State v. Henry M. Clinton-AimableState v. Henry M. Clinton-Aimable
NOTICE: This opinion is subject to motions for reargument under
On Appeal from Superior Court, Bennington Unit, Criminal Division
October Term, 2019
David A. Howard, J. (motion to suppress); David A. Barra, J. (final judgment)
David Tartter and James Pepper, Deputy State’s Attorneys, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Dooley, J. (Ret.) and Pearson, Supr. J. (Ret.), Specially Assigned
¶ 1. DOOLEY, J. (Ret.), Specially Assigned.
¶ 2. Defendant was charged with possession of cocaine following a traffic stop. Prior to trial, he moved to suppress the cocaine recovered from his vehicle on several grounds. The court found the following facts relative to his motion to suppress.
¶ 3. In July 2016, Officer Murawski of the Bennington Police Department received a tip about possible illegal drug activity. The person providing the tip was known to the officer but had not provided information in the past. The tipster said that a particular type of vehicle might be engaged in illegal drug activity and the driver would be the son of a man, named by the tipster, who police knew to have past drug involvement. The tipster said that the vehicle would be coming from Springfield, Massachusetts between 2:00 and 4:00 p.m. Officer Murawski did not believe that the information provided a sufficient basis to stop a vehicle matching the description provided but shared the information with some officers, including Officer Cole.
¶ 4. Aware of this information, Officer Cole was parked south of Bennington on Route 7 in an unmarked vehicle. He observed a vehicle, that matched the description in the tip to Officer Murawski, traveling north, pull into a gas station without signaling and then turn around and proceed south. Officer Cole activated his blue lights and followed the vehicle. The vehicle went 700 to 1000 yards before pulling over.
¶ 5. Officer Murawski was parked further north on Route 7 in a marked cruiser and drove to where Officer Cole had stopped the vehicle. When he arrived, the other vehicles were parked, and he stopped in front of defendant’s vehicle. Officer Grande also responded in an unmarked vehicle. He parked away from the others and approached on foot.
¶ 6. Officer Grande informed the others that he did not think the vehicle was in park because the brake lights were on, and this put the officers on alert to a possible safety issue because the operator could quickly drive off. All three officers drew their firearms. Officer Cole held his down at his side; Officer Murawski held his behind his back; and Officer Grande was some distance away and behind the vehicle. The weapons were not visible to the vehicle occupant. The weapons were holstered after the officers approached the car and confirmed that defendant’s vehicle was in park.
¶ 7. Defendant was the driver and sole occupant of the vehicle. Officer Cole spoke
¶ 8. Officer Murawski was at the passenger window and detected an odor of marijuana coming from the vehicle. In response to this officer’s questions about defendant’s travel, defendant reported that he was going to Albany, New York, to see his sister and was coming from Pittsfield, Massachusetts. He said he was in Bennington to see a girl but did not provide details about where the girl lived or where he was meeting her although he was asked to give those details. He did not explain why he turned around in the gas station to go south. Officer Murawski noted aerosol cans in the vehicle and that defendant was smoking. He explained in his affidavit that in his training and experience, smoking and air fresheners can be used to mask the odor of drugs and rental cars are often used to transport drugs. During defendant’s interaction with the officers, he was extremely nervous, he was not making eye contact, and his hands were shaking.
¶ 9. Officer Murawski asked defendant to voluntarily leave the vehicle, and defendant declined. Officer Murawski then ordered defendant to exit the vehicle and briefly drew his weapon when he could not see defendant’s hands. Defendant raised his hands on leaving the vehicle. He continued to be noticeably nervous. The officer told defendant not to move. Defendant surrendered a bag of 4.5 grams of marijuana after the officers expressed suspicion that defendant had drugs and stated that they smelled marijuana. The officers could not see any drugs or weapons in the car.
¶ 10. The officers asked defendant to consent to a search of his vehicle, and he declined. The officers then announced they were seizing the vehicle. They arranged for a tow truck to transport the vehicle to a storage location. With defendant’s consent, the officers retrieved some items for defendant from the vehicle. Defendant received a ticket for failing to use his turn signal when he turned off the road into the gas station lot.
¶ 11. Police obtained a search warrant for the vehicle, and drugs were found in a concealed area in the trunk. Defendant was then charged with possession of cocaine.
¶ 12. Defendant moved to suppress the drugs found in the vehicle on several bases. First, he argued that he was subject to a de facto arrest without probable cause when three officers from three different vehicles approached him with their guns drawn. Second, defendant contended that the facts and circumstances did not provide reasonable suspicion warranting an exit order from his vehicle. Third, he argued that the police lacked probable cause to seize the vehicle and to obtain a warrant to search it.
¶ 13. Following a hearing, and based on the facts set forth above, the court denied the motion to suppress. The court concluded that defendant’s failure to use a directional signal provided grounds to stop the vehicle and that the initial stop was not converted into an illegal arrest without
¶ 14. Defendant waived a jury trial, and the court held a bench trial on the charge. In a written order, the court denied defendant’s motion to reconsider the suppression motion. The court found defendant guilty beyond a reasonable doubt, and defendant appealed.
¶ 15. On appeal, defendant argues that the court erred in denying his motion to suppress. He generally reasserts the bases argued below: (1) police action during the traffic stop was so intrusive that it amounted to an illegal arrest without probable cause; (2) police lacked reasonable suspicion to justify the exit order; and (3) the seizure of the vehicle and warrant to search it were not supported by probable cause.
¶ 16. “A trial court’s decision on a motion to suppress is a mixed question of fact and law, that is, whether the factual findings supported by the record lead to the conclusion that, as a matter of law, suppression of evidence was or was not necessary.” State v. Allis, 2017 VT 96, ¶ 6, 205 Vt. 620, 178 A.3d 993 (quotation omitted). We apply a clearly erroneous standard to the trial court’s factual findings and review de novo the legal conclusions. Id.
¶ 17. Police officers may “make an investigatory stop based on a reasonable and articulable suspicion of criminal activity or of a traffic violation.” State v. Davis, 2007 VT 71, ¶ 7, 182 Vt. 573, 933 A.2d 224 (mem.) (quotation and citation omitted). Police can require an operator to exit a vehicle under
¶ 19. We conclude that the facts here did not provide probable cause to seize defendant’s vehicle based on the suspicion that it contained illicit drugs or related items. Therefore, we do not reach the questions of whether there was an illegal arrest, whether there was reasonable suspicion to order defendant to exit his vehicle, or whether the warrant was supported by probable cause.
¶ 20. Probable cause is a “fact-specific determination, turning on whether the particular circumstances establish a nexus between the crime, the suspect, and the place to be searched.” Zullo v. State, 2019 VT 1, ¶ 77, __ Vt. __, 205 A.3d 466 (quotation omitted). To determine whether probable cause exists, we apply a totality-of-the-circumstances test. Id.
¶ 21. The State relied on the following facts to support the warrantless seizure of defendant’s vehicle. There was an odor of raw marijuana coming from the vehicle. Defendant was smoking a cigarette and had aerosol cans in the car. Defendant reported he was coming from Pittsfield, Massachusetts, was on his way to Albany, New York, and had stopped in Bennington to see a girl. He did not, however, respond to questions about where the girl lived or where theywere meeting and, when he was stopped, he was traveling in the opposite direction, going away from his announced destination of Albany, New York. Defendant was extremely nervous. After defendant exited the vehicle, he gave police a clear plastic bag containing green leafy material, which the officer in his professional opinion determined was marijuana. Defendant admitted he was smoking a cigarette to mask the odor of marijuana. In addition, police claimed that in their professional experience (1) individuals trafficking narcotics keep a small amount of drugs on their person in an effort to end the investigation, (2) drug couriers often use rental cars to distance themselves from contraband found in a vehicle, (3) cigarette smoking and aerosol cans are used to mask the odor of drugs, and (4) defendant’s nervousness was more pronounced than typically displayed during public contact with law enforcement.4
¶ 23. We address initially the information provided in the tip. For three main reasons, we do not consider it as bearing on probable cause. First, the tip did not meet the standards of
¶ 24. Second, the failure to match the actual driver of the vehicle with the person who the tip identified as the driver particularly undercuts the value of the tip.
¶ 25. Finally, the tip was so vague and general that it was of limited value even if it met the requirements of
¶ 26. Therefore, we examine the remaining facts used by the State to support seizure of the vehicle. As to defendant’s smoking and the presence of air fresheners in the car, we have explained that although these items can be used to mask odors from drug use, they are also “commonplace items ubiquitously used by persons who do not use marijuana.” Zullo, 2019 VT 1, ¶ 78. Here, defendant admitted that his smoking was intended to mask the smell of the marijuana he was carrying. These items provide minimal support for the suspicion that there were additional illicit drugs in the vehicle.
¶ 27. The State also relies on the facts that defendant made an abrupt turn, that his direction of travel did not match his stated destination, and that he did not provide details about his travel plans. The relevance of defendant’s turn around in the gas station is unclear. Officer Cole had followed defendant for a short distance, but he was in an unmarked vehicle and had not turned on his flashing lights or siren before defendant turned around.
¶ 28. Moreover, defendant’s nervousness has minimal relevance to the question of whether there was probable cause to search the vehicle for illicit drugs. See Cunningham, 2008 VT 43, ¶ 24 (“The defendant’s nervousness provides only meager support for a reasonable,articulable suspicion of drug activity.“). Nervousness in police presence is a factor to be considered in the evaluation of the totality of the circumstances but, in this case, we place little weight on the officer’s observation that defendant was extremely nervous during his encounter with law enforcement. The U.S. Supreme Court has observed “that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). In that case, the Court concluded that there was reasonable suspicion sufficient to justify an investigatory stop where officers were in an area known for heavy narcotics trafficking and defendant fled when he saw police. Id.
¶ 29. Nervous behavior in the presence of police has not, however, been enough to meet the probable-cause standard. The U.S. Supreme Court held that police lacked probable cause to arrest a man based on the facts that he was nervous and paid cash for an airline ticket to New York, a “target city.” Florida v. Royer, 460 U.S. 491, 507 (1983). Justice Stevens, in analyzing the degree of suspicion to be attached to flight, acknowledged that it might indicate guilt and additionally stated:
Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence.
Wardlow, 528 U.S. at 132 (Stevens, J., concurring and dissenting). Similarly, nervous behavior in the presence of police officers could be indicative of illegal behavior but could be completely
¶ 30. This leaves the smell of marijuana and defendant’s voluntary surrender of marijuana. We recognize that other jurisdictions have held that the smell of marijuana, alone or in combination with other facts, provides probable cause to seize and search a vehicle. See, e.g., State v. Robertson, 2019 MT 99, ¶¶ 28-29, 440 P.3d 17 (holding that probable cause existed for warrant to search truck for marijuana where application stated that officer smelled marijuanacoming from truck and occupants voluntarily turned over container of marijuana and pipe). But see Wingate v. State, 819 S.E.2d 502, 504 (Ga. Ct. App. 2018) (concluding warrant not supported by probable cause where affidavit indicated that officer smelled strong odor of marijuana coming from building but did not include representation that officer who detected odor was qualified to recognize odor of marijuana).
¶ 31. Defendant contends that this case is different because defendant possessed a recreational amount of marijuana. We do not, as defendant urges, hold that recreational amounts of marijuana cannot be considered at all to evaluate probable cause to seize or search. At the time of the seizure of defendant’s vehicle, possession of small amounts of marijuana established a civil violation, not a crime. See
¶ 32. We have observed that “the odor of marijuana, detected by a trained and experienced police officer, can provide a reasonable basis to believe that marijuana is present.” State v. Guzman, 2008 VT 116, ¶ 14, 184 Vt. 518, 965 A.2d 544. This remains true. Nonetheless,the smell of marijuana alone will not always be enough to establish probable cause of criminal activity and is just one factor to be considered. Id. The weight to be given to the smell depends on “the nature and strength of the odor and other factors accompanying the odor” and “how those factors relate to the offense being investigated.” Zullo, 2019 VT 1, ¶ 82. For example, “the faint smell of burnt marijuana is far less probative as to whether a car contains marijuana than, say, an overpowering odor of fresh marijuana emanating from the trunk of a car.” Id.
¶ 33. Here, the officer’s testimony at the hearing on the motion to suppress was that he smelled raw marijuana when he stood by the vehicle at the time when defendant was still inside. After defendant exited the vehicle pursuant to the officer’s order, the officer confronted defendant
¶ 34. We recognize that the State also asserts that defendant’s voluntary surrender of the bag of marijuana to the officers was indicative of other criminal activity. On appeal, the State emphasizes Officer Murawski’s testimony at the suppression hearing that, in his professional opinion, drug dealers often possess recreational amounts of drugs on their person to seek to end police investigations. Again, the logic of this proposition is suspect. Defendant would be in a better position to avoid a search of his vehicle if he had no drugs on his person than if he had a small amount of a drug he was willing to acknowledge he possessed. This argument does notchange our conclusion that the presence of marijuana was relevant to the probable-cause determination but of little weight.
¶ 35. Overall, the State urges that probable cause did exist in this case and relies mostly on Tetreault, 2017 VT 119. In Tetreault, this Court concluded that a trooper had reasonable suspicion to believe that drug-related activity was occurring based on the following facts: defendant’s stated travel plans did not coincide with the timing of his trip; defendant was coming from a city known as a source of drug trafficking in Vermont; defendant reached down during his encounter with police, appearing to hide something; defendant acted nervous and his voice was trembling; defendant had a prepaid phone and air freshener; a confidential informant stated that defendant was involved in selling and transporting drugs; and the trooper observed marijuana in the car. Id. 30-31. Although many of the facts and circumstances in Tetreault are also present in this case, a critical difference is that the question in that case was whether there was reasonable suspicion and this case concerns whether there was probable cause to seize the vehicle. See State v. Lamb, 168 Vt. 194, 196, 720 A.2d 1101, 1102 (1998) (“The reasonable suspicion standard is less demanding than probable cause for an arrest or a search warrant.“). Moreover, in Tetreault, the basis for reasonable suspicion was supported in part on information from a confidential informant, a fact not presented here.
¶ 36. In sum, we conclude that the seizure of the vehicle defendant was driving was not supported by probable cause. The question remains whether the ensuing warrant was therefore invalid. “Evidence obtained in violation of the
The order denying defendant’s motion to suppress is reversed, his conviction is vacated, and the matter is remanded.
FOR THE COURT:
Associate Justice (Ret.), Specially Assigned
¶ 37. REIBER, C.J., concurring. Although not specifically presented or addressed, an underlying question in this appeal is the extent to which defendant’s race played a role in the decisions by police to stop and search him and his car. It is well documented that people of color are disproportionately stopped and searched by police, even in Vermont. See S. Seguino & N. Brooks, Driving While Black and Brown in Vermont iv (Jan. 9, 2017), http://www.uvm.edu/giee/pdfs/SeguinoBrooks_PoliceRace_2017.pdf [https://perma.cc/F5FR-W933] (detailing differences in how black and brown drivers are treated by police, including that “Black drivers are four times more likely to be searched, subsequent to a stop, than White drivers“); A. Thompson, Stopping the Usual Suspects: Race and the
¶ 38. Given these facts, I question whether nervous behavior exhibited by a person of color should ever be used as a factor in determining whether police have reasonable suspicion or probable cause.
Chief Justice