State v. Welch

At the suppression hearing, Trooper Vincent DiMauro testified that he and two other officers were on an unrelated, late-night investigation in Westminster, when an unnamed and unknown person approached and advised them of some suspicious activity elsewhere in the area. DiMauro said that the unidentified person had

observed an older model Chevrolet pickup truck in a driveway. The occupants were out of the vehicle walking around. He thought that that was suspicious, so he went down a ways, turned around and reversed his direction and he indicated that the vehicle was in a different driveway and the occupants were either not around or in the vehicle.

According to DiMauro, this person also saw objects in the back of the truck, though he did not state what the objects were or that he had seen anyone place the objects there. As the unidentified person was talking to the troopers, he identified the pickup truck driving by them as the same one he had observed earlier. Trooper DiMauro followed the truck for two miles onto the interstate and then stopped it, without observing any unlawful or suspicious conduct by the driver. When the trooper pulled the vehicle over, the operator stopped properly. DiMauro testified that his purpose in stopping the vehicle was to inquire about what defendant was doing going in and out of driveways.

The trial court denied the motion to suppress and explained its ruling as follows:

There are a number of facts that, combined, create an articulable and reasonable suspicion of wrongdoing. The officers testified that around midnight... an unidentified informant reported that he had seen an old pickup truck in a driveway with its occupants out walking around, and a few minutes later saw the same pickup in a different driveway with objects in its bed. The area in which the truck was seen, was an area that experiences burglaries. As the officers were talking to the informant, a pickup truck, matching the description given them by the informant, passed them, and the informant identified the truck as the one he had seen involved in the suspicious activity. The officers’ subsequent stop of the defendant was made in order to investigate what they believed to be suspicious activity. The Court finds that the officers’ suspicions of wrongdoing were based on articulable and reasonable facts and that the inferences drawn from those facts were rational.

This appeal followed.

There is no dispute that defendant was driving while under the influence and that, prior to being stopped, he had not driven in a manner to create reasonable, articulable suspicion that he was driving *636while under the influence. The sole issue on appeal is whether the police had reasonable suspicion to stop defendant’s vehicle, apart from his driving.

A reasonable and articulable suspicion of wrongdoing is necessary for a police officer to stop a motor vehicle that is being operated on the highway. State v. Emito, 144 Vt. 477, 481, 479 A.2d 169, 171 (1984); see Delaware v. Prouse, 440 U.S. 648, 663 (1979). “The level of suspicion required under the Fourth Amendment is considerably less than proof of wrongdoing by a preponderance of the evidence, United States v. Sokolow, 490 U.S. 1, 7 (1989) , but it must be more than an ‘inchoate and unparticularized suspicion or “hunch......State v. Sutpkin, 159 Vt. 9, 11, 614 A.2d 792, 793 (1992) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). As we stated in State v. Kettlewell, 149 Vt. 331, 335, 544 A.2d 591, 594 (1987), “The test is ‘whether, based upon the whole picture, [the agents] . . . could reasonably surmise that the particular vehicle they stopped was engaged in criminal activity.’” (alterations in original) (quoting United States v. Cortez, 449 U.S. 411, 421-22 (1981)).

Taking the testimony of the officer in the instant case as true, see State v. Weiss, 155 Vt. 558, 562, 587 A.2d 73, 75 (1990) , there is no support for the court’s conclusion. The officer testified that he stopped defendant to inquire about what he was doing going in and out of driveways. The unidentified informant had told the officer that he thought that it was suspicious to see the truck’s occupants out of the vehicle walking around and to see the vehicle in a different driveway when the informant turned around for a second look.

Though the court found that the area in which the truck was seen was an area that experiences burglaries, there was no evidence in the record to support this finding. Nor had there been any recent reports of criminal activity in the area. Moreover, nothing in the conduct of the driver as he was followed by the police suggested criminal activity. The informant’s statement to the police was based on speculation, not accompanied by sufficient indication of criminal activity to justify stopping defendant. Cf. State v. Siergiey, 155 Vt. 78, 81, 582 A.2d 119, 121 (1990) (citizen report of erratic driving, plus officer’s own observation of defendant driving extremely slowly, added up to reasonable articulable suspicion); State v. Schmitt, 150 Vt. 503, 507, 554 A.2d 666, 668-69 (1988) (after anonymous tip, police cruiser followed defendant’s car and observed erratic and dangerous driving, justifying stop).

While information about criminal or suspicious activity from a citizen wh'o is not a paid informant and is unconnected with the police may be presumed to be reliable, United States v. Sierra-Hernandez, 581 P.2d 760, 763 n.1 (9th Cir.), cert. denied, 439 U.S. 936 (1978)', an investigatory stop may not be based solely on “ ‘the unsupported “hunch” of an informant.’” Kettlewell, 149 Vt. at 337, 544 A.2d at 595 (quoting State v. McKenzie, 440 A.2d 1072, 1076 (Me. 1982)). The informant’s conclusion in this case that the events involving defendant were suspicious, uncorroborated by facts that would make it seem so to the objective observer, is insufficient. By the officer’s account of what he learned from the informant, the activity reported was peaceful and open. There was no sign that any structure had been broken into and no details of what goods or objects were in the truck.

In sum, defendant’s activities did not give rise to a reasonable, articulable suspicion of wrongdoing, and the court should have suppressed the evidence resulting from the stop.

Reversed and remanded.