STATE of Vermont v. Alan RIEFENSTAHL
No. 00-252
Supreme Court of Vermont
July 18, 2001
Motion for reargument denied June 28, 2001.
[779 A.2d 675]
Affirmed.
Motion for reargument denied June 28, 2001.
July 18, 2001. Defendant Alan Riefenstahl was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of
On October 26, 1999, at approximately 5:00 p.m., a South Burlington police officer received a dispatch that a sales clerk at the South Burlington Shell station had reported that the male operator of a black Ford Bronco with Vermont license plate BNR 139 “was possibly intoxicated and driving.” The informant identified himself by name to the police, and the informant‘s name was also provided in the dispatch to the officer. The informant reported that the Bronco was heading south on Shelburne Road. The officer proceeded north on Shelburne Road until she located the Bronco, and then turned around and followed the vehicle. While she attempted to catch up to the Bronco, there were first three other cars in traffic between the officer and the Bronco, and eventually only one other car between them. The officer testified that, while in pursuit, she did not observe any signs of erratic driving, but that she could not properly observe the Bronco because of weather conditions and the other traffic. She then observed the Bronco pull into a driveway. The officer activated her vehicle‘s blue lights and followed it into the driveway. Defendant exited the Bronco and stood next to it, with the door open, until the officer approached. The officer initiated field sobriety tests, which defendant failed. Subsequently, defendant was arraigned on the charge of DUI with a felony enhancement for a third offense. The information alleged that defendant had previously been convicted of DUI on January 3, 1995, September 11, 1991, and September 18, 1985.
Defendant moved to dismiss the charges, claiming that the officer lacked probable cause to stop him and process him for DUI. The court rejected his argument, ruling that under the totality of the circumstances the detailed information provided by the named informant, which the officer was able to confirm,
Defendant also moved pursuant to
On appeal, defendant first contends that the information provided by the named informant was insufficient to provide a reasonable articulable suspicion of wrongdoing to justify a stop. In the time since defendant filed his notice of appeal, we decided State v. Boyea, 171 Vt. 401, 410, 765 A.2d 862, 868 (2000), in which we held that an anonymous tip alone, reporting erratic driving, can justify a brief investigative stop where the tip accurately describes a vehicle and its route and location upon a highway. In Boyea, the officer did not observe any signs of erratic driving or suspicious behavior before he stopped the defendant‘s vehicle. Upon arrival at the predicted location of the vehicle, however, the officer confirmed the credibility and reliability of the tipster‘s information. Balancing the risk of harm posed by failing to detain the driver against the minimal intrusion occasioned by the detention, we concluded the stop was reasonable.
The reasonableness of the officer‘s investigative stop in this case is even stronger because the informant identified himself, his location of observation, and demonstrated his “willingness to bear the consequences of the accusation.” Lamb, 168 Vt. at 203, 720 A.2d at 1107 (Dooley, J., dissenting); cf. Florida v. J.L., 529 U.S. 266, 275 (2000) (Kennedy, J., concurring) (anonymous informant “has not placed his credibility at risk and can lie with impunity“). Generally, information about criminal or suspicious activity from a citizen, who is not a paid informant and is unconnected with the police, is 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). The informant here provided a detailed description of the vehicle, its make, model, license plate number, route and direction of travel. The informant also reported that the operator was possibly intoxicated. The named informant‘s tip contained sufficient indicia of reliability to justify the stop. State v. Kettlewell, 149 Vt. 331, 335, 544 A.2d 591, 594 (1987); see also Adams v. Williams, 407 U.S. 143, 147 (1972) (rejecting argument that “reasonable cause for a stop ... can only be based on the officer‘s personal observation“).*
Defendant next challenges the court‘s failure to strike the two DUI convictions that supported the felony enhancement. Defendant maintains that the trial courts did not adhere to the strict requirements of
The purpose of
of rights and whether he understood everything on the change of plea form, to which defendant responded yes. The court informed defendant that he had a right to plead not guilty, asked if he had had an opportunity to consult with counsel, informed him of the maximum penalty and questioned defendant‘s counsel whether he could use the affidavit of probable cause as the factual basis for the plea, to which counsel responded yes. There was substantial compliance with
Regarding the 1995 change of plea, the State contends that defendant failed to preserve this issue as he did not present the trial court with a transcript of the 1995 change of plea. Defendant has the burden of proving that the 1995 plea was invalid. State v. Delisle, 171 Vt. 128, 132-33, 758 A.2d 790, 793 (2000). Defendant never presented the trial court with a transcript or other evidence supporting his claim that the plea was not knowingly and voluntarily made. See State v. Lambert, 146 Vt. 142, 145, 499 A.2d 761, 764 (1985) (“The State‘s ultimate affirmative duty to establish the validity of a plea does not excuse defendant‘s insufficient effort to come forward on his claim.“). Defendant made a statement to the court that he would be challenging the 1995 conviction, and was granted a continuance to allow a hearing on this claim, but he failed to follow up and present the challenge. Because he abandoned below the challenge to the
Affirmed.
Dooley, J., dissenting. This case is controlled by State v. Kettlewell, 149 Vt. 331, 544 A.2d 591 (1987), a case in which the State argued that the tip of an identified informant gave a state policeman reasonable suspicion to search a travel trailer controlled by defendant and containing marijuana and two Mexicans. We reversed defendant‘s conviction because the content of the tip was insufficient for the policeman to “reasonably surmise that the particular vehicle they stopped was engaged in criminal activity.” Id. at 335, 544 A.2d at 594 (quoting United States v. Cortez, 449 U.S. 411, 421-22 (1981)). The State‘s theory was that the tip was sufficient for the officer to have reasonable suspicion that the Mexicans were illegal aliens. We concluded, however, that the tip was equivocal — “I did not know whether they were legal or not” — and was conclusory because no reason was stated for the informant‘s suspicion. Id. at 337, 544 A.2d at 595. Because the requirements of Kettlewell, and the numerous United States Supreme Court decisions on which it is based, require that we hold that the stop of defendant‘s car in this case was unjustified, I dissent.
The entire relevant content of the informant‘s tip in this case was that the defendant “was possibly intoxicated.” If anything, this tip is weaker than that found inadequate in Kettlewell. It is wholly conclusory, lacking any supporting observations of defendant‘s conduct. It is, at best, equivocal, expressed in language that would apply to any driver on the road. Although it is difficult to find cases that are identical to this one, I note that courts have generally found inadequate justifications for searches and/or stops based on possibilities, with no supporting information showing the commission of a crime. See, e.g., State v. Williamson, 965 P.2d 231, 233 (Mont. 1998) (probable cause lacking where named informant reported a “possible drunk driver“); Graf v. Dep‘t of Commerce & Regulation, 508 N.W.2d 1, 3-4 (S.D. 1993) (anonymous tip that driver was “possibly” intoxicated insufficient to justify the stop); Garcia v. State, 894 S.W.2d 865, 869 (Tex. Ct. App. 1995) (no reasonable suspicion to stop where defendant was observed driving a truck away from a house which a federal officer reported was “possibly a storage point for narcotics“); see also Safford v. Department of Fire, 627 So. 2d 707, 709-10 (La. Ct. App. 1993) (no reasonable and articulable suspicion where female caller, claiming to be fireman‘s wife, made statements from which fire chief concluded fireman was “possibly intoxicated“).
Except for a footnote in response to this dissent, the majority ignores the requirement that the tip have sufficient content to raise a reasonable suspicion that defendant was committing a crime, instead detailing why, based on our recent decisions, the informant‘s statement was reliable because the informant gave his name and was able to describe defendant‘s vehicle and route of travel. I agree that the State has established reliability, but find this discussion beside the point. The reliability of the informant cannot make up for an inadequate statement on which to base a stop.
Indeed, I think the majority‘s reliance on informant tip cases is now producing an improper distortion in our law. I cannot believe the majority would uphold a stop by a police officer who testified
Finally, I emphasize that I would be more likely to accept the majority position if I thought this approach necessary to combat DUI. In fact, the record before us demonstrates to the contrary. The State obtained an affidavit from the informant that shows he is a former bartender and recognized numerous signs of intoxication in defendant. If the police dispatcher had only asked the informant to clarify his opinion and describe the observations behind the opinion, this case would probably not be here on appeal. Rather than adopting an unprecedented and unwarranted relaxation of constitutional requirements to justify a stop, we should be sending the message that police departments need to tighten procedures to obtain the information necessary to properly support a stop.
I dissent. I am authorized to state that Justice Johnson joins in this dissent.