*1
again
anything
pocket.
STATE of Vermont v. David L.
if
De-
the
HOLLISTER
fendant answered
he had
produced
the
want
officer
two
marijuana
“baggies”
of
and a
youth
produced
The other
a
“baggie” marijuana.
of
possession
Defendant was arrested for
His motion to
the
Defendant,
March
David
evidence,
court,
granted by the
is now
Hollister,
charged
possession
was
us.
before
marijuana as a result of an encounter
held
that defendant was
police
with a uniformed
officer
in
seized, as
that term used in the Fourth
Bennington.
sup-
moved
Amendment to the United States Consti-
press
during
the evidence obtained
tution,
approached
officer
alleging
the encounter
questions.
Bennington
was an
asked him
unlawful seizure.
Since
time,
grounds
ap-
District
had no
a
and the State
seizure at
peals. We reverse and remand.
the court held that the seizure violated
26,1994,
approximately
On June
required
8:30
the Fourth Amendment and
p.m.,
a
suppressed.
uniformed
arrived at
officer
the evidence be
up
to clean
that a
oc-
glass
ignition
cherry
question-
broken
a
from
curred at the commencement of
telephone
nearby.
ing.
bomb in a
booth
young people
a
known location for
has addressed this
drugs
use
commit
held that “mere
vandalism,
closed.
The officer noticed
a
seizure.” Florida v.
males,
young
(1991).
two
one
ofwhom was defen-
If
dant,
years
age, walking
here,
present
then nineteen
seizure was
an issue we do
library’s handicap
decide,
ramp.
down the
it commenced
later
time
testified,
they
As he
“didn’t know what
when the
search the
doing.
t]hey may
knapsack
[but
. .
have been
and defendant’s
[doing something illegal].”
By
seizure, however,
up
walked
He
time of
ramp, approached
youths
officer had observed alcohol on defend
they
breath,
asked them what
and defendant had admitted
conversation,
library. During the
drinking
he no-
been
minor.
ticed the
smell
alcohol on
Possession of alcoholic
657(a)
defendant admitted he had minor
ais
crime. See 7 V.S.A.
drinking.
been
(punishable by
days
The officer asked defend-
fine
$500
and/or
knap-
jail). Thus,
ant if he
could look
the officer had reasonable and
opened
sack.
articulable
that defendant had
committed,
it
no alcohol
contained
or contraband.
and was
to com
mit,
youths
The officer then
asked both
“if
a crime.
Such
had
in their
has committed
is about
they should
if
crime allows for
partially
Ohio,
Terry
could see that.” Defendant
seizure under
U.S. 1
pocket, implying
Kettlewell,
out his front
See
State
empty,
but the
During
officer noticed there
pocket.
seizure,
still was a
He asked
seek con-
suspected
sent for a search
any-
drinking
Florida v.
crime. See
had,
(1983).*
thing
shouldn’t
[and
oc-
there was
The brief encounter
person in
place,
that]
public
within
was well
curred
position at that time
and,
there-
of a
the limitations
*2
that
would not believe
fore, any
that
was not
occurred
free to leave.
agree
with
unreasonable.
for
rationale
trial court’s
that the seizure be-
The court thus held
marijuana and
gan not
the officer first
when
alleged in
to
also
his motion
their
defendant and his
about
voluntarily
did not
that he
library,
presence
but when
at the closed
pockets.
The trial
sent
the search of
pair
questioned the
ille-
the officer
about
not reach this issue. We remand
court did
gal activity
sought their
consent to
whether
evidence
for consideration of
suppressed on this alternative
I
trial court’s
believe that the
conclu
ground.
Supreme
is
sion
consistent with
reasoning
in Bostick.
Court’s
remanded.
Reversed and
reaffirmed that the “crucial test”
Johnson, J., dissenting.
determining
whether a seizure has
court for
criticizes the trial
“whether, taking into
occurred is
account
seized “when the officer
defendant was
surrounding
all of
the circumstances
ques-
approached him and asked him
encounter,
police conduct would ‘have
at
679
at 884.
tions.” 165 Vt.
person
communicated to
Although agree
I
United
liberty
ignore
that he
at
has held that “mere
police presence
go
about his busi
a sei-
lice
(quoting Michigan v.
ness.’” Id. at 437
zure,”
(1988)).
Florida
Chesternut,
(1991),
disagree
I
with the
then,
question,
is whether
reasonable
trial
court’s deci-
characterization
person
position
would have
stated:
sion. The court
questions
ignore
felt free
the officer’s
away.
simply
at
walk
Id.
question
no
in The
There is
applied
this
test
that at
mind
least at the
Court’s
result.
reached the correct
Several as
point when Officer Doucette
pects
of the encounter would
made
asked the defendant and his
person
coerced
re
reasonable
feel
ap
strained. The uniformed officer
proached
young men
the two
as
accept
hair-splitting
ar-
We do not
stood in
walked down a
gument of the dissent that
path.
immediately
request
to search
an area that
The officer
could
long
as
alcohol and
contain
accusatory
incriminating
started
with
the officer believed alcohol would
why they
questions, asking the two men
li-
The officer testified that the
found.
the closed
closed,
brary,
was a
location
when
known
drinking. The officer was
had been
youngsters
consume alcohol
persistent,
asking to search
defend
illegal drugs, commit acts of van-
and do
dalism,
continuing
ant’s
and then
and so forth. We believe the
so on
search re
defendant
to search for evi-
officer could
Quino,
State v.
vealed no contraband. See
illegal activity, such
dence
1992)
(Hawaii
(holding
drugs.
P.2d
the use of
seized,
justified. Spe
“seized”
where officer was
the seizure was
cifically, majority
states
the offi
initiated
asked intrusive and
cer had reasonable and articulable sus
insinuating questions, and then continued
picion that
been and
defendant had
after search
posses
crime of
carry-on bag
nothing).
revealed
minor,
sion
alcoholic
657(a).
agree
MS.A.
after smell
merely
does not become a seizure
because
ing alcohol on defendant’s
incriminating questions,
an officer asks
officer had a
and articulable
reasonable
police questioning techniques
posses
dissenting
coercive. I
with the
of alcohol.
sion
Based on
Little,
judges in
United States
the officer asked to search defendant’s
(10th
1994),
“[djireet,
Cir.
fo
knapsack. That search
no alco
revealed
cused,
accusatory
prolonged
question
Reading
hol or other contraband.*
ing
likely
commanding
tone ofvoice is
hearing
de
to make a
innocent
reasonable
feel
however,
suppress,
fendant’s motion to
coerced and
unable
terminate a
can see no connection between the offi
encounter.” Id. at 1512
dis
pos
cer’s
that defendant was in
case,
senting).
pro
In this
the officer’s
beverages,
session of alcoholic
longed, accusatory questioning
espe
search of defendant’s
cially disturbing given
youth.
The officer testified that after defend-
Zapata,
Cf.
drinking,
ant admitted
States v.
F.2d
that he had been
(10th
(“such
1993)
through
asked to look
defend-
attributes as
knapsack.
and an
age, gender, education,
and intelli
inspection
bag
revealed
gence
of the accused”
*3
be relevant in
any
or contraband of
kind.
then did
encounter).
determining voluntariness of
compan-
the officer ask
his
defendant and
I am also concerned that the officer
ion about the
contents of
never informed defendant that he was
Defense counsel
free to leave and
did
have to answer
request:
about the basis for the second
any
questions. See
501 U.S. at
(“particularly
noting”
[Hjaving
worth
failed
Q:
to discover
any
right
you
lice informed
bag,
alcohol in
consent); Little,
proceeded
refuse
18 F.3d at
to ask him did he
dissenting)
(agent’s
in his
failure to
have,
inform
right
defendant that she
which he shouldn’t
is that
right?
important
refuse consent
be
should
factor
in determining whether
seizure oc-
A: Yes.
curred). Again, this fact does not auto-
matically transform the encounter into a
Nonetheless,
light
seizure.
the issue was not raised
age
aspects
argued
the other coercive
some commentators have
permitting investigatory
rule
stops
telling. By
the omission is
based
on reasonable
informing
he did not have
investigations
of serious
respond
cooperate,
the officer could
LaFave,
offenses. See 4 W.
Search and
(with
mitigated
authority
his show of
(3d
9.2(c),
1996);
Seizure
at 28-32
ed.
risk,
course,
greater
that defendant
Adams,
Williams
cooperate).
would not
1970) (“I
gravest hesitancy
have the
majority skips
over the threshold
extending Terry
to crimes like the
occurred,
seizure
.”)
possession
J.,
(Friendly,
.
.
narcotics
.
instead
dissenting), aff’d,
that even if defendant
What was he
a known location
considered
library? Why
at the
act
substances and
use of controlled
illegal?
you
think
did
drinking, you
infor-
had no other
doing?
he
What was
which,
upon
mation
the fact that we’ve
A: Based on
questions in the
have some
even
vandalism com-
had numerous
you?
place, did
just
plaints,
fact of con-
A: Other than the
is like a haven
versing
Hollister and
with Mr.
hang
out and
the kids to
admitted the fact that he
and so on and so
be destructive
consuming
and he
on the fact that
forth and based
night
Sunday
it was I believe
library
was closed
you
that and
But after he said
Q:
coming
the hand-
down
you
bag, were
looked into his
icapped
which leads
telling you
that he was
satisfied
library, there was
the truth?
that I had that
some concern
they may
have been involved
alcohol,
any
they didn’t have
A: That
illegal.
yes.
Okay,
you
articu-
didn’t
Q:
already
satisfied
As the officer
illegality was in
late what the
alcohol,
possess
defendant did
affidavit,
you?
your
did
What
to search defendant’s
they doing
specifically
were
suspi-
related to his
could not have been
illegal?
you thought was
activity. In
criminal
cion of
original
officer had determined
they were
A: I didn’t know what
unfounded,
more,
suspicion was
without
doing,
that’s the reason
justified
the officer was
stopped them.
the limited
seizure of defen-
Okay, you
what
didn’t know
Q:
Royer, 460
dant. See Florida v.
your
doing, but is it
(1983) (plurality opinion)
sei-
your testimony
to-
probable
zure
on less than
day
you suspected
legitimate
law enforce-
cause because
something illegal?
interests, scope of detention must
ment
carefully
underlying justi-
tailored
They may have been.
A:
fication).
illegality
of the continued
justification
taints defendant’s consent to
for his contin-
The officer’s
*4
pockets, if indeed he con-
search of his
and his search
ued
pockets
sented at all. See id.
502-03
not that he was still
rather,
permis-
alcohol;
police action exceeded bounds of
looking
he could
only vague, generalized
defendant’s consent to
concern of
sible
luggage
illegality.
was tainted
possible
In
the ma-
search of his
illegality).
jority’s reasoning ignores the officer’s
argu-
characterizes this
that after the fruitless
further
n*,
“hair-splitting.”
longer
165Vt. at 554
ment as
search of
HEBERT v. STATE
Harold
a colorful
at 884 n*.
Vermont, et al.
explain
response,
it does not
part of
majority glosses
the second
over
A.2d
determining that
Terry inquiry. After
investigatory stop
on rea
was based
inquiry is
suspicion, “the next
sonable
Plaintiff,
18, 1996.
the administra
April
scope
are rea
its
and duration
LaPlant,
Ann
of Rose
tor of the estate
investigation
be as
must
sonable.
in
1991 while
suicide in
who committed
bearing
possible,
minimally
intrusive
Community
at the Chittenden
carcerated
gave
rise
circumstances
in mind the
Center, brought
against
suit
Correctional
suspicion.”
and several correc
the State Vermont
1995).
Tehrani,
under the
employees and officials
tions
continued
Act, 12 V.S.A.
Tort Claims
Vermont
pockets after he
search of
§
§
1983.Defendants
and 42 U.S.C.
suspicion was un
determined
pleadings
judgment
on
on the
moved for
test. The
founded fails this
ground
the State and
that both
that “the officer could
immunity from
individual defendants
search for evidence
motion,
trial court denied the
suit. The
n*,
activity,”
at 554
165 Vt.
§
holding that 12
VS.A.
n*,
prin
ignores the settled
State,
A.2d at 884
against
and that the
suit
stop
ciple
could be sued
individual defendants
tailored,”
“carefully
capacities
42 U.S.C.
personal
under
must be
received
“minimally
1983. Defendants
and as
intrusive
U.S. at
interlocutory appeal.
permission
to file
Tehrani,
possible.”