This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter
Appeal from: Superior Court, Chit. Crim. Division. DOCKET NOS. 9-1-14 Cncs & 100-1-14 Cncr. Trial Judge: Samuel Hoar, Jr.
Reiber, C.J., Dooley, andEaton, Jr., JJ.
In the above-entitled causes, the Clerk will enter:
Defendant appeals the civil suspension of his driver's license and his conviction for driving while under the influence (DUI), arguing that the court erred in denying his motion to suppress. We affirm.
The court found the following facts. On an evening in December 2013, the Colchester Police Department received a call reporting that a person had been seen walking on the Island Line causeway and appeared to be intoxicated and underdressed for the weather. Two police officers, who were both in uniform and armed, were dispatched to the area in separate cruisers to investigate. When the first officer arrived at the parking area closest to the bike path, he observed a single vehicle -- defendant's -- in the lot with its lights on and engine running, and parked facing out. The officer pulled his vehicle in next to the parked vehicle. The second officer also arrived and parked closer to the exit of the parking lot in a position that allowed other vehicles to pass around to enter or exit. The second officer headed toward the bike path.
The first officer approached defendant's vehicle, tapped on the driver's window and asked defendant to roll down the window. He engaged in conversation with defendant to determine if defendant was the individual of concern or had information regarding the individual. During the conversation, the officer observed that defendant's speech was slurred, his eyes were watery, and there was an odor of intoxicants. When asked, defendant admitted drinking, and stated he was planning to go home in twenty minutes. The officer then asked defendant to exit the vehicle to perform field sobriety tests. The results of the tests led to defendant's arrest for DUI.
Defendant filed a motion to suppress, arguing that he was illegally seized when the officer approached his vehicle in the parking lot. The trial court concluded that the conversation between defendant and the officer was a casual encounter, not a seizure, and, even if there was a seizure, it was justified under the community caretaking doctrine. Defendant appeals.
On appeal from a motion to suppress, we give deference to the trial court's underlying findings of fact, but review the court's legal conclusions de novo. State v. Lawrence, 2003 VT 68, ¶ 8, 175 Vt. 600, 834 A.2d 10 (mem.).
The legal question presented in this case is whether defendant was seized when he was approached in the parking lot. A police officer may approach and question a citizen without conducting a seizure. State v. Pitts, 2009 VT 51, ¶ 7, 186 Vt. 71, 978 A.2d 14 (" Both the United States Supreme Court and this Court have recognized that a seizure does not occur when an officer merely approaches an individual and asks certain questions, and therefore no minimal level of suspicion of wrongdoing is necessary." ). Similarly, officers may approach and question a person seated in a parked vehicle without necessarily conducting a seizure. State v. Burgess, 163 Vt. 259, 261, 657 A.2d 202 (1995). " The question in determining whether an encounter between a citizen and police constitutes a seizure is whether, given all of the circumstances, the encounter is so intimidating that a reasonable person would not feel free to leave without responding to the officer's requests." State v. Jestice, 2004 VT 65, ¶ 5, 177 Vt. 513, 861 A.2d 1060 (mem.); see Pitts, 186 Vt. 71, 2009 VT 51, ¶ 8, 978 A.2d 14 (explaining that determining whether seizure has occurred involves objective inquiry and depends on particular facts of encounter). This test focuses on the " interaction as a whole." Jestice, 177 Vt. 513, 2004 VT 65, ¶ 5, 861 A.2d 1060.
Here, the court found that the encounter between defendant and the officer was not a seizure because there was not a show of authority so intimidating that " a reasonable person would not have felt free to leave without responding." The court emphasized that although the officer was wearing his uniform and carrying a weapon and flashlight, he did not brandish the weapon or impose authority over defendant. Further, his cruiser was parked next to defendant's vehicle, allowing defendant easy and uninhibited opportunity to exit from the parking lot.
Defendant contends that the court's analysis was erroneous because the court placed improper emphasis on whether the police cruiser blocked defendant's exit. Defendant points to the following facts as indicative of a seizure: two uniformed, armed officers in marked police cruisers entered the parking lot; the lot was small and in a remote location; it was dark and cold; the police cars parked next to defendant and near the exit; and the first officer shone a flashlight into defendant's vehicle, knocked on the window and instructed defendant to roll down his window.
We conclude that these facts demonstrate the initial encounter between defendant and the officer was a casual encounter and not a seizure. The officer parked his car next to defendant's vehicle without blocking defendant's exit. Further, the officer casually approached the vehicle and gestured for defendant to roll down his window. Although he was in uniform and armed, he did not brandish a weapon or make an outward show of force. He engaged defendant in a nonconfrontational conversation regarding whether defendant had seen someone in distress; he did not question defendant about criminal conduct. Cf. Pitts, 186 Vt. 71, 2009 VT 51, ¶ 9, 978 A.2d 14 (explaining that " pointed questions about drug possession or other illegal activity" may convert consensual encounter into seizure). Further, although he and his cruiser were nearby, the second officer did ...