
citizen, as he was off-duty and not engaged in active police work at the time
of the discovery.  See id. at 286.
¶ 18.        
The other two cases involve defendants as unlucky as defendant in this
case.  In one, State v. Cole, 2008 WI App 178, the defendant sent
letters to family members instructing them to prevent the defendant’s wife from
testifying against him in a domestic violence prosecution, but one of the
letters was misaddressed and delivered to the home of a deputy sheriff who read
it and turned it over to the prosecution.  The court concluded that “[t]he
activity [the deputy] was engaged in when she opened [the defendant’s]
letter—opening mail that had been delivered to her home—was that of a private
citizen.”  Id. ¶ 19.
¶ 19.        
Similarly in Armstrong v. State, 2010 WL 1342759, the postal
service mistakenly delivered to the home of an F.B.I. agent a package
containing marijuana and addressed to the defendant.  Again, the law
enforcement officer opened the package and turned it over to the police. 
 Concluding that the agent acted “in his private capacity when he received
the package . . . [as it] was delivered by the postal service to his
home” and that this capacity did not change even though he had the package
x-rayed and opened at the F.B.I. office, the court concluded that there was no
violation of the Fourth Amendment.  Id. at *4.  For the same
reasons that the courts found no violation of the Fourth Amendment in Wachter,
Cole, and Armstrong, we find no violation here with respect to
the officer’s blocking of defendant’s exit and asking the initial questions.
¶ 20.        
We turn next to defendant’s contention that the officer did not have the
reasonable and articulable suspicion required under the Vermont Constitution to
order him to exit the vehicle.  Specifically, defendant argues that the
trial court erred in concluding that the officer developed a reasonable and
articulable suspicion of criminal wrongdoing based upon: (1) the odor of
alcohol emanating from defendant’s truck; (2) the officer’s observation that
defendant’s eyes were watery and bloodshot; and (3) the officer’s observation
that defendant’s speech was slurred.  We find no error in the trial
court’s conclusion.
¶ 21.        
The issue of whether the officer had a sufficiently reasonable and
articulable suspicion to require the operator to exit the vehicle and to
perform field sobriety exercises is controlled by our recent decisions in State
v. Mara, 2009 VT 96A, ___ Vt. ___, 987 A.2d 939, and State v. Santimore,
2009 VT 104, ¶ 8, ___ Vt. ___, 987 A.2d 332 (mem.).   In Mara,
we held that an officer was justified in ordering the defendant to exit the
vehicle after detecting the odor of alcohol and observing the defendant’s
bloodshot and watery eyes, and after the defendant admitted to drinking.  Mara,
2009 VT 96A, ¶ 12.  In Santimore, 2009 VT 104, ¶ 8, we
held that “[i]ndicia of intoxication, such as an officer’s detection of the
odor of alcohol emanating from a driver as well as observation of a driver’s watery
and bloodshot eyes, are sufficient to establish reasonable suspicion of
DUI.”  We conclude that under these precedents the strong smell of alcohol
and defendant’s slurred speech are sufficient indicia of driving under the
influence to allow the officer to go further and initiate field sobriety
exercises.
¶ 22.        
Defendant argues that the earlier cases should be distinguished because
the officer here testified that the odor of alcohol came from inside the
vehicle, rather than from defendant.  This is a meaningless
distinction.  Where the officer is communicating with defendant through an
open vehicle window and smelling alcohol from the same source, it is difficult
to see how the officer could distinguish the precise source of the alcohol smell. 
Indeed, the court found that defendant “smelled strongly of alcohol,” an
inference it was entitled to draw.  Further, we see no meaningful
difference between the bloodshot and watery eyes observed in Santimore
and the slurred speech observed in this case. 
¶ 23.        
Lastly, defendant contends that the trial court erred by making findings
that were not supported by the record and by ignoring certain facts in the
record.  We will affirm a trial court’s findings of fact unless they are
clearly erroneous.  Cassani v. Hale, 2010 VT 8, ¶ 25, ___ Vt.
___, 993 A.2d 422.   The trial court is afforded great discretion in
making factual findings because it is in the best position to assess the
credibility of witnesses and the weight to be given to evidence.  DeBartolo
v. Underwriters at Lloyd’s of London, 2007 VT 31, ¶ 23, 181 Vt. 609,
925 A.2d 1018.
¶ 24.        
Defendant first argues that the trial court erred in concluding that the
officer observed defendant’s watery and bloodshot eyes prior to ordering him to
exit the vehicle so that the officer could administer field sobriety
tests.  Defendant is correct; the officer’s supplemental affidavit
indicates that the officer observed the condition of defendant’s eyes only
after defendant had exited his vehicle.  Although the trial court erred in
concluding that defendant’s bloodshot and watery eyes in part justified the
exit order, we find this error harmless.  See V.R.C.P. 61 (defining
harmless error); V.R.Cr.P. 52 (same).  As noted above, the strong odor of
alcohol and defendant’s slurred speech were sufficient to justify the
order.  Thus, removing defendant’s watery and bloodshot eyes from
consideration does not alter the conclusion that the officer had reasonable
suspicion to go forward with the field sobriety tests.
¶ 25.        
Defendant additionally contends that the trial court ignored evidence
that demonstrates that the officer did not have the requisite level of
reasonable suspicion to justify his actions.  Specifically, defendant
points to the following record facts, which he claims were ignored by the
court: (1) defendant had no difficulty producing his license and registration
when asked; (2) the officer observed no erratic operation or traffic violations
by defendant; and (3) the officer observed defendant successfully negotiate a
turn in the driveway.[5] 
Contrary to defendant’s argument, the trial court expressly noted in the
“Facts” section of its decision that the officer did not observe any motor
vehicle violation or other erratic operation and that defendant  turned
around in the officer’s driveway.[6] 
The court also impliedly recognized that defendant successfully produced his
license and registration when asked.  The fact that the court did not
discuss these facts in its “Conclusions” section does not indicate that it
ignored them.  Rather, the court apparently gave greater weight to the
other record facts, and it is the province of the trial court to assess the
weight to be given to evidence.  Harman v. Rogers, 147 Vt. 11,
16-17, 510 A.2d 161, 165 (1986).  We accordingly find that the trial court
properly considered the relevant circumstances when it concluded that the
officer had reasonable suspicion to initiate the field sobriety tests.  We
thus uphold its denial of defendant’s motion.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] Defendant
alleges that he did not discover that the vehicle was a police cruiser until
after he completed a turnaround in the driveway.


[2]
Defendant describes the vehicles as being positioned with their “bumpers about even”
and that he “was at a slight angle” compared to the police cruiser.  


[3]
Although defendant cited Chapter I, Article 11 of the Vermont Constitution in
his memorandum to the trial court and in his brief to this Court, he argued
that it would produce a different result than the Fourth Amendment to the
United States Constitution only with respect to the officer’s order that
defendant exit his vehicle.  Thus, we do not consider Article 11 in
relation to the main question in this appeal—whether the initial seizure was
private and not prohibited by the Fourth Amendment.  See State v. Forty,
2009 VT 118, ¶ 23 n.2, ___ Vt. ___, 989 A.2d 509 (declining to consider
claim under Vermont Constitution when defendant failed to distinguish analysis
from that under United States Constitution).


[4] 
The trial court found that a seizure for constitutional purposes occurred when
the officer ordered defendant to exit his vehicle.  We agree that the “public”
seizure occurred after the officer first spoke with defendant and observed his
slurred speech and smelled the strong odor of alcohol.  We agree that it
occurred no later than the exit order.  For purposes of this decision, we
need not specify its exact time of occurrence.


[5]
 Defendant also alleges that the trial court failed to consider a station
house processing videotape revealing defendant’s allegedly lucid speech. 
The court expressly stated in a footnote, however, “[t]he videotape
notwithstanding, the Court cannot conclude that the officer’s opinion as to the
quality of defendant’s speech was incorrect.”  As already discussed, it is
within the province of the trial court to assess witness credibility, Dixon,
2008 VT 112, ¶ 34, and we therefore defer to the court’s conclusion
regarding the correctness of the officer’s assessment.


[6]
The trial court noted that defendant turned around in the driveway, but did not
describe it as successful.  The officer testified that defendant’s vehicle
went on to the officer’s lawn when defendant made the turn, but the court did
not address this evidence.  



