State v. Welch10/14/1994
st be more than an 'inchoate and unparticularized suspicion or "hunch."'" State v. Sutphin, 159 Vt. 9, 11, 614 A.2d 792, 793 (1992) (quoting Terry v. Ohio, 392 U.S. 1, 27, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)). As we stated in State v. Kettlewell, 149 Vt. 331, 335, 544 A.2d 591, 594 (1987), "The test is 'whether, based upon the whole picture, [the agents] . . . could reasonably surmise that the particular vehicle they stopped was engaged in criminal activity.'" (alterations in original) (quoting United States v. Cortez, 449 U.S. 411, 421-22, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981)).
Taking the testimony of the officer in the instant case as true, see State v. Weiss, 155 Vt. 558, 562, 587 A.2d 73, 75 (1990), there is no support for the court's Conclusion. The officer testified that he stopped defendant to inquire about what he was doing going in and out of driveways. The unidentified informant had told the officer that he thought that it was suspicious to see the truck's occupants out of the vehicle walking around and to see the vehicle in a different driveway when the informant turned around for a second look.
Though the court found that the area in which the truck was seen was an area that experiences burglaries, there was no evidence in the record to support this finding. Nor had there been any recent reports of criminal activity in the area. Moreover, nothing in the conduct of the driver as he was followed by the police suggested criminal activity. The informant's statement to the police was based on speculation, not accompanied by sufficient indication of criminal activity to justify stopping defendant. Cf. State v. Siergiey, 155 Vt. 78, 81, 582 A.2d 119, 121 (1990) (citizen report of erratic driving, plus officer's own observation of defendant driving extremely slowly, added up to reasonable articulable suspicion); State v. Schmitt, 150 Vt. 503, 507, 554 A.2d 666, 668-69 (1988) (after anonymous tip, police cruiser followed defendant's car and observed erratic and dangerous driving, justifying stop).
While information about criminal or suspicious activity from a citizen who is not a paid informant and is unconnected with the police may be presumed to be reliable, United States v. Sierra-Hernandez, 581 F.2d 760, 763 n.1 (9th Cir.), cert. denied, 439 U.S. 936 (1978), an investigatory stop may not be based solely on "'the unsupported "hunch" of an informant.'" Kettlewell, 149 Vt. at 337, 544 A.2d at 595 (quoting State v. McKenzie, 440 A.2d 1072, 1076 (Me. 1982)). The informant's Conclusion in this case that the events involving defendant were suspicious, uncorroborated by facts that would make it seem so to the objective observer, is insufficient. By the officer's account of what he learned from the informant, the activity reported was peaceful and open. There was no sign that any structure had been broken into and no details of what goods or objects were in the truck.
In sum, defendant's activities did not give rise to a reasonable, articulable suspicion of wrongdoing, and the court should have suppressed the evidence resulting from the stop.
Reversed and remanded.
MORSE, J., Dissenting. I would agree that mere presence on a rural Vermont road after midnight does not deserve even a brief stop by police. State v. Emilo, 144 Vt. 477, 481, 479 A.2d 169, 171 (1984). It is not unusual for a neighbor to go for a walk or a traveler to pass through. For any Vermont person living "in the sticks," however, those late hours have particular significance. When people are seen moving from driveway to driveway, suspicion is a typical and appropriate response.
Although the facts developed at the hearing were sparse, enough facts appear to
Page 1 2 3 4 Vermont DUI Attorneys
DUI Lawyers
|