Note: Decisions of a three

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

ENTRY ORDER

SUPREME COURT DOCKET NO. 2015

- 427

SEPTEMBER TERM, 20 1 6

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

,

v. } Criminal Divisio n } } Brenda Wright } } DOCKET NO S

. 846

- 7

- 15 Frcr &

70

- 7

- 15 Frcs

Trial Judge: Robert A. Mello

In the above

- entitled cause, the Clerk will enter:

Defendant appeals from the trial court’s denial of her motion to suppress and dismiss in these consolidated driving

- under

- the

- influence (DUI) and civil suspension proceedings. She argues that the court erred in concluding that the officer ha d reasonable suspicion to stop her. We
affirm.

Following a hearing on defendant’s motio n s , the trial court made the following findings. Late at night in mid

- July 2015, a police dispatcher received a 911 call from a cl erk who worked at a gas station and convenience store in St. Albans, Vermont. The clerk identified himself or herself by nam e and reported that a woman had driven to the store, was stumbling around

, and appeared to be drunk. The clerk described the woman’s vehicle, including its license plate number . The
court found that it was unclear as to whether the clerk actually saw the woman driv ing the vehicle,
either when she came to the store or when she left the store. 1 Following the 911 call, t he dispatcher put out a “be on the look

- out” alert for the vehicle.

In response, a police officer drove to the gas station in question. He arrived within a few minutes of the alert and observed a vehicle pulling out of the parking lot. The vehicle matched the
clerk’s description , including the license plate number. The officer turned on his emergency lights to stop the vehicle, and it took the operator a minute and eighteen seconds to pull over. The officer testified that this was significant to him because operators usually pull over immediately, as the
law requires . The officer stated that he was behind defendant’s vehicle for the entir e period with his lights and sirens engaged while she was traveling below the speed limit; she did not immediately pull over despite ample space to do so

. When defendant did stop, the officer identified
her as the operator of the vehicle and based on info rmation obtained during the stop, defendant was charged with DUI.

Based on its findings, the court concluded that the officer had a “reasonable and articulable suspicion of illegal activity” that justified the investigatory stop. State v. Rutter , 2011 VT 13, ¶ 8,

1 The record is silent on whether there was another person in the vehicle.2

189 Vt. 574 (mem.)

. As set forth above, the officer received a tip that defendant was intoxicated and that she had arrived in a vehicle with a particular license plate. Considering the totality of the circumstances, the court conclude d th at th e tip carried “enough indicia of reliability” for the officer

to have relied on it. State v. Kettlewell , 149 Vt. 331, 335 (1987). The clerk identified himself or herself , claimed that defendant was intoxicated based on specific observed actions

, he or she reported that defendant had come to the store in a particular car and immediately thereafter, the officer corroborated that information by observing that same vehicle pulling out of the gas station’s parking lot. Relying on our case law, the cou rt concluded that p resenting specific, predictive information about a suspect’s itinerary that is not available to the public at large is a powerful indicium of reliability and the fact that the clerk identified himself or herself further bolstered the
cal ler’s credibility. Navarette v. California , 134 S. Ct. 1683, 1689 (2014) (concluding that tip was reliable where caller provided specific identifying information about vehicle, made report immediately after incident occurred, police confirmed vehicle’s lo cation shortly thereafter , and caller used 911 emergency system, which recorded caller’s voice and provided another indicator of veracity ); State v. Lamb , 168 Vt. 194, 197 (1998) (concluding that anonymous tip was reliable where informant predicted defenda nt’s movements with specificity, predictions were verified by officer, and caller’s general identity was plainly inferable from her report).

The court rejected defendant’s assertion that the tip, standing alone, was insufficient to provide the officer wi th reasonable suspicion that she was DUI because the informant never
claimed to see her operate the vehicle and drive away from the store. Th e court found that th is argument implied that it was the informant’s knowledge that determined reasonable suspicio n when, in reality, it was the officer’ s knowledge. In this case, t he officer saw a vehicle with the license plate identified by the clerk leaving the store immediately after the 911 call. Although the officer may not have been certain that defendant was the driver, “reasonable suspicion need not rule out the possibility of innocent conduct.” Navarette , 134 S. Ct. at 16 91 (quotation omitted). The officer was not obligated to wait for defendant to engage in erratic driving before stopping
her

, particularly given the grave risk of harm posed by drunk drivers

. See Lamb , 168 Vt. at 200 (stating that courts should consider “the gravity of the risk of harm

. . . in evaluating the reasonableness of the investigatory stop”). The court reasoned that r equiring the officer to take the time to verify that defendant

— whom the officer had reasonable suspicion to believe was
intoxicated

— was actually the driver in her own vehicle “might well result in the death of an innocent user of our highways.” State v. T ucker , 878 P.2d 855, 86 4 (Kan. 1994). The court thus concluded that the officer’s stop was constitutional, and it denied the motion to suppress and dismiss. The court entered judgment for the State in the civil suspension proceedings, and
defendant enter ed a cond itional guilty plea to DUI. T hese appeals followed.

Defendant argues on appeal that the officer lacked reasonable suspicion to stop her because he could not testify that anyone saw a drunk woman get behind the wheel of her car. Defendant
maintai ns that there was no evidence to show that the clerk saw defendant drive to the store or
drive off in the identified car. According to defendant, the tip was incomplete because it did not allege an actual crime and it could not form the basis for reasonab le suspicion that a crime was being committed.

On review, we will uphold the court’s factual findings unless clearly erroneous. State v.
Simoneau , 200 3 VT 83, ¶ 14, 176 Vt. 15 (quotation omitted). We review the court’s legal conclusion as to the legali ty of the stop de novo. Id

. We agree with the trial court that the stop was justified here.3

As indicated above, a police officer may “ make an investigatory stop based on a reasonable
and articulable suspicion of criminal activity. ” Id

. The officer need s “more than an unparticularized suspicion or hunch of criminal activity, but needs considerably less than proof of wrongdoing by a preponderance of the evidence. ” Id

. Courts “must consider the totality of the circumstances in evaluating the validity of an investigatory seizure. ” Kettlewell , 149 Vt. at 335 (explaining that test is “ whether, bas ed upon the whole picture, [an officer ]

. . . could reasonably surmise that the particular vehicle [he] stopped was engaged in crimi nal activity” (quotation

omitte d))

. “ Grounds for an investigatory stop are not limited to the officer’ s own observations.
An informant’ s tip, if it carries enough indicia of r eliability, may justify a forci ble stop. ” Id

.

The trial court here found the clerk’s tip sufficiently relia ble, and we find no basis to disturb this finding. “Generally, information about criminal or suspicious activity from a citizen, who is not a paid informant and is unconnected with the police, is presumed to be reliable.” Id

. at 336.
The trial court acc urately summarized the relevant case law in finding the tip reliable, and indeed,
d efendant does not appear to chall enge the reliability of the tip on appeal. See Navarette

, 134 S. Ct. at 1689 (explaining that where informant provides specific information related to report, such as model and make of car and license plate number, caller necessarily claims eyewitness knowledge of incident, and “[t]hat basis of knowledge lends significant support to the tip’s reliability,” as does contemporaneous reporting of observed criminal activity, use of 911 system,
and police co nfirmation of vehicle’s predicted location). Instead, defendant contends that the
content of the tip did not provide the trooper with reasonable suspicion of a crime to justify an investigatory stop. See id . at 1690 (“ E ven a reliable tip will justify a n investi gative stop only if it

creates r e asonable suspicion that criminal activity may be afoot

. ” (quotation omitted)). We disagree.

In Kettlewell , we recognized that an officer is not justified in resting his suspicions on an informant’s conclusory or unsupported “hunch.” Id . at 336

- 37 ( discussing case in which caller’s description of three young people in late model van selling antique dolls, who she believed should
be “check [ ed ] out,” did not provide officer with reasonable articulable suspicion to stop vehicle).

In Kettlewell , police officers, acting on a tip, effected a seizure of a camper

. We concluded that the tipster’s statement to police that there were two Mexican men on his property and that he “ did

n o t know whether they were legal or not legal” was equivocal. Id . at 335. It provided no information that would lead the police to suspect that the men were illegal aliens; the reporter did

not even say that h e suspected that the men were illegally in the country. Id . at 339 (“What is absent is any facts or inferences indicating that these Mexicans were illegal aliens.”). We concluded that, based on the information provided, the officers could not “reasonably surmise” that the men were illegal aliens , and thus, the investigative seizure was unlawful

. Id . at 339 (internal quotation marks omitted).

We reached a contrary conclusion in State v. Boyea

, 171 Vt. 401 (2000). In that case, a police officer receive d a radio dispatch that described a particular car traveling in a particular location that was operating erratically. The dispatch was based on an anonymous tip. Within five minutes of the dispatch, the officer observed the vehicle described and stopped it. The defendant was subsequently arrested for DUI. We concluded that the officer had reasonable suspicion to stop the defendant’s vehicle. We explained that the informant had “reported a vehicle operating erratically; provided a description of the mak e, model and color of the subject vehicle, as well as the additional specific information that it had New York plates; identified the vehicle’s current location; and reported the direction in which it was traveling.” Id

. at 410. The officer was able to

c onfirm the accuracy of the reported location within minutes, “thus supporting the informant’s credibility and the reasonable inference that the caller had per sonally observed the vehicle. The4

information that the vehicle was acting “erratically” equally s upported a reasonable inference that the driver might be intoxicated or otherwise impaired.” Id . We emphasized the grave risk posed by drunk drivers , and concluded that “[b]alancing the public’s interest in safety against the relatively minimal intrusion posed by a brief investigative detention, the scale of justice in this case must favor the stop; a reasonable officer could not have pursued any other prudent course.”

Id . (citation omitted).

Defendant contends that the tip here was like Kettlewell and other cases where courts have concluded that the tip failed to allege that a crime had been committed. We disagree. The officer
here testified that he received word from central dispatch that a store clerk at a particular gas station had called to repor t “that a female was in the store and that she had driven to the store and appeared
to be drunk.” The clerk provided the dispatcher with defendant’s location and license plate
number

, supporting the notion that he had witnessed her exiting the car. The i nformation provided
to the officer described a crime

— defendant had driven to the gas station in a particular car while intoxicated. When the officer saw the vehicle in question within several minutes of the alert, it was reasonable for him to presume that defendant, who had driven to the store while possibly
intoxicated , was now driving her car from the store while intox ic ated

. As the trial court found, t he reasonableness of the stop was further enhanced by “the gravity of the risk of harm.” Id

. (“We have consistently recognized the serious threat posed to public safety by the frequency with which individuals, while under the influence of intoxicating liquor, continue to operate motor vehicles on the public highways.” (quotation omitted) )

. As in Boyea , the pub lic interest in safety outweighed the relatively minimal intrusion here , and the officer acted reasonably in stopping the
vehicle

. Id .; see also Lamb , 168 Vt. at 199 (“The potential risk of harm to the defendant and the public is widely acknowled ged to be a critical factor in assessing the reasonableness of an investigatory stop.”).

None of defendant’s arguments persuade us otherwise

. The State did not need to establish the clerk actually saw defendant drive to the store, just as we have not re quired it to show that an anonymous tipster actually saw the “erratic” driving that he or she reported to police. The question

is what information was relayed to the officer and whether that report should be deemed reliable.

See Navarette , 134 S. Ct. at 1688 (recognizing that “ anonymous tip alone seldom demonstrates
the informant’s basis of knowledge or veracity

. . . because ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations, and an anonymous tipster’s veracity is by hypothesis largely unknown, and unknowable” ; question is whether tip “can demonstrate sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop” (quotations omitted) ). The tip here was deemed r eliable

, and the tip

— defendant drove to the station and appeared intoxicated

— provided sufficient information to support the conclusion that a crime had been committed. See Kettlewell , 149 Vt. at 33 4 (“A police officer may make a brief investig atory stop of a suspect based on less than probable cause to believe that the suspect has committed or is about to commit a crime, as long as the stop is less
intrusive than a full

- blown arrest and the investigating officer, based on objective facts and
ci rcumstances, reasonably believes that the suspect is, or is about to be, engaged in criminal activity.” (citation omitted) ).

The record does not support defendant’s assertion that the tip alleged merely “drunk walking” or that the trial court found that “any possible connection between the tip and the car that [the officer] pulled over was ‘unknown.’ ” The tip plainly connected defendant to driving the
identified vehicle. The car was stopped based on the tip and within minutes of the tip , and we

agree w ith the trial court that , given the gravity of the risk, the officer acted reasonably in stopping the vehicle rather than taking time to verify that defendant, whom the officer had reasonable5

suspicion to believe was intoxicated, was actually the driver in her own vehicle. See Navarette

, 134 S. Ct. at 1691

- 92 (“Once reasonable suspicion of drunk driving arises, the reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. This would be a particularly inappropriate context to depart from that settled rule, because allowing a drunk driver a second chance for dangerous conduct could have disastrous consequences.” (quotations and citations omitted) ). Based on the totality of the
ci rcumstances, t he officer was justified in c onducting an investigatory stop, and the court did not err in denying defendant’s motion to suppress

.

Affirmed

.

BY THE COURT:

_______________________________________ Paul L. Reiber, Chief Justic e

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Beth Robinson, Associate Justice