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State v. Pratt (2005-312 & 2006-069)
2007 VT 68
[Filed 20-Jul-2007]
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, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2007 VT 68
Nos. 2005-312 & 2006-069
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Washington Circuit
Timothy Pratt December Term, 2006
Geoffrey W. Crawford, J. (05-312)
Stephen B. Martin, J. (06-069)
Paul Finnerty, Washington County Deputy State's Attorney, Barre, for
Plaintiff-Appellee.
Stephen J. Craddock, Berlin, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
1. DOOLEY, J. Defendant appeals the civil suspension of his
driver's license, arguing that the district court erred by denying his
motion to suppress because there was no lawful basis for the stop leading
to his arrest. We affirm.
2. Early in the morning of April 21, 2005, a state trooper on
patrol approached defendant's vehicle from behind on Interstate 89 in
Waterbury, Vermont. After noticing defendant drift back and forth within
his lane, the trooper activated his in-car video camera and followed the
vehicle for several miles. During this period, defendant's vehicle
continued to drift within its lane. The trooper eventually stopped
defendant and approached the vehicle. Noticing a faint smell of alcohol,
the trooper questioned defendant and asked him to perform field sobriety
tests. Defendant's performance indicated he might be under the influence
of alcohol. When defendant refused to take a preliminary breath test, the
trooper arrested him on suspicion of driving under the influence (DUI). He
was charged with DUI, and his license was suspended after a Datamaster
result showed a blood-alcohol concentration of .102.
3. In both his criminal case and his civil suspension case,
defendant filed a motion to suppress all evidence obtained as a result of
the stop. Defendant argued that the officer did not have reasonable
suspicion necessary to stop his vehicle. The trial court held a hearing on
the motion to suppress. At the hearing, the state trooper testified that
he observed defendant's car move from the center line to the fog line two
times before he activated his in-car camera and three of four more times
afterwards. The trooper explained that "based on [his] training and
experience" he recognized this type of drifting as a sign of impairment.
The district court found the trooper's testimony credible and consistent
with the video footage. The court concluded that the evidence "of 5-6
drifting movements within a single lane of travel over the course of some 5
miles provide[d] a sufficient basis of suspicion to justify the stop of
defendant's vehicle." Consequently, the court denied defendant's motion to
suppress.
4. On appeal, defendant argues that the district court erred in
denying his motion to suppress because the state trooper did not have a
lawful basis to stop him. A motion to suppress involves a mixed question
of law and fact. State v. Simoneau, 2003 VT 83, 14, 176 Vt. 15, 833
A.2d 1280. We will uphold the trial court's findings of fact unless they
are clearly erroneous. Id. "The question of whether the facts as found met
the proper standard to justify a stop is one of law." Id. In this case, we
conclude that the court's findings are supported by the evidence and that
these findings support the conclusion that the officer had a reasonable
suspicion of criminal activity, namely that defendant was driving while
intoxicated.
5. A legal investigatory stop is justified if a police officer has
a reasonable and articulable suspicion of criminal activity. State v.
Bruno, 157 Vt. 6, 11, 595 A.2d 272, 275 (1991). "The officer must have
more than an unparticularized suspicion or hunch of criminal activity, but
needs considerably less than proof of wrongdoing by a preponderance of the
evidence." Simoneau, 2003 VT 83, 14. Reasonable suspicion is assessed
by examining the totality of the circumstances. State v. Lamb, 168 Vt.
194, 196-97, 720 A.2d 1101, 1103 (1998). As such, we have upheld
investigatory stops for suspicion of DUI based on erratic driving. See
State v. Boyea, 171 Vt. 401, 410, 765 A.2d 862, 868 (2000) (relying on
information that vehicle was acting "erratically" - defined in dictionary
as wandering or without certain course - to support reasonable suspicion
that driver might be intoxicated); Bruno, 157 Vt. at 11, 595 A.2d at 275
(concluding that officer's observation of defendant drifting in his lane,
pulling off road, and then operating his vehicle briefly without headlights
was sufficient to give rise to reasonable and articulable suspicion of
DUI). The reasonableness of the stop is assessed by "[b]alancing the
public's interest in safety against the relatively minimal intrusion posed
by a brief investigative detention." Boyea, 171 Vt. at 410, 765 A.2d at
868 (explaining that the serious threat to public safety posed by
intoxicated drivers justified officer's stop, given report that defendant
was driving erratically and the minimal intrusion posed by stop).
6. Here, the trooper observed defendant drift back and forth
within his lane several times over a distance of approximately five miles.
Defendant argues that drifting within a lane of traffic is not a traffic
violation and, thus, cannot serve as the basis for a stop. We decline to
adopt such a bright-line rule. Although we agree that most of our
decisions involve instances in which the stop is justified by a violation
of a law specifically regulating safe operation or the physical condition
of a vehicle, there is no requirement that an officer, having reasonable
suspicion of DUI, must also have cause to believe the operator has
committed another offense. As discussed above, reasonable suspicion of
driving while intoxicated is assessed by examining the totality of the
circumstances and consequently may be supported by evidence of erratic
driving, whether or not it amounts to a specific traffic violation.
Further, we rely on the expertise of the officer in recognizing signs of
impaired operation.
7. In upholding the district court's decision that reasonable
suspicion of impaired operation existed in this case, we note that the
overwhelming weight of authority from other jurisdictions holds that
repeated intra-lane weaving can create reasonable suspicion of impaired
operation. See Gaddis ex rel. Gaddis v. Redford Twp., 364 F.3d 763, 771
(6th Cir. 2004) (concluding that officer had reasonable suspicion of drunk
driving where defendant "weaved twice to the left to touch the dividing
line in a fairly short span"); People v. Greco, 783 N.E.2d 201, 204-05
(Ill. App. Ct. 2003) (holding that "erratic driving, including weaving
within a single lane, is sufficient to justify a traffic stop"; collecting
cases from Illinois and many other jurisdictions, and observing that
"research reveals a general consensus that weaving within a single lane may
be a basis for a valid traffic stop"); State v. Tompkins, 507 N.W.2d 736,
737, 739 (Iowa Ct. App. 1993) (concluding that weaving several times within
a mile from center line to right boundary line of road created reasonable
suspicion of impairment; collecting cases from other jurisdictions); State
v. Field, 847 P.2d 1280, 1281-82, 1284-85 (Kan. 1993) (concluding that
weaving within lane four times over several city blocks created reasonable
suspicion; collecting cases). Decisions superficially to the contrary tend
to involve isolated incidents of conduct or conduct less clearly related to
impairment. See State v. Caron, 534 A.2d 978, 979 (Me. 1987) (holding
officer's observation of "brief, one-time straddling of the center line of
an undivided highway" did not justify stop (emphasis added)).
8. Contrary to the dissent's claim, we do not announce a "bright
line" rule that intra-lane weaving creates reasonable suspicion to stop in
all cases. Instead, we continue to hold that reasonable suspicion must be
based on the totality of the circumstances. See Lamb, 168 Vt. at 196-97,
720 A.2d at 1103. Thus, in reaching our decision, we do not quarrel with
the point of some of the dissent's cases that slight degrees of intra-lane
weaving alone do not justify a stop. See Warrick v. Comm'r of Pub. Safety,
374 N.W.2d 585, 585-86 (Minn. Ct. App. 1985) (finding no reasonable
suspicion where intra-lane weaving was " 'subtle' and involving inches");
Salter v. North Dakota Dep't of Transp., 505 N.W.2d 111, 112, 114 (N.D.
1993) (finding no reasonable suspicion where intra-lane weaving involved
"slight movement back and forth"). Nor do we quarrel with the dissent's
cases that hold that a bright-line rule is inappropriate. See State v.
Otto, 566 N.W.2d 509, 511 (Iowa 1997); State v. Post, 2007 WI 60, 18, ___
N.W.2d ___.(FN1) Indeed, we believe it is the dissent that is looking for
a hard rule that intra-lane weaving alone cannot create reasonable
suspicion of impairment. We stand by our assessment that the overwhelming
majority of the precedents from other jurisdictions support our decision.
9. In this case the officer testified that the intra-lane weaving
he observed showed that there was a reasonable suspicion of impaired
operation, based on his training and experience. The trial judge relied on
his testimony,(FN2) along with the videotape showing defendant's operation,
to find that there was reasonable suspicion of impaired operation. Based
on our prior decisions and the authority from around the country, we affirm
that decision.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Dissenting
10. JOHNSON, J., dissenting. While otherwise innocent behavior
might sometimes appear suspicious to a trained police observer, the
standard for a constitutionally permissible stop of a vehicle nevertheless
remains that of ordinary common experience. As Chief Justice Burger once
observed, "[m]uch as a 'bright line' rule would be desirable, in evaluating
whether an investigative detention is unreasonable, common sense and
ordinary human experience must govern over rigid criteria." United States
v. Sharpe, 470 U.S. 675, 685 (1985). In upholding the investigatory
detention here, based on nothing more than a vehicle's drifting within its
lane several times over the course of five miles, I fear the majority has
opted for a simple, bright-line rule over common sense and ordinary human
experience. I therefore respectfully dissent.
11. As the majority accurately states, the investigating officer
here initially observed defendant's vehicle drift twice within its lane
over a distance of about two miles while traveling southbound in the
right-hand lane of Interstate 89. The officer pulled in behind the
vehicle, activated his video camera, and followed for another three miles,
observing the vehicle drift slowly several more times between the center
line and the fog line. The officer acknowledged that the vehicle did not
jerk or swerve abruptly, and further acknowledged that drifting within
one's lane of travel is normal for most drivers. Indeed, when asked how,
in his experience, the defendant's driving "differ[ed] from any other
driver who is on the road, day or night?" the officer admitted: "It
doesn't. I stopped him and he was impaired, that's the only difference."
12. As the majority here also correctly observes, most
jurisdictions have held that repeated weaving or drifting within a single
lane of travel may support a reasonable suspicion of impaired operation.
People v. Greco, 783 N.E.2d 201, 205 (Ill App. Ct. 2003) (noting the
"general consensus that weaving within a single lane may be a basis for a
valid stop"). Some courts have even suggested that such behavior, standing
alone, may give rise to the reasonable suspicion necessary to support an
investigative detention. Id. at 204 (stating that "erratic driving,
including weaving within a single lane, is sufficient to justify a traffic
stop"). Many, if not most courts, however, have relied on intra-lane
weaving as one of several factors that cumulatively may support a
reasonable suspicion of impaired driving. Indeed, in Gaddis ex rel.
Gaddis v. Redford Township, 364 F.3d 763 (6th Cir. 2004) - one of the four
out-of-state cases on which the majority relies - the court of appeals
emphasized that its finding of reasonable suspicion was based on several
factors, including the officer's observation that the defendant weaved
twice within a few hundred feet, appeared to be leaning or slumped to the
side, and was driving more slowly than other cars on the road. Id. at 771.
The majority also relies on State v. Tompkins, 507 N.W.2d 736 (Iowa Ct.
App. 1993), but here again it is worth noting that the Iowa Supreme Court
carefully limited that decision in a subsequent holding as follows: "We do
not believe Tompkins should be read to hold that observations of a vehicle
weaving within one's own lane of traffic will always give rise to
reasonable suspicion for police to execute a stop of the vehicle." State
v. Otto, 566 N.W.2d 509, 511 (Iowa 1997) (emphasis added). Otto upheld the
vehicle stop in question on the strength of multiple factors, including
evidence that the subject vehicle was traveling well below the speed limit,
changing speeds erratically, veering from left to right at sharp angles,
and constantly weaving back and forth within its lane over the course of
three and a half miles. Id. at 510-511; see also Veal v. State, 614 S.E.2d
143, 145 (Ga. Ct. App. 2005 ) (upholding vehicle stop where vehicle was
weaving within its lane and traveling thirty miles per hour below the speed
limit).
13. Where other factors are not present, courts have been
particularly careful to examine closely the nature of the intra-lane
movement, declining in some cases to find reasonable suspicion when the
movement was neither pronounced nor unusually repetitive. In State v.
Binnette, 33 S.W.3d 215 (Tenn. 2000), for example, the arresting officer
stopped a vehicle after observing it weave back and forth within its lane
several times. The Tennessee Supreme Court refused to validate the stop,
observing that there was no evidence of either "pronounced weaving or hard
swerving" or unusual or "exaggerated" movements by the vehicle within its
lane. Id. at 219. Quoting the lower court's dissenting opinion, the
Tennessee court observed that "it is the rare motorist indeed who can
travel for several miles without occasionally varying speed unnecessarily
[or] moving laterally from time to time in the motorist's own lane." Id.
at 219. The court thus concluded that "[w]hile [the defendant] did move
laterally . . . within his lane while operating his vehicle, we find that
his movement was not pronounced, and therefore did not give rise to
reasonable suspicion that he was under the influence of an intoxicant."
Id. at 220; see also United States v. Lyons, 7 F.3d 973, 976 (10th Cir.
1993) (finding evidence that vehicle weaved three or four times within its
lane over the course of two miles was insufficient standing alone to uphold
investigative detention), overruled on other grounds by United States v.
Botero-Ospina, 71 F.3d 783, 786-87 (10th Cir. 1995); Warrick v. Comm'r of
Pub. Safety, 374 N.W.2d 585, 585-86 (Min. Ct. App. 1985) (finding "subtle"
weaving within lane over course of five miles did not justify investigatory
detention); Salter v. North Dakota Dep't of Transp., 505 N.W.2d 111, 113
(N.D. 1993) (invalidating stop premised on movement of vehicle within its
own lane where there was "no evidence of erratic movement, sharp veering,
or any of the other factors noted in prior cases"). Conversely, courts
have not hesitated to uphold investigative detentions where there was
evidence that a vehicle's movements, even within a single lane, were
sufficiently erratic, pronounced, or prolonged to raise a reasonable
suspicion of impaired driving. See, e.g., People v. Perez, 221 Cal. Rptr.
776, 778 (Ct. App. 1985) (concluding that "pronounced weaving which
continued for about three-quarters of a mile" supported motor vehicle
stop); Roberts v. State, 732 So. 2d 1127, 1128 (Fla. Dist. Ct. App. 1999)
(upholding stop where vehicle was "weaving significantly from side to side
within the lane"); Neal v. Commonwealth, 498 S.E.2d 422, 423, 425 (Va. Ct.
App. 1998) (upholding stop where evidence showed that, over course of
one-half mile, defendant's vehicle was "constantly moving from side to side
in its lane" rather than an "isolated instance of mild weaving").
14. In a recent decision closely on point, State v. Post, 2007 WI
60, ___ N.W.2d ___, the Wisconsin Supreme Court emphatically rejected the
state's appeal for a bright-line rule, holding instead that "weaving within
a single lane of traffic does not alone give rise to the reasonable
suspicion necessary to conduct an investigative stop of a vehicle." Id.
2, 14 ("[W]e reject the bright-line rule that repeated weaving
within a single lane alone gives rise to reasonable suspicion." (emphasis
added)). In so holding, the court underscored the traditional principle
that reasonable suspicion must be determined from the totality of the
circumstances, and observed in this regard that "repeated weaving within a
single lane" was a highly "malleable" concept which could include much
otherwise "innocent conduct." Id. 20. Indeed, echoing the court in
Binnette, the Wisconsin court recognized the "universality of drivers'
'weaving' within their lanes," id. (quoting Lyons, 7 F.3d at 976), and thus
concluded that upholding a stop based solely on such evidence without
examining the precise nature of the vehicle's movement and the surrounding
circumstances could "subject many innocent people to investigation." Id.
While acknowledging that the case was close, the court ultimately upheld
the stop based on evidence that the defendant's vehicle swerved
continuously from the mid-line to the parking lane in a broadly sweeping
arch inside a twenty-four-foot-wide lane, which was more than twice the
width of the normal traffic lane. Id. 36-37.
15. Assessed in light of these standards and authorities, it is
inescapable that the evidence here does not rise to the level necessary to
support an objectively reasonable, articulable suspicion of criminal
activity. As noted, the investigating officer testified that he observed
defendant's vehicle drift "slowly" within its lane perhaps five or six
times over a distance of five miles. Under further questioning, he
specifically denied that the vehicle "jerked" or "swerved" abruptly at any
point. Indeed, the officer candidly admitted that defendant's driving did
not "differ from any other driver," acknowledging, as the court in Lyons
put it, the "universality" of drivers weaving within their lanes. 7 F.3d at
976. In short, the officer observed nothing to distinguish defendant's
occasional drifting within his lane of travel from that of other innocent
drivers, or to indicate that it was the result of impaired operation.
16. The majority's conclusion to the contrary rests on the simple
but unsustainable assumption that drifting within one's lane of traffic is
sufficient, standing alone, to support a reasonable suspicion of impaired
driving. As many other courts have recognized, however, that assumption -
and the bright-line rule which follows - belies common experience. Indeed,
under such a rule a significant portion of the driving public could soon
expect to be subject to unforseen invasions of privacy on virtually a daily
basis. To avoid this unacceptable result, I would reverse the judgment of
the trial court, and grant defendant's motion to suppress. I am
authorized to state that Justice Skoglund joins in this dissent.
_______________________________________
Associate Justice
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Footnotes
FN1. We believe that both the Iowa and Wisconsin courts would affirm on the
facts of this case. The Iowa court cited State v. Dorendorf, 359 N.W.2d
115 (N.D. 1984) as its example of an instance in which intra-lane weaving
could properly justify a stop. Dorendorf is very similar to this case,
especially in its reliance on the experience and training of the arresting
officers to recognize the signs of impaired operation. Id. at 117. In
addition, the Wisconsin Supreme Court rejected defendant's argument that
intra-lane weaving cannot justify reasonable suspicion where lateral
movements are not "erratic, unsafe or illegal." Post, 2007 WI 60, 26.
In giving examples of when intra-lane weaving would not provide reasonable
suspicion, it cited cases in which the weaving was not significant like
Salter and Warrick. Id. 19 n.5.
FN2. Fact-finding is for the trial court and not this Court. Simoneau, 2003
VT 83, 14. The dissent finds that the officer admitted that
defendant's driving did not differ from any other driver on the road based
on one of the arresting officer's answers during cross examination. The
trial court made no such finding, and because that "admission" would be
wholly inconsistent with the rest of the officer's testimony, we conclude
that the court's findings are not clearly erroneous. |