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State v. Chapman4/12/2002
the officer responded that he was acting according to his training, and indicated that it was "for my safety and his." Although the officer did not testify that he also suspected a burglary, this is not controlling. The question is whether the circumstances objectively suggested a reasonable suspicion of wrongdoing. See United States v. Sokolow, 490 U.S. 1, 7 (1989); State v. Boyea, 171 Vt.401, 415, 765 A.2d 862, 872 (2000). Viewed from the perspective of a reasonable officer on the scene, I believe they clearly did.
The same standard of reasonableness for determining the justification of the detention applies to the officer's show of force. As the court in United States v. Alexander, 907 F.2d 269 (2d Cir. 1990), observed: "There are no hard and fast rules for evaluating the conduct of law enforcement agents conducting investigative stops. . . . A law enforcement agent, faced with the possibility of danger, has a right to take reasonable steps to protect himself . . . . 'The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' " Id. at 272 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). When the officer here observed an unidentified individual in the shadows behind a closed shop lean forward and peek out, it was not unreasonable to unholster his revolver, command the individual to come out with his hands showing, and conduct a quick pat-down search. There was simply no way for the officer to know - in that instant -whether the person was hiding from the officer or lying-in-wait; whether he was alone or had a compatriot; whether he was armed, intoxicated, or otherwise unstable. The uncertainty and potential danger was compounded, moreover, by the fact that it was late at night, dark, and the officer was alone and isolated.
In these circumstances, it appears to me self-evident that the officer exercised precisely that amount of force reasonably necessary to ensure his safety by swiftly exerting control over defendant and ascertaining his intentions. Although he unholstered his weapon, there was no evidence that the officer held defendant at gunpoint, or restricted his physical movement with handcuffs or any other physical force for any length of time. On the contrary, the officer testified without contradiction that his weapon was holstered almost immediately, and that he proceeded to conduct a quick pat down search of defendant and to question him about his reasons for being there. "Without exceeding Terry guidelines, the police may do what is necessary to command the suspect's attention and bring him to a stop, . . . and to protect themselves and the public from unnecessary exposure to risk of injury." Commonwealth v. Fitzgibbons, 502 N.E.2d 142, 145-46 (Mass. App. Ct. 1986). That describes precisely the nature of the officer's actions here. Accordingly, I find no basis in the record to support a conclusion that the officer utilized such excessive force that it transformed the nature of the seizure from an investigatory stop into an arrest requiring probable cause.
I would affirm the well-reasoned judgment of the trial court denying defendant's motion to suppress. I am authorized to state that Chief Justice Amestoy joins in this dissent.
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