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)
Yes.
NM
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?
O
Correct.
NM
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?
O
Ah, I’m not sure.
NM
So why did you want to talk to
her?
O
Well, she just left her car there
. . .
NM
Ooookaayyy—maybe she went home to
call a friend to help her get the car unstuck?
O
She should call 911 and get a tow
truck!
NM
(flipping through Vermont
Statutes Annotated, including Motor vehicle code)
Hmmmm, let’s see—yeah, I’m not
finding that in here. . .?
O
Come on judge, you don’t think
that’s suspicious?
NM
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?
O
Well, I started asking her
questions-
NM
Such as?
O
Well, have you been drinking
tonight?
NM
To which she answered—
O
Well, she was neither clear nor
articulate, and she wouldn’t make eye contact, and she was leaning on a wall .
. .
NM
(leaning forward, brows arched)
—and . . .?
O
Well, I told her I was conducting
an investigation, and we could do this “one of two ways.”
NM
Hmmm—what did you mean by that?
O
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.
NM
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).
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