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@vermont.gov or by mail at: Vermont Supreme Court,
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be made before this opinion goes to press.


                                        2016 VT 105

                                        No. 2015-420

State of Vermont                                             Supreme Court

                                                             On Appeal from
   v.                                                        Superior Court, Chittenden Unit,
                                                             Criminal Division

Lenore Hayes                                                 April Term, 2016


Michael S. Kupersmith and James R. Crucitti, JJ. (motions to suppress and dismiss);
A. Gregory Rainville, J. (final judgment)

Franklin L. Paulino, Chittenden County Deputy State’s Attorney, Burlington, for
 Plaintiff-Appellee.

Jessica Burke of Burke Law, P.C., Burlington, for Defendant-Appellant.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   SKOGLUND, J. Following her conditional plea of guilty to a charge of driving

while intoxicated (DWI), second offense, defendant appeals the superior court’s denial of her

motions to suppress evidence from the vehicle stop and dismiss the case. She argues that there

was no reasonable basis for the stop and that, in any event, all evidence should have been

suppressed due to the arresting officer’s failure to produce a complete video recording of the

stop. We affirm.

        ¶ 2.   Shortly before midnight on January 17, 2015, a Town of Richmond police officer

stopped defendant’s vehicle. The officer eventually had defendant exit the vehicle to perform

field sobriety tests and provide a preliminary breath test sample, which revealed a blood-alcohol
concentration (BAC) of 0.135%. The officer then arrested defendant and transported her to the

Richmond police station, where she was processed for DWI. After consulting with an attorney,

defendant agreed to provide a breath sample, which the Datamaster infrared device analyzed as

containing a BAC of 0.127%. Defendant exercised her right to a second test, which revealed a

BAC of 0.133%. Defendant also obtained a test kit for an independent blood test.

       ¶ 3.    Defendant was charged with DWI, second offense. She filed a motion to suppress

and dismiss, arguing that the stop of her vehicle was unconstitutional because the arresting

officer lacked any reasonable suspicion of her having committed a crime or violated any traffic

law. Later, she filed a second motion to suppress and dismiss, this time arguing that the State

failed to provide her with an uncorrupted video recording of the stop. See 23 V.S.A. § 1203(k)

(“A copy of a videotape made of the alleged offense shall be provided to the defendant within

ten days after defendant requests the copy and pays a $45.00 fee for its reproduction.”); see also

V.R.C.P. 80.5(e) (“A copy of a videotape made of the alleged offense and subsequent processing

shall be available for purchase by the defendant directly from the law enforcement agency

responsible for initiating the action . . . .”); V.R.Cr.P. 16(e) (same). At an April 8, 2015 hearing

on the latter motion, the Chittenden Unit of the Superior Court’s Criminal Division dismissed the

civil suspension of defendant’s driver’s license based on a standing order in that court with

respect to the government’s failure to produce a requested copy of a video recording. The court

ruled, however, that whether the criminal case should be dismissed warranted further review

under the factors set forth in State v. Bailey, 144 Vt. 86, 94-95, 475 A.2d 1045, 1050 (1984), for

cases involving lost or undisclosed evidence.

       ¶ 4.     At a later status conference it was revealed that only approximately seven

minutes of the recording of the stop could be viewed because the arresting officer had not flipped

a toggle switch that would have continued the recording after his cruiser’s blue lights were

turned off.

                                                 2
        ¶ 5.   A hearing in the criminal matter was held on June 25, 2015. Following the

hearing, defendant renewed her motion to dismiss, arguing that if the court concluded that the

arresting officer was negligent in not preserving a recording of the stop, it must undertake a

Bailey analysis. See State v. Porter, 2014 VT 89, ¶ 29, 197 Vt. 330, 103 A.3d 916 (stating that

although “police do not have a duty to collect all evidence that could potentially favor the

defense,” there could be situations where negligent conduct by police was sufficiently prejudicial

to defendant to warrant sanctions, in which case, “the Bailey test is an adequately flexible

method to determine the appropriate sanction”).

        ¶ 6.   On July 28, 2015, the superior court denied defendant’s renewed motion to

dismiss, ruling that while the arresting officer was negligent in not preserving a complete video

recording of the stop, the Bailey factors did not favor defendant because the recording would

most likely not have revealed exculpatory evidence. See Bailey, 144 Vt. at 94-95, 475 A.2d at

1050 (stating that if defendant shows reasonable possibility that missing evidence would have

been favorable to defendant, court must balance (1) degree of negligence or bad faith by

government, (2) importance of lost evidence, and (3) other evidence of guilt adduced at trial).

Moreover, the court noted that although defendant provided a breath sample within two hours of

operation that revealed a BAC well in excess of the legal limit, because she later obtained a test

kit for an independent blood test she would have an opportunity at trial to challenge the breath

test result.

        ¶ 7.   On September 21, 2015, the superior court held a hearing to consider both

defendant’s original motion to suppress and dismiss, in which she argued that there was no

reasonable basis for the stop of her vehicle, as well as her motion to reconsider the court’s July

28 decision. Once again, the arresting officer was the sole witness at the hearing. Two days

after the hearing, the superior court issued a ruling denying defendant’s motions. The court ruled

that none of the “three missteps” by defendant while operating her vehicle individually

                                                  3
constituted a traffic violation, but that the combination of those actions indicated defendant was

not driving attentively and thus justified the officer stopping her vehicle based on a reasonable

suspicion that she might be intoxicated.        Further, the court denied defendant’s motion to

reconsider its July 28 order in light of its conclusion that the stop had in fact been lawful.

       ¶ 8.    On appeal, defendant argues that, pursuant to the criteria set forth in Bailey,

evidence from the stop should be suppressed and the case dismissed. She also argues that there

was no reasonable basis for the stop. In reviewing a denial of a motion to suppress, we will

uphold the trial court’s findings as long as they are supported by evidence, but we review de

novo whether the facts meet the proper standard to justify a stop. State v. Rutter, 2011 VT 13,

¶ 6, 189 Vt. 574, 15 A.3d 132 (mem.).

       ¶ 9.    “A legal investigatory stop is justified if a police officer has a reasonable and

articulable suspicion of criminal activity.” State v. Pratt, 2007 VT 68, ¶ 5, 182 Vt. 165, 932

A.2d 1039 (citation omitted). Reasonable and articulable suspicion requires “more than an

unparticularized suspicion or hunch of criminal activity, but . . . considerably less than proof of

wrongdoing by a preponderance of the evidence.”             Id. (quotation omitted).     “Reasonable

suspicion is assessed by examining the totality of the circumstances” while “balancing the

public’s interest in safety against the relatively minimal intrusion posed by a brief investigatory

detention.” Id. (quotation omitted). We have held that “[r]easonable and articulable suspicions

of motor-vehicle violations are sufficient to justify stops.” State v. Harris, 2009 VT 73, ¶ 3, 186

Vt. 225, 980 A.2d 785. “As such, we have upheld investigatory stops for suspicion of DUI based

on erratic driving.” Pratt, 2007 VT 68, ¶ 5. The relevant question is not whether a motor vehicle

violation actually occurred, but rather only “whether the officer had a reasonable basis to suspect

that a motor vehicle violation was taking place.” Rutter, 2011 VT 13, ¶ 10.

       ¶ 10.   Defendant asserts that the stop here could not have been supported by reasonable

suspicion because the superior court found no traffic violations and the arresting officer did not

                                                  4
allege in his affidavit that he stopped her vehicle based on his suspicion of a possible DWI. As

noted above, however, the question is not whether there was actually a traffic violation but rather

whether the arresting officer had an objectively reasonable belief that there was a traffic

violation. Moreover, we have reiterated “that an officer’s subjective intent for stopping a

defendant’s car is not relevant as long as there is an objectively reasonable basis for the stop.”

Id. ¶ 16 (concluding “that the protections of Article 11 do not extend to prohibiting law

enforcement officers from stopping motor vehicles where there is an objectively reasonable

suspicion that a motor vehicle violation has occurred, even if in a particular situation these

infractions may appear ‘trivial’ or the officer’s motivation is suspect”); see also State v. Lussier,

171 Vt. 19, 23-24, 757 A.2d 1017, 1020 (2000) (“In determining the legality of a stop, courts do

not attempt to divine the arresting officer’s actual subjective motivation for making the stop;

rather, they consider from an objective standpoint whether, given all of the circumstances, the

officer had a reasonable and articulable suspicion of wrongdoing.”).

       ¶ 11.   In this case, the arresting officer testified that he observed defendant nearly hit

another car while exiting a store parking lot when she failed to yield the right of way to the other

car pulling into the parking lot. He stated that the operator’s lack of attention or due regard

aroused his suspicion as to her condition, so he followed the vehicle after it left the parking lot.

He testified further that, in following the vehicle, he observed that at one point during a left-hand

turn the vehicle crossed over the fog line and kicked up dirt along the shoulder of the road, and at

another point during a right hand turn the headlights were turned off for a couple of seconds.

       ¶ 12.   Taken together, defendant’s actions were sufficient to create a reasonable and

articulable suspicion that defendant may have been driving impaired. Cf. State v. Bruno, 157 Vt.

6, 11, 595 A.2d 272, 275 (1991) (concluding that arresting officer’s observations of defendant

swerving and drifting in his lane before briefly parking and then operating his vehicle without

headlights were sufficient to raise officer’s reasonable and articulable suspicion that defendant

                                                 5
was driving impaired).     In a relatively short period of time, the officer observed multiple

indications of defendant’s lack of attention while operating her vehicle. Thus, the officer had

more than an unparticularized suspicion or hunch of impaired driving. Regardless of whether

any one of defendant’s “missteps” actually amounted to a motor vehicle violation, the officer

could have reasonably believed that there was a traffic violation or that defendant was driving

impaired. See 23 V.S.A. § 1243(b) (providing that vehicles operating on state highways between

thirty minutes after sunset and thirty minutes before sunrise must display lights).

       ¶ 13.   Defendant argues, however, that the stop should be suppressed and the case

dismissed under a Bailey analysis. According to defendant, the stop should be suppressed

because of the arresting officer’s “active failure to preserve evidence that likely would have been

favorable to her.” In support of her claim that a complete video recording may have produced

exculpatory evidence, defendant contends that the arresting officer claimed in his affidavit that

defendant’s speech was “confused” but then conceded in his testimony at the September 21

hearing that the word “excited” would be more appropriate—which defendant contends is not a

cue for intoxication. Examining the three Bailey factors, defendant further asserts that: (1) as the

trial court found, the arresting officer was grossly negligent because on prior occasions unrelated

to this case he had failed to flip the toggle switch; (2) a complete video recording was important

because she produced evidence demonstrating that the officer’s prior recollections were not

accurate; and (3) the only other evidence of guilt was the officer’s other questionable

observations and the evidentiary test administrations.

       ¶ 14.   We discern no basis to overturn the superior court’s denial of defendant’s motion

to dismiss due to the limited video recording. As an initial matter, it is questionable whether

Bailey is even applicable under the circumstances of this case, as Justice Dooley explains in his

concurrence. In any event, in State v. Dimick, 173 Vt. 547, 548-49, 790 A.2d 435, 436-37

(2001) (mem.), we reversed the trial court’s exclusion of all evidence derived from a stop where

                                                 6
the court accepted the defendant’s claim that the police had a legal duty to create a video

recording of all roadside stops and ensuing field sobriety tests. We concluded that neither the

statute requiring police to provide defendants with a copy of a video recording made of the

alleged offense, see 23 V.S.A. § 1203(k), nor any police rules or regulations compelled the

police to record stops. Dimick, 173 Vt. at 549-50, 790 A.2d at 437. We stated that “[b]ecause

the Legislature has chosen not to require officers to tape all major roadside stops, this Court will

not create such a requirement by ‘judicial fiat.’ ” Id. at 550, 790 A.2d at 438. The same

situation exists in this case. The Legislature has not enacted such a requirement, and the

arresting officer testified that no such policy exists within his department.

       ¶ 15.   Defendant’s reliance on Porter does not help her. In that case, the defendant, who

was convicted of attempted kidnapping, argued that the State’s failure to collect or preserve four

specific items of potentially exculpatory evidence should have resulted in dismissal of the

charges pursuant to Bailey. We rejected the defendant’s argument “that the failure to collect

evidence in the first place is equivalent to destroying, losing, or failing to preserve exculpatory”

because “[t]he police do not have a duty to collect all evidence that could potentially favor the

defense.” Porter, 2014 VT 89, ¶ 29. We stated, however, that “the Bailey test is an adequately

flexible method to determine the appropriate sanction” in situations where the “negligent conduct

of police is sufficiently prejudicial to the defense to warrant sanctions.” Id. Thus, even though

police do not have a duty to collect all potentially exculpatory evidence, the Bailey factors apply

in situations where the State’s failure to procure potentially exculpatory evidence results in

prejudice—for example, failing to procure a bloody knife lying next to a body in a murder case,

see State v. Wheelock, 158 Vt. 302, 312, 609 A.2d 972, 978 (1992).

       ¶ 16.   Because we have explicitly held that, absent a requirement in a statute or written

police policy, there is no legal duty to record roadside stops, here the officer’s failure to record



                                                  7
the stop was not negligent, despite the superior court’s finding to the contrary. See Dimick, 173

Vt. at 549-50, 790 A.2d at 437.

       ¶ 17.   In any event, this is not a case where failure to preserve/produce evidence would

warrant sanctions. Defendant cannot show prejudice here. First, the alleged negligence was

failing to flip the toggle switch, but that did not occur until after the stop and the cruiser’s blue

lights were turned off. Thus, the alleged negligence had no impact on the lack of a preserved

recording of all of the incidents that led to the stop. Second, in his affidavit and at the June 25

hearing, the arresting officer testified that when he approached defendant’s car after the stop he

smelled a very slight odor of intoxicants and observed that defendant’s eyes were slightly

bloodshot. A video recording would not have picked up these observations. Third, the officer

further testified that defendant admitted to recently consuming alcohol, that she willingly agreed

to perform field dexterity tests, and that the officer observed multiple cues of intoxication based

on her performance of those tests. While a video recording could conceivably have undercut the

officer’s observations of impairment cues with respect to balance on two of the three tests, there

were impairment cues on one of the tests related to eye movement that the recording would not

have picked up. Fourth, defendant agreed to submit to a preliminary breath test, which indicated

a BAC well over the legal limit, as did the two evidentiary tests taken at the police station.

       ¶ 18.   Nor could defendant demonstrate a reasonable possibility that a video recording

would have produced evidence in her favor. See Commonwealth v. Olszewski, 625 N.E.2d 529,

535 (Mass. 1993) (emphasizing that “reasonable possibility” must be “based on concrete

evidence and not on mere speculation[,] that the [government’s] actions deprived [the defendant]

of evidence that would have been favorable to his case”). The record does not support the

principal basis for defendant’s argument—that a complete video recording of the roadside stop

would have produced evidence contradicting the arresting officer’s account of what happened.

She argues that the officer stated in his affidavit that her speech was “confused”—a cue for

                                                  8
impairment—but that he conceded at the September 21 hearing that he should have described her

speech as “excited” rather than “confused.”         Her point is that since we know the officer

inaccurately described a cue for impairment in this instance, there is a reasonable possibility that

he also inaccurately described other alleged impairment cues, including those associated with the

field dexterity tests. The problem with this argument is that in his affidavit the officer did not

describe defendant’s speech as confused; rather, he stated that defendant “appeared confused,

unable to locate the registration.” Thus, at the hearing when the officer described her speech as

“excited” rather than “confused,” he was not contradicting the statement in his affidavit. In

short, even if we were to assume negligent conduct on the part of the officer based on some

unexplained duty, defendant cannot demonstrate sufficient prejudice to warrant sanctions per

Porter.

          Affirmed.

                                                 FOR THE COURT:



                                                 Associate Justice


          ¶ 19.   DOOLEY, J., concurring.        I agree that this case should be affirmed on the

ground that under State v. Dimick, there is no obligation to tape major roadside stops; thus, I

agree fully with the majority decision. 173 Vt. 547, 550, 790 A.2d 435, 438 (2001) (mem.). I

write separately to express my belief that the test introduced in State v. Bailey is generally

inapplicable in cases where the lost, destroyed, or undisclosed evidence does not involve the

ultimate question of guilt or innocence, but instead, bears on the constitutionality of how that

evidence was acquired. 144 Vt. 86, 94-95, 475 A.2d 1045, 1050 (1984). This is an additional

reason why we should affirm in this case.

          ¶ 20.   There are three factors suggesting Bailey is limited in its application. First, the

third element of the Bailey test is the weight of “other evidence of guilt adduced at trial,” id. at
                                                 9
95, 475 A.2d at 1050, and this element makes sense only if the unpreserved evidence relates only

to guilt or innocence. See State v. Porter, 2014 VT 89, ¶ 30, 197 Vt. 330, 103 A.3d 916 (noting

that “the Bailey test depends on the evidence of guilt produced at trial”). Second, in the federal

case underlying Bailey, the Court of Appeals for the District of Columbia recognized that the

Supreme Court of the United States “ha[d] not yet attempted to define” the standard of

constitutional coverage of favorable evidence with precision, but nonetheless noted it was the

law of the circuit that due process “applies to all evidence which might have led the jury to

entertain a reasonable doubt about [the] defendants’ guilt,” and conducted its analysis

accordingly.   United States v. Bryant, 439 F.2d 642, 648 (D.C. Cir. 1971) (citation and

alterations omitted); see also State v. Gentes, 2013 VT 14, ¶ 5, 193 Vt. 669, 70 A.3d 967 (mem.)

(observing that lost-or-destroyed-evidence framework explicated in Bailey was “based on the

analysis set forth in the leading federal case” of Bryant).

       ¶ 21.   Third, a review of our case law reveals Bailey has exclusively been utilized in

instances where undisclosed evidence directly bore on the ultimate question of guilt or

innocence. See, e.g., Porter, 2014 VT 89, ¶¶ 27, 30 (concluding trial court “appropriately

applied the Bailey test” in case where potentially exculpatory evidence was blood from victim’s

face, victim’s fingernail clippings, clothes and scrapings, and hair found in her clothing, which

went to identity of attacker); State v. Gibney, 2003 VT 26, ¶ 42, 175 Vt. 180, 825 A.2d 32

(affirming trial court’s “pragmatic balancing of the Bailey factors” finding there was no violation

of Article 10 in police officers’ destruction of their investigatory notes); State v. Devine, 168 Vt.

566, 568, 719 A.2d 861, 864 (1998) (mem.) (finding State’s destruction of vehicle did not

preclude defendant charged with negligent operation of vehicle from contesting State’s estimate

of his speed at impact); State v. Delisle, 162 Vt. 293, 311-12, 648 A.2d 632, 643-44 (1994)

(concluding balancing test favored State in case involving loss of victim’s hyoid bone, which

defendant wanted to use to show victim was not strangled as state claimed, and tarp on which

                                                 10
body was found, which defendant wanted to use to show witness who testified defendant had

similar tarp had incorrectly described it, as defendant had other means of making his defense).

        ¶ 22.   In cases such as this, where the missing evidence bears on a collateral or pretrial

issue, I would advocate for a return to the federal standard expressed in Arizona v. Youngblood,

488 U.S. 51 (1988). In Youngblood, the Supreme Court established two standards: one for a

failure to preserve “material exculpatory evidence,” where, as per Brady v. Maryland, 373 U.S.

83 (1963), the good or bad faith of the State is irrelevant, and one for “potentially useful

evidence,” wherein a denial of due process is only found if a criminal defendant can show “bad

faith on the part of the police.” Youngblood, 488 U.S. at 57, 58. Bailey preceded Youngblood

by four years; accordingly, we concluded it represented the controlling federal standard in State

v. Seifert, 151 Vt. 66, 70, 557 A.2d 494, 497 (1989). However, in Delisle, we noted that:

                We believe, however, that Youngblood is both too broad and too
                narrow. It is too broad because it would require the imposition of
                sanctions even though a defendant has demonstrated no prejudice
                from the lost evidence. It is too narrow because it limits due
                process violations to only those cases in which a defendant can
                demonstrate bad faith, even though the negligent loss of evidence
                may critically prejudice a defendant. Because the Bailey test
                balances the culpability of the government’s actions and the
                prejudice to a defendant, we adopt it as the state constitutional
                standard.

162 Vt. at 310, 648 A.2d at 643.

        ¶ 23.   Although I remain in accord with the reasoning of Delisle, and believe Bailey is

the preferable standard for state constitutional claims, I maintain the narrowness of its scope

limits its application to those cases where the missing evidence pertains directly to a criminal

defendant’s guilt or innocence, such that its absence makes the presentation of a defense more

difficult.   To that end, I believe that in its extension beyond exculpatory evidence, to all

“potentially useful evidence,” Youngblood can fill the gap. 488 U.S. at 58.

        ¶ 24.   Youngblood has been used in this manner in other jurisdictions. For example, in

State v. Geeslin, the Ohio Supreme Court considered a case where a trooper accidentally
                                          11
recorded over patrol car footage of a defendant’s stop, such that the “only relevant events

remaining on the videotape relating to [the defendant’s] arrest are those that occurred after [the

defendant] was stopped.” 2007-Ohio-5239, 878 N.E.2d 1, at ¶ 4. The court recognized that the

missing evidence “would not have been used for the purpose of establishing [the defendant’s]

guilt or innocence,” but instead, would serve to “challenge or corroborate the justification for the

stop.” Id. ¶ 12. Because the missing footage was relevant “only with regard to the validity of the

stop that led to [the defendant’s] arrest,” the court concluded it was not materially exculpatory

evidence under Brady, but instead, fell into the category of potentially useful evidence. Id. ¶ 13.

Accordingly, the Ohio high court applied the second Youngblood test to determine whether the

trooper acted in bad faith in recording over the footage. Id. ¶ 14; see also United States v.

Houston, 548 F.3d 1151, 1155 (8th Cir. 2008) (applying Youngblood test where officers failed to

preserve video evidence of traffic stop); Ellis v. State, 77 So. 3d 1119, 1124 (Miss. Ct. App.

2011) (applying bad faith test to erasure of memory card of defendant’s traffic stop);

Higginbotham v. State, 416 S.W.3d 921, 926 n.1 (Tex. App. 2013) (observing if defendant could

argue State failed to preserve in-car camera recording showing what transpired at arrest in bad

faith, he could prevail on claim under Youngblood).

       ¶ 25.   I agree that defendants like the one in the instant case should not be without

recourse when seeking to challenge undisclosed, unpreserved, or even “non-created” evidence

that bears on suppression of evidence because of the possibility of a constitutional violation. On

the other hand, a rule created to implement fully the State’s duty to prove guilt beyond a

reasonable doubt and fairly disclose exculpatory evidence does not neatly apply in connection

with factfinding where the defendant has the burden of proof and guilt is not being determined.

Indeed, the real issue is the scope of the exclusionary rule.

       ¶ 26.   I recognize that Vermont has diverged from the federal courts in its development

of a broad exclusionary rule. In State v. Oakes, we noted that the United States Supreme Court

                                                 12
treats the federal exclusionary rule as “a judicially created remedy rather than a constitutional

right,” and as such, focuses on weighing the costs and benefits associated with applying the rule

in particular circumstances.    157 Vt. 171, 174, 598 A.2d 119, 122 (1991).            Instead, we

recognized that our state exclusionary rule “effectuates Article 11 rights” and that reliance on an

empirical assessment would “disserve those rights.” Id. at 175, 598 A.2d at 121; see also State v.

Badger, 141 Vt. 430, 453, 450 A.2d 336, 349 (1982) (concluding introduction of ill-gotten

evidence at trial “eviscerates our most sacred rights, impinges on individual privacy, perverts our

judicial process, distorts any notion of fairness, and encourages official misconduct”).

       ¶ 27.   However, application of the exclusionary rule as the appropriate remedy requires

“demonstrating a connection between the constitutional violation and the physical evidence

seized.” State v. Delaoz, 2010 VT 65, ¶ 15, 189 Vt. 385, 22 A.3d 388, superseded by statute on

other grounds (noting also that exclusionary rule applies only where challenged evidence

“discovered through exploitation of an illegality” and that defendant must show causal

relationship between unlawful conduct and discovery of evidence). Accordingly, for a claim

based only on a police officer’s negligence, with no proof there was actually a constitutional

violation, I see no reason to expand the exclusionary rule here. See also State v. Lussier, 171 Vt.

19, 30, 757 A.2d 1017, 1025 (2000) (emphasizing focus of analysis of scope of exclusionary rule

“should be on the individual constitutional rights at stake”). I believe Youngblood affords

defendant sufficient recourse in the situation present here.

       ¶ 28.   Under the Youngblood standard, defendant in this case must prove that the officer

acted in bad faith in failing to turn on the video system. There is no evidence of bad faith and

defendant has not claimed it. For that reason, and the reasoning of the majority, I would affirm.



                                                Associate Justice



                                                 13
       ¶ 29.   ROBINSON, J., concurring. The majority acknowledges our holding in State

v. Porter that even in the absence of a duty to collect evidence, the negligent conduct of police

may be sufficiently prejudicial to the defense to warrant sanctions, 2014 VT 89, ¶ 29, 197 Vt.

330, 103 A.3d 916, but then without analysis or explanation either implicitly overrules that

holding or carves out an exception for videotape evidence—in an era when the significance of

such evidence is growing. This case does not require us to address this question, and, although I

concur in the mandate, I cannot join the majority’s reasoning.

       ¶ 30.   This Court has long recognized that even though police do not have a duty to

collect particular evidence (as opposed to preserving evidence already collected), “ ‘there could

arise situations in which negligent conduct of the police is sufficiently prejudicial to the defense

to warrant’ sanctions.” Id. ¶ 29 (alteration omitted) (quoting State v. Wheelock, 158 Vt. 302,

312, 609 A.2d 972, 978 (1992)). Whether the conduct of police is “negligent” is presumably

assessed with reference to the norms of reasonable police investigation, since we have repeatedly

recognized that there is no general statutory or constitutional duty to collect particular evidence

at a crime scene. See id. (“The police do not have a duty to collect all evidence that could

potentially favor the defense.”) (citing State v. Ware, 882 P.2d 679, 683 (Utah Ct. App. 1994)

(stating rule that prosecution “generally has no duty to collect particular evidence at the crime

scene”)).

       ¶ 31.   In Porter we concluded that the Bailey test—developed to address claims of lost,

destroyed, or unpreserved exculpatory evidence—was “an adequately flexible method to

determine the appropriate sanction” in the class of cases in which the failure to collect evidence

in the first place was sufficiently negligent to warrant consideration of sanctions. Id.

       ¶ 32.   In this case, the majority acknowledges Porter, but then holds that because we

have held that there is no legal duty to record roadside stops, here the officer’s failure to record

the stop was not negligent, despite the superior court’s finding to the contrary. Ante, ¶ 16. The

                                                 14
Court’s reasoning that because there is no statutory or constitutional duty to record roadside

stops, the failure to do so here could not be deemed negligent and the Bailey analysis is

inapplicable is squarely at odds with our reasoning in Porter that even though police have no

duty to collect evidence, the failure to do so in a particular case may be so negligent and

prejudicial as to warrant consideration of sanctions.        It isn’t clear whether the majority is

implicitly overruling Porter, limiting its reach to the extraordinary circumstance of failure to

procure a bloody knife lying next to the body in a murder case, or merely carving out an

exception to the Porter analysis for a specific kind of evidence—namely, videotaped evidence of

roadside stops. The majority does not offer a rationale for any of these approaches.

       ¶ 33.    I am not warring with our holding in State v. Dimick, 173 Vt. 547, 790 A.2d 435

(2001) (mem.). In that case, we rejected the argument that the Vermont State Police Rules &

Regulations, Operational Policies & Procedures created a statutory duty to videotape all roadside

stops and DUI sobriety tests. Id. at 549-50, 790 A.2d at 437-38. We noted that the rules merely

required officers to tape “whenever possible.” Id. at 550, 790 A.2d at 437. I am merely arguing

that in this day and age, when dashcam and bodycam videos are becoming such a standard part

of policing in many departments,* we should not, without far more consideration and analysis,

carve this one category of evidence out from the general rule articulated in Porter, which

recognizes that in some cases a failure to collect evidence (that officers have no statutory or

constitutional duty to collect) may be so negligent with reference to reasonable policing norms

and so prejudicial as to warrant further consideration by the Court. Without more information

than we have here, I cannot agree that turning off a dashcam or bodycam at a critical moment

can never constitute as serious a departure from accepted police practices, and one that is just as

prejudicial to a defendant, as failing to collect a critical piece of tangible evidence.

       *
          On a national basis, in 2013, 68% of local police departments used in-car cameras, up
from 61% in 2007, and 32% used body-worn cameras. B. Reaves, U.S. Dep’t of Justice, Local
Police Departments, 2013: Equipment and Technology 3 (2015), http://bjs.gov/content/pub/pdf/
lpd13et.pfd [https://perma.cc/Q8HS-GBAS].
                                              15
       ¶ 34.   We don’t have to take such an extreme step to resolve this case.               After

concluding, based on the testimony concerning this particular case, that the officer’s failure

amounted to gross negligence, the trial court applied the Bailey test and concluded that “it would

be inequitable to suppress evidence or to dismiss the State’s case,” but that a corrective

instruction to the jury at trial would be appropriate. As the analysis in the last two paragraphs of

the majority’s opinion reflects, the trial court’s conclusion was well supported. The majority

could have declined to reach the question of whether dashcam video evidence of a roadside stop

is subject to a blanket exemption from the scrutiny called for in State v. Porter on the basis that

even if the trial court properly applied the Bailey test, its conclusion that Bailey does not afford

defendant the relief she seeks is affirmable. That would have left to another day, and perhaps a

case in which we are presented with a record that more thoroughly elucidates the role of dashcam

videos in contemporary policing in Vermont, the question of whether an across-the-board

exception for videotape evidence is appropriate.

       ¶ 35.   For the above reasons, I concur in the majority’s affirmance of defendant’s

conviction, but do not join the reasoning in ¶¶ 13-16 of the majority opinion.



                                               Associate Justice




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