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State v. Chapman4/12/2002
On Appeal from District Court of Vermont, Unit No. 2, Chittenden Circuit Michael S. Kupersmith, J.
Defendant was charged with driving while intoxicated and a civil suspension proceeding was held pursuant to 23 V.S.A. § 1205. He appeals the denial of his motion to suppress all statements and evidence in his civil suspension proceeding arguing that he was subjected to a de facto arrest without probable cause in violation of the United States and Vermont Constitutions. In the alternative, he argues that the stop and detention were done without reasonable and articulable suspicion of wrongdoing, also in violation of his constitutional rights. We agree and reverse.
The following facts are uncontested. On March 16, 2000, at approximately 9:10 p.m., Colchester Police Officer Roy received a dispatch that a vehicle was off the roadway near Route 7 and Poor Farm Road. The officer arrived at that location and observed an unoccupied Ford Explorer approximately four feet off the west side of Route 7. He also noticed a set of footprints in the snow leading from the car and heading north along the road for fifty to seventy-five yards. He then drove north to the Colchester variety store, where he asked the store owner if anyone had come to the store to report their vehicle off the road and was informed that there had been a person at the pay phone on the side of the building just prior to the officer's arrival. The officer found no one at the pay phone, but did see fresh footprints at the pay phone that were similar to those he saw leaving the Explorer. He followed the tracks to the rear of the store, then along the rear of the building and behind an adjacent storage building.
As the officer followed the tracks he came to a place where an off-set in the building created a darkened nook. He saw a person's head "lean forward and peek out" of the darkened area. At this time the officer unholstered his gun, ordered the person to "freeze," and told him to come out. He then ordered the person to put his hands where the officer could see them, and turn around. The defendant testified that at this time the officer ordered him to get down on his knees and then frisked him. The officer testified that he did not remember ordering the defendant to his knees and frisking him but agreed it was possible it had happened. The officer asked defendant if he had any weapons, and the defendant answered negatively. After holstering his gun, the officer conducted a field interview, asked the person who he was, what he was doing behind the building, and whether he was the proprietor of the Ford Explorer that was off the road on Route 7. The person identified himself as defendant, David Chapman, and stated that he had gone behind the building to urinate and that the Explorer was his vehicle. At this time the officer noticed an odor of intoxicants coming from defendant. The officer then asked defendant to go back to the police cruiser with him. There, the officer conducted field dexterity tests and ultimately processed defendant for DUI.
We review motions to suppress de novo. State v. Graves, 170 Vt. 646, 646, 757 A.2d 462, 463 (2000) (mem.). Defendant argues that he was subjected to a de facto arrest requiring probable cause when the officer, with no evidence that defendant had committed a crime, drew his gun, ordered defendant to freeze, keep his hands up, kneel down on the ground, and then frisked him for weapons. Defendant further contends that because the officer did not have probable cause to effect this de facto arrest, all evidence flowing from the improper arrest should be suppressed. The trial court did not address defendant's claim that he had been subjected to a de facto arrest. Rather, it held th
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