Saturday, December 14, 2013

Amendments 5 and 4, Where are You?

State v. Sullivan, 2013 VT 71  

On a cold January night, a police officer was driving down the road when he passed a car stuck in a snowbank, partially off the road.  A short distance later, he saw a solitary woman walking down the road.  The officer stopped and offered the woman a ride.  She accepted and explained that the car was hers and that she had become frustrated and pulled off the road after a fight with her boyfriend.

After dropping the woman off, the officer called in to report the car off the road and his delivery of the woman to her home.  Another on-duty police officer then arrived at the car and went through the glove box to confirm that the car belonged to the woman.  The officer who gave the ride also went back to “the scene” and informed officer #2 where he had dropped the driver.  

Let’s stop a moment and take note of what officer #2 knew and could reasonably suspect at this point.  A woman had driven a car into a snowbank in the winter and gone home.  There is no indication that there was damage to either the car or property.  The SCOV notes that part of the car was on the travelled portion of the highway.  If this constituted a safety hazard, it would seem the officer could have it towed.    

The important thing is that at this point, there was no evidence of criminal activity.  Moreover, it is arguable, under Vermont caselaw, to say that there was no “articulable, reasonable suspicion” that a crime had occurred.  Therefore, applying the SCOV’s precedent, the officer had no basis for the subsequent detention of Ms. Sullivan.  As Vermont law notes, “An investigatory detention must be supported by reasonable suspicion of criminal activity.

However, officer #2 went back to Defendant’s apartment.  He was invited in by Defendant’s grandmother, who then called Defendant into the common area of the apartment.  Defendant responded “evasively” to the officer’s initial questions about what happened that night, “avoiding eye contact,” and “leaning against a wall.”  

These, of course, are clearly recognized, empirically documented signs that a person, talking to police, may be guilty of a crime.  Isn’t that why we arrest all teenagers on sight?

Defendant’s speech was “neither clear or articulate.”  Beware, all ye mush-mouthed Vermonters—Rusty DeWees, I’m lookin’ at you—being unclear and inarticulate, if you take what follows from the SCOV as the standard, your thick tongue may now be a sure sign of criminal behavior.

Oh, and at some point the officer also detected a slight odor of alcohol—not, apparently, from Defendant—but while he was in her presence.

The officer then explained that he was “conducting an investigation” and that they could proceed “one of two ways.”  It is not apparent what these ways were because the officer began asking pointed, interrogation questions—“have you been drinking this evening?”  [No response from Defendant.]  “I’ll take [your lack of an answer] as a ‘yes.’”

In other words, despite the constitutional right to remain silent, the officer actually used Defendant’s silence as a factor to determine a reasonable suspicion/probable cause that Defendant was in fact guilty of a crime. 

Note, the SCOV appears to use the terms reasonable suspicion and probable cause interchangeably in reaching its determination that it was ok for the police to enter this woman’s house, intimidate her with the tough cop talk (“we can do this one of two ways”), ask her questions that were not related to the fact that her car had slid off the road, and basically treat her as if she were, well, a criminal suspect. 

After 17 minutes of interrogation, which the SCOV does not find to be an overlong time to have a policeman in your home, late at night, after your car slid into a snowbank interrogating you—the officer decides to arrest Defendant and following processing (during which Defendant admittedly blew a 0.24) charged her with DUI.

At the trial court, Defendant filed a motion to suppress arguing that the officer did not have a constitutionally valid basis for entering her home, remaining in her home, and asking her pointed questions intended to elicit incriminating statements.  The trial court denied the motion, and following her conviction, Defendant appealed. 

So what do we know?  

We know that in Vermont, people have a right to hold themselves free from search or seizure.  In cases where there is seizure and questioning, they are also entitled to the assistance of counsel.  And, finally, a citizen cannot be compelled to give testimony against him or herself.  If you doubt it, check out the U.S. Constitution’s fourth, fifth, and sixth amendments and the Vermont Constitution’s articles four, six, ten, eleven, and twelve.

To be clear, police have been deemed to have authority to make arrests without an arrest warrant for quite some time.  At some point, the U.S. Supreme Court decided that the constitutional requirement of a warrant issued upon probable cause as described in the fourth amendment was not, actually, a constitutional requirement.  The SCOTUS sanctioned the police’s ability to arrest without a warrant but with “probable cause” under the theory that the citizen arrested without a warrant could, after the arrest, challenge the officer’s probable cause to a judge or jury, who would play the role of a neutral magistrate.  In Vermont, you are allowed to do both—you can ask a judge to find that your constitutional rights were violated, and if that is denied, you can argue that they were violated to the jury during a trial.  

If a “neutral magistrate” agreed that the officer’s cause was not reasonable, the citizen can have the arrest vacated and/or the evidence obtained “suppressed” from trial, thereby, typically, rendering the government’s case against the citizen legally untenable.

In other words, despite the “plain language” of the constitution, police can arrest you, even for non-violent, minor criminal matters, without getting authority from a neutral magistrate. But, if you are arrested without a warrant, you can challenge the officer’s probable cause, by having a hearing before a judge.

Operating at the same time are Vermont’s article ten and the fifth amendment to the U.S. Constitution, which embody the right not to incriminate yourself (meaning you don’t have to tell the government things that will help it convict you of a crime), and the right to the assistance of counsel (which the courts have taken to require that, before you answer questions posed by police, you have a right to know that your answers can be used against you at trial, and you have a right to know that you can have an attorney assist you—which includes assistance in deciding whether or not to answer police questions).  We all know what this sounds like, basically

So, the U.S. Constitution says that police can’t seize you without a warrant, but the courts have said they can because the court’s will protect you after the arrest by reviewing whether or not the officer had probable cause and/or caused you to incriminate yourself while you were in custody and without the advice of counsel.  Not unreasonable balance, eh?

And maybe it would be a functional solution—if, after creating this exception to the warrant requirement, the courts hadn’t spent the last 150 years interpreting and re-interpreting the exception that the courts created to give more and more leeway to the government while redefining a citizen’s expectation of freedom in more and more narrow ways to the point where any Joe Shmoe can see the disparity between the written provisions and actual practice.   

All of which, by the way, could be remedied by police work that does not attempt to circumvent the warrant requirement in the first place.

But, I digress.  Instead, let’s try an experiment.  With the facts of this case in mind, what would a neutral magistrate have done?  I think it would sound a little something like this:

Neutral magistrate (NM)
So the car was partially off the road, the reverse lights were on, and the dome light was on?

Officer (O)

And Officer No. 1 told you he had picked up Defendant and given her a ride home?  And he didn’t say she appeared drunk or that there was any evidence of a crime?  She was upset about her boyfriend?


And we don’t have a law that makes it a crime to leave your car in a snow bank if, for example, you don’t have a cell phone—did she have a cell phone?

Ah, I’m not sure.

So why did you want to talk to her?

Well, she just left her car there . . .

Ooookaayyy—maybe she went home to call a friend to help her get the car unstuck?

She should call 911 and get a tow truck!

(flipping through Vermont Statutes Annotated, including Motor vehicle code)
Hmmmm, let’s see—yeah, I’m not finding that in here. . .?

Come on judge, you don’t think that’s suspicious?

Well, it might be suspicious; the question is: does it rise to the level of probable cause to believe a crime has been committed. So help me out here—car in snowbank, woman gets ride home, woman doesn’t call police—you go to her house—what happens?

Well, I started asking her questions-

Such as?

Well, have you been drinking tonight?

To which she answered—

Well, she was neither clear nor articulate, and she wouldn’t make eye contact, and she was leaning on a wall . . .

(leaning forward, brows arched)
—and . . .?

Well, I told her I was conducting an investigation, and we could do this “one of two ways.”

Hmmm—what did you mean by that?

Well, I figured it would make her nervous and intimidate her, so that she would confess and/or cooperate, even though I knew she didn’t have to, but that you, oh neutral magistrate, would parse my actions out, citing a bunch of different cases from the past, and justify my actions, finding that I didn’t violate her constitutional rights, even though I intimidated her and made veiled threats.

Ah. Yes. Well. Good work officer—I would issue a warrant on those grounds.

But the SCOV skips this uncomfortable dialogue and forced conclusion from my court fan-fic and says that the officer wasn’t there to arrest, he was there to investigate—and to investigate, the officer only needs reasonable suspicion of criminal activity.  As noted earlier, the SCOV has held that the trial court, acting in the capacity of ex post facto neutral magistrate, properly found that reasonable suspicion came from the car being in the snow bank, with its lights on, and the fact that Defendant answered the police officer’s question (“what’s going on”) by saying “nothing.”

So, the evidence obtained during this apparently consensual encounter is admissible at trial, and Defendant loses her appeal—and the system protects us from Defendant, albeit, some would argue, at the cost of a further erosion of the beautiful but messy restrictions placed in our founding documents by our founding fathers (and mothers).  

Apropos of nothing, it is interesting to note that the investigating officer was one Officer Muldoon, which leaves us to wonder if Toody was the one who gave Defendant the ride.  Actually, thinking of it that way, maybe it was the traffic jam in Harlem backed up to Jackson Heights that prompted the whole investigation.  Now that makes sense.

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