Note: Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO S

. 2014

- 204 & 2014

- 229

FEBRU ARY TERM, 20 1 5

State of Vermont } APPEALED FROM: } } Superior Court, Chittenden Unit

,

v. } Criminal Divisio n } }
Robe r t J. Mongeon } DOCKET NO S

. 9

- 1

- 14 Cncs &

100

- 1

- 14 Cncr

Trial Judge: Samuel Hoar, Jr.

In the above

- entitled cause s , the Clerk will enter:

Defendant appeals the civil suspension of his driver’s license and his conviction for driving while under the influence (DUI), arguing that the court erred in den ying his motion to

suppress. We affirm.

The court found the following facts. On an evening in December 2013, the Colchester Police Department received a call reporting that a person had been seen walking on the Island Line causeway and appeared to be intoxicated and underdressed for the weather. Two police
officers , who were both in uniform and armed, were dispatche d to the area in separate cruisers to investigate. When the first officer arrived at the parking area closest to the bike path , he
observed a single vehicle

— defendant’s

— in the lot with its lights on and engine running , and parked facing out. The officer pulled his vehicle in next to the parked vehicle. The second
officer also arrived and parked closer to the exit of the parking lot in a position that allowed other
vehicles to pass around to enter or exit. The second officer headed toward the bike path.

The first officer approached defendant’s vehicle, tapped on the driver’s window and asked defendant to roll down the window. He engaged in conversation with defendant to determine if defendant was the individual of concern or had information regarding the individual. During the conversation, the officer observed that defendant’s speech was slurred, his eyes were watery, and there was an odor of intoxicants. When asked, defendant admitted drinking, and stated he was planning to go home in twenty minutes. The officer then asked defendant to exit the vehicle to perform field sobriety tests. The results of the tests led to defendant’s arrest for

DUI.

Defendant filed a motion to suppress, arguing that he was illegally seized when the
officer approached his vehicle in the parking lot

. The trial court concluded that the conversation
between defendant and the officer was a casual en counter

, not a seizure, and, even if there was a
seizure , it was justified under the community caretaking doctrine. Defendant ap peals.2

On appeal from a motion to suppress, we give deference to the trial court’s underlying findings of fact, but review the court’s legal conclusions de novo. State v. Lawrence , 2003 VT 68, ¶ 8, 175 Vt. 600 (mem.).

The legal question presented in thi s case is whether defendant was seized when he was approached in the parking lot. A police officer may approach and question a citizen without conducting a seizure. State v. Pitts , 2009 VT 51 , ¶ 7, 186 Vt. 71 (“ Both the United States Supreme Court and th is Court have recognized that a seizure does not occur when an officer merely approaches an individual and asks certain questions, and therefore no minimal level of suspicion of wrongdoing is necessary. ”). Similarly, officers may approach and question a p erson seated in a parked vehicle without necessarily conducting a seizure. State v. Burgess , 163 Vt. 259, 261 (1995). “The question in determining whether an encounter between a citizen and police constitutes a seizure is whether, given all of the circum stances, the encounter is so intimidating that a reasonable person would not feel free to leave without responding to the officer’s request s .” State v. Jestice , 2004 VT 65, ¶ 5 , 177 Vt. 513 (mem.) ; see Pitts , 2009 VT 51, ¶ 8 (explai ning that determining whether seizure has occurred involves objective inquiry and depends on particular facts of encounter) . This test focuses on the “interaction as a whole.”

Jestice , 2004 VT 65, ¶ 5

.

Here, the court found that the encounter between def endant and the officer was not a seizure because there was not a show of authority so intimidating that “a reasonable person would not have felt free to leave without responding.” The court emphasized that although the
officer was wearing his uniform and carrying a weapon and flashlight, he did not brandish the

weapon or impose authority over defendant. Further, h is cruiser was parked next to defendant’s

vehicle , allowing defendant easy and uninhibited opportunity to exit from the parking lot

.

Defendant contends that the court ’s analysis was erroneous because the court placed improper emphasi s on whether the police cruiser blocked defendant’s exit. Defendant points to the following facts as indicative of a seizure: two uniformed, armed officers in marke d police cruisers entered the parkin g lot; the lot was small and in a remote location; it was dark and cold; the police cars parked next to defendant and near the exit; and the first officer shone a flashlight
into defendant’s vehicle , knocked on the windo w and instructed defendant to roll down his
window.

We conclude that these facts demonstrate the initial encounter between defendant and the
officer was a casual encounter and not a seizure. The officer parked his car next to defendant’s

vehicle without blocking defendant’s exit. Further, the officer casually approached the vehicle and gestured for defendant to roll down his window. Although he was in uniform and armed, he did not brandish a weapon or make an outward show of force. He engaged defendan t in a nonconfrontational conversation regarding whether defendant had seen someone in distress; he did not question defendant about criminal conduct. Cf. Pitts , 2009 VT 51, ¶ 9 (explaining that

“ pointed questions about drug possession or other illegal activity ” may convert consensual encounter into seizure). Further, although he and his cruiser were nearby, the second officer did not approach defendant

, and his cruiser did not block defendant’s vehicle. A reasonable person

in these circumstances would not have felt compelled to comply or to conclude he was not free
to leave. Id . ¶ 8.

The facts here are distinguishable from Jestice . In that case, a uniformed officer in a cruiser encountered a couple sitting in a stopped car at a trailhead parking lot. The officer pulled
his cruiser “nose

- to

- nose” with the car, shining the headlights into the car and essentially3

blocking the exit. He then approached the car and questioned the couple about what they were doing. This Court concluded that it was a “clos e question,” but there was a seizure because the police exhibited a show of authority by parking in front of the couple’s car, shining the cruiser lights inside and bl ocking the exit. 2004 VT 65, ¶ 6. In contrast, here, the exit was not blocked by the of ficer ’s cruis er , and the officer did not shine his car lights into defendant’s vehicle. Contrary to defendant’s contention that too much emphasis is placed on whether the exit was blocked, we do not rely solely on this fact in determining that no seizure occurred, but it is a critical distinction between this case and Jestice

.

D efendant argues that two of the court’s findings are not supported by the evidence and these findings are critical to the determination of whether a seizure occurred

.  We affirm th e court’s findings “unless they are clearly erroneous” and give the court “great discretion in making factual findings because it is in the best position to assess the credibility of witnesses and the weight to be given to evidence.” State v. Young , 2010 VT 97, ¶ 23, 189 Vt. 37. First, defendant claims that the evidence does not support the court’s finding that t he officer “asked”

defendant to roll down the window ; rather, defendant claims the evidence shows that t he officer

“ instructed ” defendant

. Durin g his testimony, t he officer explained that when he approached the vehicle, the driver shut the engine off and t he officer spoke with defendant

. On cross examination, t he officer elaborated that he approached the vehicle, tapped on the window with his hand, and motioned to roll down the window. Defense counsel asked

, “So you instructed

hi m to roll down the window?” T he officer responded

, “Yes.”

The court did not err in stating t hat t he officer “asked” defendant to open the window. Although t he officer agreed that he “instructed” defendant to roll down the window, his testimony revealed that the instruction was made through a tapping on the window and a hand
motion. It was entir ely within the court’s province as factfinder to describe this gesture as a n “ask” rather than an “instruction.”

Further, w e conclude that the distinction defendant seeks to make does not affect our legal conclusion that there was no seizure . Essentially , defendant argues that an instruction

amounts to a command and therefore a seizure. Even accepting that the officer “instructed” defendant to open the window, we cannot conclude that the trial judge had to find that the officer
issued a command. Defenda nt bore the burden of proving that t he officer commanded him to open the window. State v. Nault , 2006 VT 42, ¶ 16, 180 Vt. 567 (mem.). He failed to meet that
burden. The fact that t he officer agreed that he “instructed” defendant to open the window by

t apping on the window and gesturing with his hand did not require the court to find that he commanded defendant to open the window. Again, we emphasize that t here was no use of forc e, display of a weapon, threats or blocking of exits to otherwise indicate that compliance with the request was required . See id . (listing factors used to determine if words amounted to command) ; see also State v. Sprague , 2003 VT 20 , ¶ 26, 175 Vt. 123 (explaining that determining whether request is coercive depends on whether m essage is conveyed that compliance is required)

.

De fendant also argues that the court mis represented where t he second officer was during

t he first officer ’s encounter with defendant and that this is important to show that the encounter
was a seizure because there were multiple officers involved . The court found that t he second

 Defendant also argues that the court made an oral finding at the hearing that there was a degree of restraint, and this is inconsistent with the court’s written decision. The re was no error insofar as the court did not make oral findings at the hearing. To the extent the court used the word “restraint” it was in questioning counsel re garding their legal arguments.4

officer arrived around the same time as t he first officer , parked near the exit and “then exited his

cruiser and headed to the bike path, while [t he first officer ] interacted w ith defendant.”

Defendant argues that this is contrary to the evidence , which he claims sh owed that t he second
officer was sitting in his vehicle and did not depart for the bike path until after t he first officer
communicated with defendant . The testimon y supports the court’s recitation of the facts. The
first officer testified that while he was interacting with defendant t he second officer parked and went towards the bike path. H e additional ly explained

, “I got out of the vehicle first, interacted

with [defendant], and we had determined that he may possibly not be this person that was
distressed a nd walking on the bike path, so [t he second officer ] began walking down the bike path.” This testimony is somewhat unclear as the timing of when t he second of ficer began walking on the bike path but could certainly support the trial court’s assessment that t he second
officer parked, then exited his cruiser and headed to the bike path while t he first officer
communicated with defendant

.

Further, even if we accept defendant’s portrayal of the facts that t he second officer was sitting in his vehicle while t he first officer spoke to defendant, this would not impact our analysis of whether a seizure occurred. It is the “threatening presence of several office rs,” United States
v. Mendenhall , 446 U.S. 544, 554 (1980), that may create a circumstance indicative of a seizure

, and here, under no set of facts did t he second officer contribute to a threatening presence. At most, he was seated in his cruiser in th e p arking lot. His cruiser was n ot close to defendant’s

vehicle and did not obstruct the exit from the parking lot . Further, t he second officer neither approached defendant nor interacted with him. Therefore, we conclude there was no seizure.

Because we co nclude that no seizure occurred, we do not address the parties’ arguments concerning the applicability of the community

- caretaking doctrine.

Affirmed

.

BY THE COURT:

_______________________________________ Paul L. Reiber, Chief Justice

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Harold E. Eaton, Jr., Associate Justice