State v. Paro, 2012 VT 53 (mem.)
Why reinvent the wheel? Here’s how the SCOV frames it: “This case presents a simple set of facts and a single question for review: whether a truck idling in the middle of the night in the parking lot of an auto repair shop that had previously been burglarized is sufficient to give police reasonable and articulable suspicion of criminal activity.” The SCOV finds that it does not and reverses the trial court.
(In other, unrelated news, the SCOV does not rule on whether a giant tractor in a police parking lot gives police a reasonable and articulable suspicion of criminal activity. (Apologies to Roger Pion and the Orleans County Sheriff’s Department.))
Defendant stipulated to the facts as found by the trial court, arguing only that the trial court erred in its application of the law when it denied her motion to suppress.
The Northeast Foreign Cars (NFC) lot had been burglarized seven times over the past 12 years at the time of Defendant’s arrest. Accordingly, the lot was on a “directive patrol list”—meaning it was an area that patrol officers should keep an eye on. Are you starting to get an idea of what happened here?
That’s right: a police officer was traveling by NFC and noticed a pickup truck idling in the parking lot. The police officer thought this was suspicious, as the shop was closed, and he knew about the previous break-ins (the officer had even investigated thefts at the lot a year earlier). The officer pulled into a nearby motel’s parking lot, started to turn around, and the truck pulled out of the parking lot and headed toward the police officer. Whoops.
The officer stopped the truck based solely on his suspicion that the driver was up to no good at the NFC lot. Lo and behold, the driver had been drinking. She was charged with DUI, and moved to suppress all evidence obtained through the traffic stop under the Fourth Amendment of the United States Constitution and Article 11 of the Vermont Constitution.
The trial court denied the motion, concluding that under the totality of the circumstances, the police officer had a reasonable and articulable suspicion of criminal activity when he stopped Defendant’s vehicle. The trial court reasoned that the officer’s experience with and knowledge of the earlier break-ins, the truck’s idling in the parking lot in the middle of the night, and that the truck pulled out when the officer started turning around to investigate, gave rise to a reasonable suspicion of wrongdoing. Sure, there might be a legitimate reason for Defendant to be idling in the parking lot in the middle of the night, but it was just as likely that she “was there for nefarious purposes.”
Accordingly, the trial court distinguished several earlier SCOV “circumstances-failed-to-establish-a-reasonable-and-articulable-suspicion-of-criminal-activity” decisions, concluding that the facts of this case gave “rise to a higher level of particularity.”
Defendant renews her arguments on appeal. The SCOV notes the standard for a reasonable-and-articulable-suspicion stop, which may be loosely phrased as more than a general suspicion or hunch. In other words, there has to be reason more specific than “It just didn’t seem right.”
And that’s where this case is going. The SCOV finds the circumstances most-similar to a 1984 case in which an officer was driving home and saw a car that, more or less, looked out of place. As in that case, because Defendant was not doing anything illegal or inherently suspicious by idling in a parking lot, the SCOV holds that the officer had no cause to stop her. The SCOV also finds two other earlier cases similar, but if you want the full analysis, you can read the opinion. This we will say: if you’re a defense lawyer, and you want to attack a stop, this is your new favorite case.
The SCOV closes with a criminal-defense gem: “We recognize that police officers are trained to be suspicious and it is their job to investigate suspicious situations. But we must also be mindful of our right to wander where we please, when we please, without fear of a police seizure.”
One should note, however, that such wandering should not be with one’s vehicle across the yellow dividing line of a highway. That, as you may know, can provide the reasonable and articulable suspicion of wrongdoing found lacking in this case.