The presence of individuals who appear to be LGBT—whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason—should not trigger any special scrutiny by a police officer.
Police may, of course, approach a person, and make inquiries, but even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, that alone does not constitute grounds for the person to be arrested. A police officer may generally only stop a person briefly for purposes of investigation if they have “reasonable suspicion” that a crime has been committed or is about to be committed (State v. Schmitt, 150 Vt. 503, 507 (1988); State v. Phillips, 140 Vt. 210, 215 (1981) (police can make brief investigatory stop based on reasonable suspicion to ask a few questions, but further detention must be based on consent or probable cause); Terry v. Ohio, 392 U.S. 1, 16 (1968)). In addition, in some circumstances, police officers without reasonable suspicion of criminal activity are permitted to intrude on a person’s privacy to carry out “community care-taking” functions, such as aiding people in need of assistance (State v. Marcello, 157 Vt. 657, 658 (1991)). These intrusions must be objectively reasonable and based on specific articulable facts (State v. Burgess, 163 Vt. 259, 262 (1995)).
An arrest can only occur upon “probable cause” that a crime has been committed (Vt. R. Crim. P. 3(a)). When an encounter with the police becomes too intrusive to qualify as an investigatory stop, as described above, the encounter may be deemed a full scale arrest and must be justified by probable cause (State v. Chapman, 800 A.2d 446, 449 (Vt. 2002)).
