NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal 

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter 

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 

109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may 

be made before this opinion goes to press.

2015 VT 124

No. 2014-207

State of Vermont Supreme Court

On Appeal from

 v. Superior Court, Rutland Unit,

Criminal Division

Eric K. Manning May Term, 2015

Theresa S. DiMauro, J. (motion to suppress and dismiss);

Michael C. Pratt, J., Specially Assigned (final judgment)

Rosemary M. Kennedy, Rutland County State’s Attorney, Rutland, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, 

 Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. DOOLEY, J. Defendant Eric Manning appeals the decision of the Superior 

Court, Rutland Unit, Criminal Division, denying his motion to suppress evidence, including 

incriminating statements, obtained during a traffic stop. We affirm.

¶ 2. The trial court record demonstrates the following facts. At 1:01 p.m., on August 

12, 2013, a uniformed law enforcement officer driving a marked cruiser pulled into the parking 

lot of the Hannaford Supermarket in Brandon, Vermont. The officer observed a vehicle parked 

in the back lot, in the area farthest from the building, where neither patrons nor employees 

typically park. The back parking lot is known for drug activity, and law enforcement officers 

often patrol the area. The officer parked his cruiser facing the vehicle but not blocking it in. He 
2

ran a registration check on the vehicle and discovered the license of the registered owner, 

defendant, was under suspension. 

¶ 3. The officer exited the cruiser and approached the vehicle with the intention of 

verifying the identity of the individual in the driver’s seat and informing him that his license was 

suspended. As the officer approached the vehicle, he observed defendant “shuffle something 

with his right hand towards the middle of the console area.”

1

 The officer walked toward the 

passenger side of the vehicle and confirmed the name of defendant and that he was the registered 

owner of the vehicle. The officer saw a prescription bottle partially hidden under a green shirt 

between the driver and passenger seats. The officer believed the bottle may have been the item 

defendant was shuffling around as he approached the vehicle. The officer then asked defendant 

for his identification and license. Defendant pulled out his wallet, which the officer observed 

was filled with “an excessive amount of cash just shoved in his wallet and literally falling out of 

his pockets”; the bills were “scattered around, folded, [and] crunched.”2 Defendant’s hands 

were “shaking rapidly,” and he was unable to produce his identification. At this point, the 

officer asked if he could hold the prescription bottle, which defendant handed to him. The 

 

1

The officer first testified that defendant “started to shuffle something when he saw me.” 

During cross-examination, when asked if defendant had noticed him approaching the vehicle 

when he “shuffled” something in the front seat, the officer responded, “I can’t tell you if he saw 

me or not.” When asked at what point he was certain defendant saw him, the officer responded 

that it was the point he asked, “Are you Eric?” The trial court found that defendant noticed the 

officer’s approach and then began shuffling something in the console area. Defendant does not 

expressly challenge the court’s finding on appeal but does note in his brief to this Court: “[The 

officer] was not even sure if [defendant] saw him approaching. He testified that [defendant] was 

looking down at his phone texting with both hands as he walked up to the car. Shuffling under 

these circumstances does not indicate that a person is committing a drug related crime.” We do 

not read this statement as a claim that the trial court’s finding of fact is unsupported. Thus, we 

are bound by the court’s finding of fact. See V.R.A.P. 28(a)(3),(4)(A) (setting out requirements 

for appellant’s brief, including statement of “specific claims of error” and argument containing 

“issues presented, how they were preserved, and appellant’s contentions and reasons for them”).

2 Defendant disputes the court’s finding that the amount of cash was “excessive” because 

the officer testified that he did not know how much money defendant had on him. Based on the 

officer’s description of what he saw, it was not unreasonable for the court to find the amount of 

money excessive. We recognize, however, that “excessive” is a relative and vague term. In any 

event, this fact does not impact our analysis.
3

officer briefly looked at the bottle, noticed the label was “completely worn” and “faded,” and 

placed the bottle on the roof of the car. The officer then asked defendant where he had come 

from and why he was in the parking lot. Defendant said he was waiting for a friend so that he 

could give her a ride to a job interview and that he was not aware his license was suspended. 

The officer asked defendant if he would exit the vehicle and sit on the hood of the car. 

Defendant complied, and the officer returned to the cruiser and ran a warrant check on 

defendant, finding no outstanding warrants. The entire interaction up to this point occurred 

within roughly three minutes of the officer’s approach. 

¶ 4. When the officer returned to defendant’s vehicle, he asked defendant what was in 

the bottle and if defendant had a prescription. Defendant said it was anxiety medication but 

could not remember what it was called, and he gave the names of both his therapist and his 

doctor. The officer asked defendant how long he had the bottle, to which defendant responded 

that he had it for “a little while.” The officer asked “what’s in the bottle because when I shake 

the bottle there’s nothing moving, but when I look through it there’s plastic baggies in there. . . 

when I get a bottle from the doctor, they don’t individualize it, do they?” Defendant responded 

“Why don’t I just give you permission to open it.” The officer replied “You’re going to give me 

permission to open it? That would be great. What else is in the car because when I walked over 

here I know I saw you shove that bottle right in between the car seat?” Defendant responded that 

he was covering his soft drink bottle so that it would not get hot. The officer asked defendant 

additional questions about his whereabouts, his reason for being in the supermarket parking lot, 

and his criminal past. The officer eventually brought the bottle back to his cruiser, opened it, and 

found a white powdery substance later identified as cocaine. Roughly ten minutes elapsed from 

the officer’s first approach to his opening the bottle. 

¶ 5. The officer returned to the vehicle and questioned defendant further about the 

substance in the bottle: what defendant thought was in the bottle and how much he thought it 
4

contained. After roughly ten more minutes of questioning, the officer arrested defendant and 

searched him incident to the arrest. During the search, defendant admitted that in his right front 

pocket he had another prescription bottle, which he stated contained Klonopin and another 

anxiety medication. The bottle, which contained multiple types of pills and was labeled with a 

name other than defendant’s, was seized. The search also revealed more plastic bags containing 

cocaine. Defendant was transported to the Brandon Police Department where he was advised of

his Miranda rights. 

¶ 6. Defendant was charged with possession of cocaine. He moved to suppress the 

evidence obtained during the investigative detention, arguing that it was the result of an unlawful 

search and seizure that exceeded the scope of the suspended license investigation in violation of 

the Fourth Amendment to the U.S. Constitution and Chapter I, Article 11 of the Vermont 

Constitution. He also moved to suppress statements made before the officer advised him of his

Miranda rights, arguing that the questioning outside his vehicle amounted to a custodial 

interrogation. On February 27, 2014, the trial court held a motion hearing, at which it heard 

testimony of the officer. 

¶ 7. In a May 27, 2014 written order, the court denied defendant’s motion. The court 

concluded that the encounter did not amount to a seizure because it “was not so intimidating that 

a reasonable person would not feel free to leave without responding to the officer’s requests.” 

The court also concluded that defendant was not in custody, and therefore not entitled to Miranda

warnings, because the encounter occurred in broad daylight in a public parking lot, only a single 

officer was present, defendant’s vehicle was not blocked in by the cruiser, and defendant’s 

freedom of movement was not otherwise restrained. This appeal followed.

¶ 8. Defendant renews his claims on appeal. With respect to the Fourth Amendment 

and Article 11, defendant claims that he was unlawfully seized without reasonable suspicion and 

that his consent to search the prescription bottle was tainted by this unlawful seizure. With 
5

respect to Miranda, defendant claims that he was subject to a custodial interrogation without 

being advised of his constitutional rights. 

¶ 9. Before turning to defendant’s specific claims, it is important that we clarify what 

is being argued and what we are deciding in this appeal. Defendant argues that the point at 

which he was seized was when the officer ordered him out of his vehicle.

3

The State’s position 

is that this seizure was lawful because the officer had reasonable suspicion based on the presence 

of the prescription bottle and other factors, which we discuss in greater detail below. As noted 

above, however, the trial court concluded that defendant was not seized because the entire 

encounter remained consensual; as such, the court did not consider the sufficiency of the 

officer’s reasonable suspicion. While we agree with defendant, rather than with the trial court,

that he was seized upon exiting the vehicle, we believe that the officer had reasonable suspicion 

for the exit order and subsequent questioning about the prescription bottle. We therefore affirm 

the trial court but on a separate ground. See State v. Guzman, 2008 VT 116, ¶ 10, n.3, 184 Vt. 

518, 965 A.2d 544 (explaining this court can affirm on different grounds “if the record supports 

it”).

¶ 10. When reviewing the trial court’s decision on a motion to suppress, we review the 

court’s legal conclusions de novo and its factual findings for clear error. State v. Hinton, 2014 

VT 131, ¶ 8, ___ Vt. ___, 112 A.3d 770.

¶ 11. We start with defendant’s Fourth Amendment and Article 11 claims, briefly 

reciting the applicable background law. The Fourth Amendment to the U.S. Constitution and 

 

3 Defendant stated in a supplemental motion to the trial court that “he does not concede 

that his sitting in the driver’s seat of the suspected vehicle, by itself, provides reasonable and 

articulable suspicion that a crime or traffic violation is taking place.” Defendant appears to have 

abandoned this argument on appeal, and we therefore do not address it.
6

Chapter I, Article 11 of the Vermont Constitution4protect citizens against unreasonable searches 

and seizures. U.S. Const. amend. IV (providing that “[t]he right of the people to be secure in 

their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not 

be violated”); Vt. Const. ch. I, art. 11 (providing that “the people have a right to hold themselves, 

their houses, papers, and possessions, free from search or seizure”); see State v. Berard, 154 Vt. 

306, 309, 576 A.2d 118, 120 (1990) (noting that Article Eleven imports “reasonableness” 

standard of Fourth Amendment). In Terry v. Ohio, 392 U.S. 1, 27-29 (1968), the U.S. Supreme 

Court articulated an exception to the probable cause requirement for seizures that are limited in 

their scope and duration and do not rise to the level of full arrests. Such an intrusion must be 

justified by “specific and articulable facts which, taken together with rational inferences from 

those facts, reasonably warrant that intrusion,” and cannot be based on the officer’s “inchoate 

and unparticularized suspicion or ‘hunch.’ ” Id. at 21, 27; see State v. Simoneau, 2003 VT 83, 

¶ 14, 176 Vt. 15, 833 A.2d 1280 (“The officer must have more than an unparticularized suspicion 

or hunch of criminal activity, but needs considerably less than proof of wrongdoing by a 

preponderance of the evidence.”).

¶ 12. It is well established that an officer’s reasonable suspicion of a traffic violation 

can form the basis for a lawful stop,

5

State v. Lussier, 171 Vt. 19, 34, 757 A.2d 1017, 1029 

(2000), so long as the detention is temporary and lasts no longer than is “necessary to effectuate 

the purpose of the stop,” State v. Sprague, 2003 VT 20, ¶ 17, 175 Vt. 123, 824 A.2d 539. If, 

during the course of the investigative stop, an officer gathers additional information providing 

reasonable suspicion that some other criminal act is occurring, the officer may extend the 

detention to investigate that activity, State v. Cunningham, 2008 VT 43, ¶ 15, 183 Vt. 401, 954 

 

4

 With the exception of the law on exit orders, addressed below, defendant has not 

presented any argument that Article 11 provides any greater protections than the Fourth 

Amendment. We therefore consider Article 11 only in relation to the exit order.

5

 The term “stop” here is shorthand for a seizure that is limited in scope and duration.
7

A.2d 1290, and may order an individual to exit the vehicle, Sprague, 2003 VT 20, ¶ 20.

6

 “In 

determining the legality of a stop, courts do not attempt to divine the arresting officer’s actual 

subjective motivation for making the stop; rather, they consider from an objective standpoint 

whether, given all of the circumstances, the officer had a reasonable and articulable suspicion of 

wrongdoing.” Lussier, 171 Vt. at 23-24, 757 A.2d at 1020. That an officer’s true motivation for 

stopping a vehicle or approaching an individual is to investigate drug possession or other 

criminal activity has no bearing on the legality of the detention, so long as, from an objective 

standpoint, the officer had reasonable and articulable suspicion of a traffic or other violation.

¶ 13. Defendant does not contest on appeal the validity of the initial suspended license 

investigation. Rather, he claims that the officer unlawfully expanded the scope of the license 

investigation by ordering defendant out of his vehicle and questioning him about his prescription 

bottle without reasonable suspicion.

¶ 14. In determining whether an officer had reasonable suspicion to effectuate a seizure 

or extend an investigative detention, we look at the totality of the circumstances. State v. 

Dunham, 2013 VT 15, ¶ 8, 193 Vt. 378, 67 A.3d 275; see also United States v. Arvizu, 534 U.S. 

266, 273 (2002) (“[W]e have said repeatedly that [courts] must look at the totality of the 

circumstances of each case to see whether the detaining officer has a particularized and objective 

basis for suspecting legal wrongdoing.” (quotations omitted)). The totality-of-the-circumstances 

approach “allows officers to draw on their own experience and specialized training to make 

inferences from and deductions about the cumulative information available to them that might 

well elude an untrained person.” Arvizu, 523 U.S. at 273 (quotation omitted). Although each 

factor in the analysis in isolation may be consistent with innocent behavior, the factors taken 

 

6 Vermont’s law with respect to exit orders during routine traffic stops departs from the 

law under the Fourth Amendment. Sprague, 2003 VT 20, ¶ 19. We have interpreted Article 11 

of the Vermont Constitution as requiring the officer’s reasonable belief that the exit order was 

required to protect the safety of the officer or another or to investigate a suspected crime. Id. 

¶ 20. 
8

together can form the basis for reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 9 

(1989). As such, courts must avoid a “divide-and-conquer analysis” that scrutinizes each factor 

independently and accords no weight to conduct that alone is fairly innocuous. See Arvizu, 523 

U.S. at 274. Similarly, conduct that would appear ordinary in one context may appear suspicious 

in an entirely different context. Id. at 275-76 (concluding that acts of “slowing down, stiffening 

of posture, and failure to acknowledge a sighted law enforcement officer” may be 

“unremarkable” in busy urban context but “quite unusual” on remote desert highway).

¶ 15. Although we review the trial court’s conclusions with respect to reasonable 

suspicion de novo, we nonetheless consider the training and expertise of the officer in drawing 

inferences from the individual facts and circumstances. Ornelas v. United States, 517 U.S. 690, 

699 (1996) (holding that reasonable suspicion determinations should be reviewed de novo but 

emphasizing that “a reviewing court should take care . . . to give due weight to inferences drawn 

from [the] facts by . . . local law enforcement officers”). Here, the officer obtained the following 

information during the course of the suspended-license investigation: (1) defendant was sitting in 

his car in an area of a parking lot known for drug activity; (2) defendant made furtive movements 

as if shuffling an object in the front seat of the car when he saw the officer approaching; (3) the 

object defendant appeared to hide from the officer was a prescription pill bottle with a worn 

label; (4) defendant was nervous and shaking when asked for his identification; and 

(5) defendant’s wallet contained a large amount of crumpled bills.

¶ 16. Defendant is correct that none of these factors viewed in isolation could form the 

basis for reasonable suspicion, but focusing on each factor individually undercuts the totality-ofthe-circumstances analysis. Arvizu, 523 U.S. at 274-75. Looking at the circumstances as a 

whole, particularly through the lens of the officer’s experience in law enforcement, the officer 

had reasonable suspicion to believe that defendant was in possession of illegal drugs.
9

¶ 17. The officer testified that he believed the object defendant was trying to conceal 

from him was a prescription bottle—a bottle that appeared old and had a worn label. And 

although the mere presence of a prescription bottle is not itself objectively suspicious, courts 

have acknowledged that, in certain contexts, a pill bottle may add to the calculus.

7

 See, e.g., 

May v. State, 77 So. 3d 831, 835 (Fla. Dist. Ct. App. 2012) (stating that passing pill bottle 

between individuals is sufficient reasonable suspicion even if pills are not actually seen); 

Richardson v. State, 402 S.W.3d 272, 277 (Tex. Ct. App. 2013) (concluding that officer had 

reasonable suspicion based upon several factors, including defendant’s parking too close to fog 

line, nervousness, and possession of empty pill bottle); Collins v. State, 854 P.2d 688, 697-98 

(Wyo. 1993) (concluding that officer had reasonable suspicion based on several factors,

including defendant’s nervousness, his possession of pill bottle with different name, and 

presence of object hidden up his sleeve with handle sticking out). 

 

7

 In support of his argument that the presence of the prescription bottle did not provide 

reasonable suspicion for the officer to expand the scope of the investigation, defendant relies on 

several cases that consider the reasonableness of seizing contraband during a protective patdown. 

These cases are inapposite. For example, in Minnesota v. Dickerson, 508 U.S. 366 (1993), the 

U.S. Supreme Court reaffirmed that, within the permissible bounds marked by Terry, an officer 

may conduct a protective patdown—not to discover evidence of a crime—but for the limited 

purpose of determining if a suspect is armed. Id. at 373. The officer in Dickerson exceeded the 

bounds of Terry when, during a patdown, he felt a small lump in the defendant’s front pocket. 

The officer was able to identify the lump as crack cocaine only after manipulating it with his 

fingers. The Supreme Court analogized the circumstances to the “plain-view doctrine” and held 

that an officer may not seize objects felt during a protective patdown unless their incriminating 

nature is immediately apparent. Id. at 378-79.

As the Court in Dickerson noted, when conducting a legitimate Terry search of the 

interior of an automobile, an officer may seize any contraband left in plain view if the 

contraband’s incriminating character is immediately apparent. Id. at 374; see Michigan v. Long, 

463 U.S. 1032, 1049-50 (1983). Here, however, the officer never seized defendant’s prescription 

bottle; defendant voluntarily handed the bottle over to the officer and later gave the officer 

permission to open it.

Defendant appears to conflate the need for probable cause if the contraband is not in plain 

view during a Terry stop and the requirement of reasonable suspicion in questioning a defendant 

about possible contraband during an investigative detention. The issues we are resolving here 

are whether the officer had reasonable suspicion to question defendant about his pill bottle and 

whether defendant’s consent for the officer to seize and search the pill bottle was voluntary.
10

¶ 18. Moreover, the act of concealing something in the presence of a law enforcement 

officer weighs heavily in the calculus. See, e.g., United States v. Brown, 765 F.3d 278, 290 (3d 

Cir. 2014) (finding reasonable suspicion where defendant, who was parked in high-crime area, 

made furtive movements consistent with concealing firearm); State v. Deck, 994 S.W.2d 527, 

535 (Mo. 1999) (finding reasonable suspicion where defendant’s reaction to encounter with 

officer was to turn away and reach down toward passenger side of vehicle as if reaching for or 

attempting to hide something); State v. Armstrong, 659 N.E.2d 844, 848 (Ohio Ct. App. 1995) 

(recognizing that furtive movements alone do not provide reasonable suspicion but stating that 

when considered with other factors, such as officer’s experience and familiarity with area, may 

indicate attempt to conceal weapon or drugs); State v. Clink, 348 P.3d 1187, 1190 (Or. Ct. App. 

2015) (emphasizing defendant’s furtive movements, as if trying to conceal weapon, as 

contributing to reasonable suspicion).

¶ 19. One case that lends support to our conclusion here is United States v. Edmonds, 

240 F.3d 55 (D.C. Cir. 2001). In Edmonds, the D.C. Circuit affirmed the lower court’s 

conclusion that there was reasonable suspicion where the defendant having parked after hours in 

an area known for drug transactions; defendant’s “ ‘furtive gestures,’ ” as if attempting to 

conceal an item under the driver’s seat; and the fact that another man, upon observing the officer, 

fled and entered the van where defendant was seated. Id. at 58. In assessing each of the 

circumstances, the court placed significant weight on defendant’s furtive movements, stating that 

when such movement occurs in the presence of an officer it can form the basis for reasonable 

suspicion. Id. at 61. In analogizing the facts of Edmonds to those here, we note that, like the 

suspect in Edmonds, defendant was parked in an area known for drug activity. And although

defendant was not sitting in the supermarket lot after hours, he was parked in an area not 

typically used by either customers or employees. Further, the officer here personally identified 

the object he perceived defendant was attempting to conceal as a prescription bottle with a worn 
11

label. The officer’s subsequent focus on that specific bottle was reasonable in light of the 

attendant circumstances.

¶ 20. We also note that the circumstances here are distinguishable from those cases 

where we have not found reasonable suspicion. For example, in State v. Cunningham, the 

officer had little more than the defendant’s nervousness, his prior criminal record, and the fact 

that the defendant, a resident of Middlebury, could not explain why he was in Vergennes that 

day. 2008 VT 43, ¶¶ 22-26, 183 Vt. 401, 954 A.2d 1290. We explained that general 

nervousness and a prior criminal record add little weight to any reasonable-suspicion calculus, 

and we also emphasized that the defendant “was simply present—openly and in broad daylight—

on a public thoroughfare in a town about fifteen miles from his home. That he told the officer 

that there was ‘no particular reason’ he was there does not bear any weight in establishing a 

reasonable suspicion of criminal activity.” Id. ¶ 26.

¶ 21. In State v. Paro, 2012 VT 53, 192 Vt. 619, 54 A.3d 516 (mem.), we held that the 

officer lacked reasonable suspicion to stop a vehicle idling in a parking lot at night in an area that 

had experienced recent burglaries. Id. ¶ 11. In support of our conclusion, we addressed several 

earlier cases from this Court in which cars were observed overnight in areas of recent criminal 

activity or in areas where the cars were otherwise out of place. Id. ¶¶ 7-12. We stressed that in 

each of these cases, as in Paro, neither the vehicles nor the individuals were “doing anything 

illegal or inherently suspicious.” Id. ¶ 8.

¶ 22. It is clear that the officers in the Cunningham and Paro were acting on little more 

than a hunch. By contrast, the officer here observed behavior that his training and experience 

suggested was suspicious, particularly given the location of defendant’s car in an area known for

drug activity. We therefore conclude that the officer gathered enough reasonable suspicion in his 

encounter with defendant to expand the scope of the suspended-license investigation into a drug 

investigation. This reasonable suspicion permitted the officer to ask defendant to exit his vehicle 
12

and interview him about the contents of the prescription bottle. See Sprague, 2003 VT 20, ¶ 20. 

Because we conclude that the officer had reasonable suspicion and did not act unlawfully, 

defendant’s consent was not tainted. See id. ¶ 32 (stating that illegality of search taints 

defendant’s consent); State v. Zaccaro, 154 Vt. 83, 88, 574 A.2d 1256, 1259 (1990) (stating that 

consent is voluntary if not result of duress or coercion).

¶ 23. Finally, we turn to defendant’s Miranda claim. In Miranda v. Arizona, 384 U.S. 

436 (1966), the U.S. Supreme Court held that, prior to engaging in a custodial interrogation, law 

enforcement officers must advise suspects of their right to remain silent and right to have an 

attorney present. Id. at 444-45. As the Supreme Court explained, Miranda warnings are 

triggered only when a suspect is subject to a custodial interrogation—i.e., “questioning initiated 

by law enforcement officers after a person has been taken into custody or otherwise deprived of 

his freedom of action in any significant way.” Id. at 444. We previously have stated that the 

inquiry into whether an action rises to the level of a custodial interrogation is an objective one 

that is based on the totality of the circumstances. State v. Sullivan, 2013 VT 71, ¶ 28, 194 Vt. 

361, 80 A.3d 67.

¶ 24. In Sullivan, we outlined the factors identified by the U.S. Supreme Court to be 

considered in determining whether a suspect is in custody: (1) the location of the questioning; 

(2) the officer’s belief in the suspect’s guilt, if that belief is conveyed to the suspect; (3) whether 

the suspect came to the interview voluntarily; and (4) whether a reasonable person would feel 

free to leave. Id. ¶ 29. We also listed several other factors that aid our analysis:

The extent to which the suspect was confronted with evidence of 

guilt; whether and to what degree the suspect’s freedom of 

movement was restrained; whether the police used deceptive 

techniques in conducting the interview; the degree to which the 

suspect was isolated from the outside world; the duration of the 

interview; whether the police officers were armed; and the number 

of police officers during the interview.
13

Id. (alteration omitted) (quoting State v. Muntean, 2010 VT 88, ¶ 19, 189 Vt. 50, 12 A.3d 518). 

We also have emphasized that the most important factor, although not determinative, is whether 

the officer told the suspect that he or she was free to leave. Id. As we explained in Muntean, 

“[t]here is no exhaustive list of criteria that can be considered in making the custody 

determination, nor is there one particular factor that must be considered in every case.” 2010 VT 

88, ¶ 19.

¶ 25. We also have set out a number of factors for determining whether a de facto arrest 

has occurred: the amount of force used, whether a weapon was displayed, whether the defendant 

was suspected of being armed, the physical treatment of the defendant, the extent that freedom of 

movement was restrained, the duration of the stop, and the number of officers. See State v. 

Chapman, 173 Vt. 400, 403, 800 A.2d 446, 449 (2002).

¶ 26. Defendant argues that the officer should have advised him of his Miranda rights 

because when the officer “ordered [him] out of the vehicle and interrogated him about his 

prescription bottle” it amounted to a “de facto” arrest. Defendant’s description of the 

circumstances exaggerates the evidence. The trial court found that the officer neither made a

formal arrest nor restrained defendant equal to that of a formal arrest until after defendant 

responded to the officer’s questions. Defendant particularly emphasizes the exit order, which 

occurred relatively early in the interaction, before the officer opened the pill bottle. The “order” 

was phrased as a request however, which defendant honored. None of the factors outlined 

above, supra, ¶ 22-23, suggest that a de facto arrest occurred when defendant exited his vehicle. 

We cannot conclude that the officer imposed restraint of a degree equal to an arrest before the 

officer opened the bottle and found the cocaine.8

 

8

 We recognize that the officer did eventually formally arrest defendant and give 

Miranda warnings. Because defendant argues that the warnings should have been given before 

any interrogation commenced, we do not consider whether the warnings were otherwise too late.
14

¶ 27. Looking more broadly at the question of whether defendant was subjected to 

custodial interrogation, the location of the interrogation is a significant factor in the totality-ofthe-circumstances analysis, and we emphasize that the interrogation here occurred outside in 

broad daylight in a public parking lot, not in a police cruiser, State v. Sole, 2009 VT 24, ¶ 18, 

185 Vt. 504, 974 A.2d 587, at the police station, Muntean, 2010 VT 88, ¶ 21, or in any other 

confined space, State v. Brooks, 2013 VT 27, ¶ 16, 193 Vt. 461, 70 A.3d 1014 (holding cell). 

Additionally, defendant’s freedom of movement was not restrained. The officer asked defendant 

if he would sit on the hood of his car, but he did not order him to do so and made no indication 

that compliance was required. Although the officer was armed and in uniform, he was the only 

officer on the scene. Finally, the interview lasted only around ten minutes, and there is no 

evidence that the officer used any deceptive or otherwise coercive interrogation techniques.

¶ 28. Defendant places great weight on the fact that the officer never informed him that 

he was free to leave. As we discussed in Sullivan, a suspect’s freedom of movement; the fact 

that the questioning occurs in an open or public place, not isolated from the outside world; and 

the short duration of the questioning are all important considerations in determining whether a 

suspect feels free to leave. 2013 VT 71, ¶¶ 30-35. Under such circumstances, the fact that an 

officer does not specifically advise a suspect that he or she is free to leave does not automatically 

turn the questioning into a custodial interrogation. We therefore conclude that, based on the 

totality of the circumstances, defendant was not in custody and was not entitled to Miranda

warnings. The trial court did not err in denying defendant’s motion to suppress.

Affirmed.

FOR THE COURT:

Associate Justice