VT: Pointed questions turn the stop into a de facto arrest

While a few normal questions would not be a seizure, pointed questions here became a seizure where it would be apparent to the defendant he was not free to leave and terminate the encounter. State v. Pitts, 2009 VT 51, 186 Vt. 71, 978 A.2d 14 (2009):

[*P13] Other courts applying traditional Fourth Amendment search-and-seizure law have reached similar conclusions where relatively innocuous field inquiries concerning the subject’s identity, address, or destination progress to more pointed police inquiries about drug possession or other criminal conduct suggesting that the person is the focus of a particularized police investigation into criminal activity. See, e.g., United States v. Nunley, 873 F.2d 182, 184-85 (8th Cir. 1989) (holding that consensual encounter became seizure which invalidated subsequent consent to search where police officers’ statements to the defendant that they were attempting to stop the flow of drugs indicated that the defendant was the “particular focus of a narcotics investigation”); State v. Contreras, 742 A.2d 154, 160-61 (N.J. Super. Ct. App. Div. 1999) (concluding that narcotics officers “clearly conveyed to defendants the message that the officers suspected them of criminal activity,” which escalated consensual encounter to seizure where the officers had defendants exit a train, explained that they were investigating drug trafficking, and asked defendants if they were carrying any contraband); Parker v. Commonwealth, 496 S.E.2d 47, 49, 51 (Va. 1998) (holding that, where police clearly followed the defendant and then “asked the defendant if he had any guns or drugs in his possession,” a reasonable person would not have believed that he was free to leave).

[*P14] Assessed in light of these standards and authorities, and viewing the encounter in its full factual context, we conclude that a reasonable person in Yosef’s circumstances would have concluded that he was the subject of a focused police investigation into criminal activity and was not free to disregard the officers’ questions and requests. The encounter with the police, it bears emphasizing, did not begin at Henry Street, but at an earlier time and place several miles away, where Yosef was identified and questioned by officers serving a subpoena at a suspected drug house. As the officers acknowledged, their suspicions were immediately aroused because Yosef appeared to be nervous and matched the description of an alleged accomplice in the drug-dealing operation.

[*P15] Yosef plainly would have been aware that he was followed across town by the same two officers, who immediately approached his taxi driver for permission to search for anything that Yosef might have left inside. Although the officers’ first few questions to Yosef were the kind that courts have uniformly held to be innocuous and non-confrontational, they rapidly progressed to inquiries indicating a particularized suspicion of criminal activity.