By Andrew Delaney
I’m usually pretty good about avoiding the really long opinions. It’s mostly because I’m lazy. And truth be told, this isn’t a really long opinion, but between the majority and the dissent, it does weigh in at 40 pages. So, you know . . . bear with me.
Mr. Winters was parked at a rest area sleeping in the driver’s seat of a vehicle at 1:00 in the mornin’. A woman with a suspended license owned the car. A state trooper was checking license plates and found that out. But the trooper didn’t confront Mr. Winters at that time.
The trooper went back to his cruiser and after a little more police-database digging learned that Mr. Winters—who also had a suspended license—lived at the same address as the suspended-license lady. So, the trooper woke Mr. Winters up and asked him why he was driving a car with a suspended license. Mr. Winters admitted it was his girlfriend’s car. He said he’d been driving and hit a deer, and busted a headlight, and a Massachusetts trooper had told him to park overnight at the rest area rather than drive with one headlight. He also said his girlfriend was going to pick him up in the morning. The trooper told Mr. Winters to “rack out” and took off.
The trooper came back with another trooper about 10-15 minutes later, having learned about Mr. Winters’s drug-involvement history. The trooper intimated that Mr. Winters hadn’t been honest. There was a back-and-forth about needles and Suboxone. Mr. Winters denied current involvement in the drug trade. The trooper asked if Mr. Winters would consent to a search of the car. Mr. Winters said he just wanted to go back to sleep. There were a few if-the-dog-comes-and-hits-I’m-gonna-seize-everything threats made by the trooper. At one point, Mr. Winters reached for a knife in the passenger seat, which got him an exit order from the vehicle. Eventually, Mr. Winters reluctantly consented to a search of the vehicle and himself, which turned up a small amount of crack cocaine and associated paraphernalia.
Mr. Winters explained that he bought crack in Holyoke about once a month and smoked it for stress relief. He was eventually charged with possession of cocaine.
Before trial, Mr. Winters moved to suppress the evidence against him. He argued that he was illegally seized when the trooper woke him up the second time, with an extra trooper in tow, asked pointed questions about his drug history, and threatened the dog search. Mr. Winters argued that under the circumstances a reasonable person wouldn’t feel able to terminate the encounter, and at that point, the trooper had no reasonable and articulable suspicion of criminal activity.
The State countered with a there-wasn’t-really-a-seizure-until-like-2:00-a.m.-and-at-that-point-Mr.-Winters-admitted-a-bunch-o’-stuff argument. The State also argued that Mr. Winters’s lack of cooperation indicated that he felt free to leave.
The trial court went with the State’s version and reasoned that the driving-sans-license offense was ongoing and justified a stop so long as Mr. Winters was in the driver’s seat of the vehicle and that the trooper’s apparent intent was irrelevant. The trial court noted that had one of the traffic-offense investigations reached its conclusion, the case for suppression might be a bit stronger.
Mr. Winters enters a conditional guilty plea and takes the show on the road to the SCOV. His argument—that the DLS investigation had completed by the second encounter and there was no reasonable suspicion for a drug investigation—is the same one he made below. But the SCOV majority reaches a different conclusion than the trial court, noting that factual findings are reviewed for clear error and it can do whatever it wants with the trial court’s legal conclusions.
The majority begins with the whole Fourth-Amendment-and Article-11 protect against unreasonable searches and seizures. Generally, probable cause is required for a seizure, but in the context of automobile stops, reasonable suspicion of wrongdoing is the threshold. As long as there’s a reasonable objective basis for the stop, the officer’s subjective motivation for it is largely irrelevant.
So, pulling over a car because it has a Grateful Dead bumper sticker is a no-no, but pulling a car over because it has an expired inspection sticker (and a Grateful Dead sticker) is okay.
There’s no issue with the first encounter being a seizure. Nobody’s claiming it was. But the majority rejects the trial court’s there-was-an-ongoing-DLS-violation premise, noting that at the end of the first encounter, the trooper told Mr. Winters to “rack out.” At that point, the majority reasons, the DLS investigation was complete.
The majority notes that there’s a point where mere questioning turns into a seizure requiring an objective basis. Pointed questions about drug activity may tip that scale. The majority makes sure to point out that this is a determination made given the totality of the circumstances and not a “per se rule” as the dissent suggests.
The majority runs through a couple cases that illustrate where questioning tips over into a drug investigation and a seizure occurs. Finally reaching the merits of this case, the majority points out: “After talking initially with defendant, the trooper informed defendant that he was free to go to sleep.” This, the majority reasons, would indicate to a reasonable person that the encounter was over. But the trooper came back later with another trooper and started in with the drug questions. At this point, the majority reasons, a seizure occurred.
“The officer’s actions here—approaching and waking defendant, concluding the first interaction, and then returning with a second trooper, waking defendant again, and asking him pointed questions about criminal activity—is not the type of ‘mere questioning’” that doesn’t rise to the level of a seizure.
And so, the majority reverses and kicks it back to the trial court.
Justice Dooley—joined by Chief Justice Reiber—dissents. He feels the majority has created a bright-line rule based on “pointed questions” that no other jurisdiction in the states follows.
The dissent does not see a seizure on these facts, reasoning that the “second encounter was consensual, at least up until defendant’s disclosure that he was carrying needles, which created reasonable suspicion of criminal activity, when combined with other factors.” Even if Justice Dooley agreed with the majority’s conclusion that there was an illegal seizure, he contends that Mr. Winters waived his right to challenge the voluntariness of the search.
Justice Dooley claims that other than “pointed questions,” the majority only has two factors to support its it-was-a-seizure conclusion: “(1) that the trooper did not inform defendant that he was free to refuse to answer his questions and (2) that the second encounter was just that, a ‘second encounter.’” Justice Dooley contends that Mr. Winters never raised the free-to-refuse factor and that it’s never been a factor before in Vermont.
On the second-encounter factor, Justice Dooley essentially says, “So what?” Again, that’s never been considered in the past, and in fact, in other jurisdictions, the fact of a second encounter has led courts to conclude that a seizure didn’t occur.
Justice Dooley also takes issue with Mr. Winters’s record. He has eleven felony offenses, which Justice Dooley considers pretty relevant to why a trooper might want to ask Mr. Winters some questions. Basically, the dissent contends that this encounter became a seizure—by the majority’s reasoning—simply because the trooper asked pointed questions. “If this is a totality-of-the-circumstances decision, the totality consists of one circumstance—pointed questions.”
The dissent then critiques from the majority’s not-free-to-leave analysis, running through SCOTUS Fourth Amendment cases and arguing that the SCOV majority has just kind of made up its own thing. The dissent notes that almost all lower federal courts have rejected bright-line rules on when an encounter becomes a seizure. And while “pointed questions” about drug activity can play a part in the whether-a-seizure-has-occurred calculus, it’s never been the only factor.
The dissent points to a bunch of cases from other jurisdictions, distinguishes (at length) the Vermont and New Jersey cases relied on by the majority, and points out that “pointed questions” is an ambiguous term with no discernible concrete definition. I’d get into details, but like we noted above—I’m lazy. The takeaway—as it so often is from a dissent—is that the dissent posits that the majority is legally clueless.
The bottom line for the dissent is that there was reasonable suspicion for the second encounter and that the defendant’s own admissions justified the later seizure. Or in other words that nothing illegal occurred with the seizure because the requisite justification was there all along.
So who got it right? Vote in our fancy poll thingy!
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