Our title has nothing to do with this week’s case but it is October and I’m near a red barn. And I've got this picture of Sean Connery so we’re going with it.
This week’s case is about stop thresholds, specifically for DUI. Now, if you're reasonably familiar with Vermont law, you're familiar with the idea that to make a clean stop, a police officer has to have a "reasonable suspicion of wrongdoing." Said suspicion often sounds in a traffic offense, such as speeding, crossing the fog line or center line once or more, failing to use a turn signal, or any other of many arguably "reasonable" reasons to make a traffic stop. Often, once the stop is made, the officer's nostrils flare with the scent of intoxicating liquor as the officer gazes into the bloodshot, watery eyes of the soon-to-be defendant. Or at least one imagines this is what happens if one happens to have read more than a couple DUI charging affidavits.
It's fair to say that the "reasonable suspicion" threshold is pretty low. You can't be pulled over for no reason, but as long as it's something a little better than, "Your honor, I didn't like the way he had his long hair combed and he had a Phish sticker," neither the trial court nor SCOV are likely to toss the case.
Here, Ms. Norton was driving on a paved road with only a center line—no fog lines or other markings at the edge of the pavement. An officer claimed she saw defendant’s truck weaving and the passenger tires leave the paved part of the road twice over an eighteen-second span of time. The officer made the stop on two grounds: (1) the driver was likely intoxicated; and (2) leaving the roadway is likely a traffic violation.
As one does, Ms. Norton filed a motion to dismiss. The trial court denied it, noting that the officer had significant experience and training in the detection-of-impairment field and that the officer provided "a reasonable and articulable suspicion that the operator of the vehicle was impaired."
So, Ms. Norton entered a conditional plea of guilty and asked SCOV for a reversal.
The majority declines. The majority begins with the premise that an investigatory stop is justified when there's "a reasonable and articulable suspicion of criminal activity." Here, the majority reasons that defendant's driving vis-à-vis the officer's testimony was erratic enough to justify the stop. The majority rejects defendant's observation-period-of-eighteen-seconds-is-too-quick argument, reasoning that the swiftness of the conclusion reinforces the reasonableness of the stop. File that one for later use when someone accuses you of jumping to conclusions.
Because the majority concludes that the driving was erratic enough to warrant a stop, we don't get to defendant's leaving-the-pavement-ain't-a-crime argument. And because of that, this one gets the affirmed stamp of approval from the majority.
But Justice Cohen does not see this as quite so tidy. He concludes the evidence doesn't support a driving-erratically finding, and in that same vein, reasons that the trial court's findings are clearly erroneous. Justice Cohen would reverse the trial court's denial on the motion to suppress.
Now did I mention there was cruiser video? Well. The majority notes that there is video but tightly bounds its review of the video to this question: Whether the trial court's findings about it are clearly erroneous. And that's the extent of the majority's video discussion.
Justice Cohen does not so limit his review. He explains: "The video shows defendant's car drive straight down a two-lane road for approximately sixteen seconds before the officer activates her blue lights to initiate the traffic stop." He also notes that the video contradicts the officer's testimony.
Because the video shows neither erratic driving nor any traffic violations, Justice Cohen would reverse. State v. Norton, 2025 VT 56.
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