Friday, December 13, 2013

We Control the Horizontal


State v. Tuma, 2013 VT 70

Don’t call it a rollback, but today’s case marks the first time in a long string of probable cause cases where the SCOV has been skeptical and dismissive of a police officer’s basis for an initial stop to support the suppression of the events that followed. 

Cynics take note.

The facts are simple.  Police Officer stopped Defendant because the passenger’s side of Defendant’s front license plate was two inches lower than the driver’s side.  From this stop, the Officer noticed that Defendant was a bit hoary-eyed and ran him through the usual roadside coordination Olympics.  Defendant took bronze for effort, and things ended where they mostly do with an arrest and charge of DUI.

At trial, Defendant sought to suppress all evidence of the stop because the Officer lacked probable cause.  The State opposed. 


At issue is a motor vehicle statute, which requires all cars to affix their license plates in a manner where they are conspicuous.  Under this statute, license plates “shall be kept horizontal” and affixed so that they don’t swing.

Defendant’s position was that horizontal is a relative term that allows some variation and angle of deviation.  The State, because it has to defend the Officer’s probable cause, argued that horizontal means strictly level.

Before you rush out to your car with your plumb bobs and laser sights, know that the trial court agreed with the Defendant and granted the motion to suppress.  Two inches of slant was not enough to cancel out the general horizontal nature of the plate.  Without the stop, the state was dead in the water, and so the present appeal followed.

The SCOV does not appear to take this case too seriously.  From the beginning, it is clear that the Officer and the State overreached on this stop, and the SCOV, like a cat that has found a wounded shrew, toys with the issue before putting it to bed. 

For the SCOV the question is how to define “horizontal.”  How much slope should a plate have before it is labeled diagonal or vertical?  What degree or angle can trigger a reasonable stop? 

Casting through the State and Defendant’s arguments and attempts to define horizontal, the SCOV rejects each one, comes up with a few more, and rejects those too.  Despite the general tone of lightness that pervades the opinion, the SCOV appears to be genuinely searching for a workable definition. 

Eventually, the SCOV comes back to the purpose of the underlying statute, which is intended to require the conspicuous placement of license plates to ensure that they can be easily read.  In this respect, the horizontal requirement is akin to the prohibition against swinging plates.  It is a measure to promote visible plates.

Thus, the SCOV concludes, a plate is properly horizontal until the point that its angle or degree of declination makes reading the plates difficult.  The SCOV notes that this may standard may vary for different cars (particularly those with crooked bumpers) and different observers (we’re looking at you, Officer Magoo), but it is one that ultimately serves the purpose of the statute. 

Whether this definition will work in the long run remains to be seen, but here it works like a charm.  Defendant’s plate may have been crooked but it was hardly obscured. 

. . .

And that, dear reader, is the sound of probable cause disappearing into the either.  The trial court is upheld, and the charges are effectively dismissed. 

Rev up the car.  Defendant’s got a reason to celebrate.

In the end, it is fair to say that the SCOV looked askance at the Officer’s attempt to push the statute a bit too far out of line.  Nevertheless, anyone trying to read more into this decision is likely to lose their next probable cause challenge, which remains a shockingly low threshold to establish, something the SCOV reaffirms in its decision.


For now, let us say that there was nothing wrong with the law, just the attempt to control the horizontal, which brought the State to the outer limits of probable cause.  

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