State v. Philip M. TetreaultState v. Philip M. Tetreault
Case Information
*1 NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
No. 2016-258 State of Vermont Supreme Court
On Appeal from v. Superior Court, Windham Unit,
Criminal Division Philip M. Tetreault April Term, 2017 Katherine A. Hayes, J.
David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
William W. Cobb of Law Offices of William W. Cobb, PLC, St. Johnsbury, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Dooley, J. (Ret.),
Specially Assigned
SKOGLUND, J. Defendant Philip Tetreault appeals his convictions for heroin trafficking and conspiracy to sell or deliver a regulated drug. He argues that the trial court erred in denying his motion to suppress evidence gathered from his vehicle during a traffic stop. We affirm. The trial court made the following findings in its decision denying defendant’s
motion to suppress. On October 21, 2014 at 10:04 a.m., a Vermont State Police trooper was parked facing the southbound lane of Interstate 91 in Guilford, Vermont, when he saw a vehicle travel past him at eighty miles per hour in a sixty-five-mile-per-hour zone. He pulled out to stop the vehicle. The car stopped very abruptly on the highway shoulder, and the reverse lights flashed on.
¶ 3. The trooper saw the driver’s head move to the right of his seat and disappear from view at least twice. The trooper became concerned that the driver was attempting to conceal contraband or get a weapon. He approached the vehicle on the passenger side and spoke to defendant, who was the sole occupant of the vehicle. Defendant’s hands were shaking as he handed over a plastic case containing his
registration and insurance documents. The trooper handed the case back to defendant and asked him to remove the relevant documents. As defendant did so, his hands continued to tremble. The trooper noticed a GPS unit, a cellular telephone that he believed was a TracFone, and an air freshener in the vehicle. The trooper testified that many individuals involved in drug trafficking use prepaid TracFones because they are easy to dispose of and that air fresheners are often used to mask the odor of drugs in a vehicle. The trooper asked defendant where he was headed. Defendant said he was driving
to Waterbury, Connecticut, from his home in Lowell, Vermont, to buy an engagement ring. The trooper found defendant “overly nervous for a routine traffic stop.” After checking defendant’s license status, he gave defendant a written warning and told him to slow down. Defendant’s hands were still shaking when the interaction with the trooper ended. The trooper testified that drivers who are nervous during a traffic stop usually calm down significantly by the end of the interaction, but defendant remained excessively nervous. After the stop, the trooper called a Newport City police officer who knew
defendant. The Newport officer told the trooper that about eight months earlier, a confidential source had told him that defendant was involved in selling pills and heroin, and would travel to Massachusetts or Connecticut to pick up drugs. The trooper used an Internet-based mapping program to determine that it would take approximately one hour and forty-seven minutes to travel from Brattleboro to Waterbury, Connecticut. It would take forty-five to forty-eight minutes to *3 travel from Brattleboro to Holyoke, Massachusetts, which is a known source of drugs entering Vermont. Later the same day, the trooper was parked alongside the northbound lane of
Interstate 91 in Guilford. At 12:52 p.m., he observed defendant’s vehicle travel past him. He followed defendant and paced defendant’s vehicle, determining it was traveling between seventy and seventy-five miles per hour, or five to ten miles over the speed limit. The trooper pulled defendant over. He saw defendant lean over toward the passenger side of the car. Before he stopped defendant’s car, the trooper radioed for a K-9 unit to come to the scene, as he was now suspicious that defendant was involved in drug-related activity. As the trooper approached the vehicle, he again observed the driver moving around
as if he was hiding or accessing something. Defendant was alone in the vehicle. The TracFone, air freshener, and GPS unit were still in place. The trooper again requested defendant’s documentation, and told defendant that he stopped defendant for speeding. The trooper asked if defendant had made it to Waterbury. Defendant told the trooper that he had not gone to Waterbury, but had gone to the Holyoke Mall instead. The trooper asked defendant if he had purchased the engagement ring. Defendant answered that he had not, because it was more expensive than he anticipated. While speaking to defendant, the trooper noticed what he believed to be marijuana “shake” around the center console. He did not take the suspected marijuana into evidence. At the suppression hearing, defendant introduced a photo that appeared to show signs of chewing tobacco use in the vehicle, as well as a can of chewing tobacco and a spit can. The trooper told defendant that he would write defendant another warning for
speeding, and asked if defendant would mind exiting the vehicle and coming to his cruiser while he did so. The trooper told defendant he did not have to if he did not want to. Defendant exited the vehicle, and with defendant’s consent, the trooper patted down his exterior clothing before both men sat in the front seats of the cruiser. The trooper asked defendant about his trip while writing the warning. The trooper
noted that defendant was nervous, uncertain, and had a quivering voice. Defendant identified two stores that he visited at the Holyoke Mall. He told the trooper that he had learned that his daughter was ill, so he could not go all the way to Waterbury as planned. When asked by the trooper whether he had gone to Holyoke to pick up drugs, defendant responded, “No, I swear on my daughter’s life.” The trooper asked defendant to roll up his sleeves and tip his head back so the trooper could look for signs of drug use. Defendant complied. The trooper then asked defendant, “Do you have any objections to me searching
the car? Would that be all right with you?” Defendant responded, “Yeah, you can.” The trooper said, “That’s okay?” Defendant replied, “Is there probable cause, I mean—” and the trooper said, “No.” Defendant said that he didn’t understand why the trooper wanted to search the car. The trooper told him that his story was “shaky in the beginning.” Defendant said, “I know my rights and I would prefer if you would get a warrant if you’re gonna search.” Defendant offered to open the glove box for the trooper. The trooper said he was interested in searching “the whole shooting match.” Defendant then talked about participating in the search of the car and the trooper said, “I mean me search, not us. Is that okay?” Defendant responded, “Yeah.” The trooper then presented defendant with a consent card. He told defendant that he would read it to defendant and allow defendant to read it himself, and then defendant could decide whether to allow the search. Defendant responded, “Okay.” The trooper read the entire card to defendant, then gave the card to defendant and asked him to read it, and if he agreed, to sign the card. Defendant signed the consent card without asking any questions. The card stated that defendant “freely” gave his permission to the trooper “to conduct a complete search” of the vehicle and its contents, and stated “I understand I do not have to allow this. No threats or promises have forced this consent.”
¶ 13. During this exchange, the K-9 unit requested by the trooper had arrived. The trooper and defendant exited the cruiser, and the trooper began searching defendant’s vehicle. He found a pill bottle containing marijuana and a smoking pipe. The trooper decided to have the dog sniff the vehicle. The trooper asked defendant, “You all right with us running the dog through?”
Defendant responded, “I don’t see the need.” The trooper told him, “Sometimes I miss things.” Defendant said, “I’d rather just go home. . . . Why can’t we do that?” The trooper said, “We can. I just want to make sure I didn’t miss anything. Is that okay if the dog goes through?” Defendant responded, “Yeah. Run her though.” Defendant asked if he could sit in his car, and the trooper said he could not do so while the dog was inspecting the car. Defendant then said that he thought the trooper needed a warrant for the dog to go through the car. The trooper said he did not, because it was just like the trooper going through the car. Defendant responded, “I thought it was different.” The K-9 officer had the dog sniff the car. The dog alerted at the front console area
and on a purse in the vehicle. Within the purse were 420 bags of a substance that tests indicated to be heroin. There was also some dog food in the purse. The K-9 officer testified that a drug dog’s reaction to smelling dog food is different than its reaction to illegal drugs. More heroin was found in separate bags, for a total of 14.4 grams including packaging. Defendant was arrested and charged with heroin trafficking and conspiracy to sell or deliver a regulated substance. Defendant filed a motion to suppress the evidence gathered as a result of the stop. The trial court denied the motion in a written decision. It concluded based on the above findings that: (1) defendant voluntarily exited his vehicle and was not coerced or threatened into doing so; (2) even if his exit had not been voluntary, the trooper had a reasonable suspicion of criminal activity sufficient to justify an exit order; (3) defendant’s consent to search the vehicle was voluntary; (4) defendant was not in custody for Miranda purposes when he was speaking to the *6 trooper in the cruiser; (5) defendant did not withdraw consent to search his vehicle; and (6) the search did not exceed the scope of consent.
¶ 17. Defendant filed a motion to reconsider, arguing that the court failed to address his argument that the police may not expand a traffic stop into a drug investigation without reasonable suspicion. He also argued that the dog’s alert was insufficient to establish probable cause for a further search of the vehicle because the K-9 officer testified that the dog, when alerting, could not distinguish between drugs currently in the vehicle and drugs which were previously in the vehicle, or between small and large amounts of marijuana. The court ruled that the trooper had reasonable suspicion of drug activity to expand the scope of the traffic stop. The court further held that because defendant consented to the search of his vehicle, it was irrelevant whether the dog’s alert created probable cause to search. Defendant waived his right to a jury, and the court held a trial in April 2016. The
court found defendant guilty of both charges, and imposed a sentence of two to ten years. This appeal followed. In reviewing a trial court’s denial of a motion to suppress evidence, we will uphold
the court’s factual findings unless clearly erroneous. State v. Mara, 2009 VT 96A, ¶ 6, 186 Vt.
389,
of the Vermont Constitution protect persons from unreasonable searches and seizures. U.S. Const.
amend. IV; Vt. Const. ch. I, art. 11; State v. Savva,
for speeding in both instances. He contends, however, that the trooper impermissibly expanded a traffic stop into a drug investigation and ordered to him to exit his vehicle without reasonable suspicion that a crime had been committed; subjected him to overly intrusive interrogation in the cruiser, thus rendering his consent to search the vehicle ineffective; and unlawfully continued to search his vehicle after he withdrew consent. He further argues that the trial court erred by refusing to reconsider his motion to suppress at trial and denying his motion for a new trial. We first consider defendant’s argument that the trooper lacked justification to ask
him to exit the car. The Fourth Amendment permits a police officer to order the driver of a lawfully
stopped vehicle to exit the vehicle as a matter of course; no further justification is necessary. See
Pennsylvania v. Mimms,
highway. After requesting the defendant’s license and registration and asking several questions related to the reason for the stop, the officer said, “you mind having a seat in my car while I check your license, please?” In response, the defendant exited the vehicle. At the officer’s request, the *8 defendant emptied his pockets, revealing a small packet which he admitted contained marijuana. The officer subsequently searched defendant’s car, and then his house, where several marijuana plants were found. The trial court denied the defendant’s motion to suppress the evidence, ruling that the defendant voluntarily exited the car and consented to the searches. Id. ¶¶ 2-9.
We reversed, holding that there was no evidence that the officer had a reasonable, objective basis for his exit request. Id. ¶ 21. The officer did not claim that he had a specific safety concern, or that there was anything unusual about the location, time of day, or traffic that would justify a request to exit the vehicle. He acknowledged that the defendant did not appear to be armed and dangerous. Id. There was also no evidence that the defendant was engaged in any criminal offense requiring further investigation. Id. ¶ 22.
We rejected the State’s argument that the defendant voluntarily exited the vehicle,
holding that “[t]he critical inquiry is ‘whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’” Id. ¶ 26 (quoting Florida v. Bostick, 501 U.S. 429, 436 (1991)). Our conclusion that defendant did not voluntarily exit the car was based on several factors. First, the setting was “inherently coercive” because the defendant “had already been seized by virtue of the initial motor vehicle detention and the officer’s show of authority.” Id. ¶ 28. Second, the officer asked the defendant to exit the vehicle almost immediately after he asked for his license and registration, and “[t]he latter request plainly communicated no more choice to defendant than the former.” Id. ¶ 29. Finally, the officer did not inform the defendant that he could refuse to exit the vehicle. Id. Because the exit order was not justified by safety concerns or reasonable suspicion, and the defendant did not voluntarily exit the car, we determined that the defendant’s subsequent consents to the search of his person, car and home were tainted and ineffective, and the evidence gathered ought to have been suppressed. Id. ¶ 31. The circumstances here differ significantly from those in Sprague. First, the record
supports the trial court’s conclusion that defendant voluntarily exited the vehicle. While defendant
*9
was faced with the same situation as the defendant in Sprague, a traffic stop by a police officer,
there the similarity ends. Here, the trooper’s request to exit the car did not immediately follow his
request for defendant’s license and registration, as it did in Sprague. Instead, the trooper and
defendant discussed defendant’s trip to Massachusetts and his search for an engagement ring, as
well as the possibility that defendant’s speedometer was malfunctioning. The video shows that
the trooper’s demeanor was relaxed and friendly during this discussion. The timing and tone of
the request was separated from the obligatory “request” for defendant’s license and registration.
Moreover, in this case the trooper expressly told defendant that he could refuse to
leave the vehicle, saying, “Phil, you don’t have to if you don’t want to, it’s just—it would be easier
if you came on back real quick. I’ll write you a warning again.” Defendant replied, “Okay,” and
exited the vehicle. As we explained in a previous case, “the giving of such advice supports the
conclusion that the consent was voluntary.” State v. Weisler,
noted that there was no indication defendant was engaged in any criminal offense beyond the
traffic violation. However, here, the trooper had a reasonable and objective basis to suspect that
an additional drug-related crime was being committed. See Sprague,
interaction, we look at the totality of the circumstances. State v. Manning,
the second time: (1) defendant originally told the trooper that he was traveling from his home in Lowell, Vermont, to Waterbury, Connecticut, to buy an engagement ring; (2) defendant’s return time was not consistent with his stated destination; (3) defendant admitted he was returning from Holyoke, Massachusetts, a known source of drug trafficking in Vermont; (4) both times he was pulled over, defendant reached down and out of sight toward the passenger seat, as though he were hiding something; (5) defendant acted nervous, and his voice was trembling throughout both interactions with the trooper; (6) in his car, defendant had what appeared to be a prepaid untraceable TracFone as well as an air freshener, which is often use to mask the odor of drugs; (7) a confidential informant had told a Newport police officer that defendant was involved in selling heroin and pills and would drive to Massachusetts or Connecticut to obtain them; and (8) the trooper observed what appeared to be marijuana “shake” on the center console. Viewed in isolation, some, if not all, of these factors would be insufficient to form
the basis for a reasonable suspicion of wrongdoing. However, the circumstances as a whole,
viewed objectively by a trooper with training and experience in drug interdiction, gave rise to a
reasonable suspicion that drug-related activity was occurring. See Manning,
Holyoke, Massachusetts, by itself cannot support reasonable suspicion, see State v. Alexander,
contribute to an officer’s reasonable suspicion. Manning,
car, in conjunction with other factors, also supported reasonable suspicion. See Weisler, 2011 VT
96, ¶ 40 (“Based on his initial observation of what he believed, in his experience, to be marijuana
flakes, the investigating officer had at least a reasonable suspicion of wrongdoing sufficient to
justify [the defendant’s] initial brief detention in the cruiser.”).
[1]
Defendant challenges the trial
court’s finding that while speaking to defendant during the second stop, the trooper observed small
green plant flakes around the center console that he believed to be marijuana, which he did not
take into evidence. This finding was not clearly erroneous. The trooper was trained and
experienced in identifying marijuana. He described the alleged marijuana flakes in his affidavit
of probable cause and testified regarding his observation during the suppression hearing. The court
plainly found the trooper to be credible. Although it is true that the trooper did not collect the plant
material and did not mention the marijuana flakes to defendant during their conversation, these
facts do not provide a sufficient basis for rejecting the court’s finding. See Mara, 2009 VT 96A,
*13
¶ 6; Pion v. Bean,
Newport police officer about his alleged drug activity, which the Newport officer received from
an unnamed source eight months earlier, was, by itself, insufficiently probative to support a
reasonable suspicion of wrongdoing. See Cunningham, 2008 VT 43, ¶ 22 (holding that
uncorroborated information in CAD system from unnamed sources that defendant had prior
involvement with drugs was insufficient to provide reasonable suspicion of drug activity). In
Cunningham, the information from the CAD system was the only indication of any involvement
with drugs by defendant Cunningham. As we subsequently noted in Manning, “[i]t is clear that
the officers in Cunningham . . . were acting on little more than a hunch.” 2015 VT 124, ¶ 22.
Here, on the other hand, defendant’s unusual reason for travel, actions inconsistent with his stated
itinerary, travel to and from a drug source city, excessive nervousness and furtive movements, and
the presence of marijuana and drug courier paraphernalia in the car, viewed by a trooper familiar
with drug trafficking practices, provide a sufficient basis for a reasonable suspicion of drug
activity. The information provided by the Newport officer was just part of the other factors
supporting the trooper’s reasonable suspicion that defendant was engaged in drug-related activity.
It was therefore permissible for the trooper to extend the stop to investigate this suspicion. See
State v. Winters,
investigative stop by subjecting him to overly intrusive interrogation within the cruiser, thereby
*14
rendering his subsequent consents to search the car tainted and ineffective. When an officer detains
a person based on a reasonable suspicion of criminal activity, the detention must take no longer
than necessary and “the investigative methods employed should be the least intrusive means
reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Florida
v. Royer,
cruiser video shows that approximately five minutes elapsed from the time that defendant entered the cruiser to the time that he gave consent to search his vehicle. Defendant sat in the front passenger seat of the cruiser. While the trooper wrote him a warning, defendant and the trooper talked about the engagement rings defendant had seen, his price range, his hope that his girlfriend was “the one,” his daughter, his relationship with his daughter’s mother, the possibility of traveling to Canada to look for a ring, whether one needs a passport to travel to Canada, defendant’s job, and a work-related injury. Four minutes after defendant entered the cruiser, there was the following exchange:
Trooper: Do you use any drugs at all?
Defendant: Nothing.
Trooper: Would you mind rolling up your sleeves for me?
Show me your arms? Okay. Not snorting anything?
Defendant: Nothing.
Trooper: Can you tilt your head back for me? Did you go down to Holyoke to pick up any dope?
Defendant: No, I swear on my daughter. I went down to get an
engagement ring for my girlfriend.
Trooper: Okay.
Defendant: I mean, you patted me down, I don’t use. *15 The trooper watched defendant as he rolled up his sleeves and tilted his head back, but did not lean toward defendant or touch him. This exchange took about twenty seconds. The trooper then asked if defendant would allow him to search defendant’s vehicle, and defendant consented. At this point, defendant had been detained for a total of less than eight minutes. This was not an unreasonable amount of time for the trooper to investigate his reasonable suspicion that defendant was engaged in drug-related activity. Indeed, the questioning did not measurably prolong the traffic stop for speeding. See Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”). Moreover, the trooper’s questioning about defendant’s drug use was not overly
intrusive, given that he had reason to suspect that defendant was involved in drug-related activity.
Cf. Winters,
We next consider defendant’s argument that he withdrew his consent to search the
vehicle before the drug sniffing dog was brought to the vehicle. An individual may limit or revoke
his or her consent to a warrantless search. See Florida v. Jimeno,
We find no such unequivocal act or statement of withdrawal here. Defendant’s initial reluctance to have the dog search the car was not a clear revocation of consent. See Gregoire, 425 F.3d at 881 (affirming trial court’s determination that defendant’s statements to officer conducting search that he was planning to be home and questioning legality of search were ambiguous and did not constitute withdrawal of consent); $304,980.00 in U.S. Currency, 732 F.3d at 820 (“[P]olice officers do not act unreasonably by failing to halt their search every time a consenting suspect equivocates.”). Even if defendant’s statements that he “[did]n’t see the need” and that “[he]’d rather just go home” could be construed as a revocation of consent, he subsequently renewed his consent when the trooper specifically asked him if they could run the dog through the car, and he responded that they could. For this reason, we also reject defendant’s argument that the search by the K-9
officer exceeded the scope of the consent form he signed. There was no doubt at the point that
will be found.” (quoting Schmerber v. California,
defendant renewed his consent that another officer besides the trooper would be conducting the
dog sniff. Defendant made no indication that he did not want another officer to go through his car.
In any event, many courts have held that a consent search may not “be qualified by the number of
officers allowed to search.” United States v. Rubio,
Finally, defendant claims that the trial court erred by denying his renewed motion
to suppress prior to trial without permitting him to present additional evidence, namely, that his
cell phone was not a prepaid TracFone. Defendant never mentioned any new evidence to the trial
court, either at trial or in its post-trial motion for a new trial. We accordingly decline to address
this argument on appeal. See State v. Morse, 2014 VT 84, ¶ 20, 197 Vt. 495, 106 A.3d 902
(explaining that issues not raised before trial court are waived on appeal). We note, however, that
the trial court has broad discretion in deciding whether to reopen the evidence and reconsider a
pretrial suppression motion, and we have stated that “trial court reconsideration of pretrial
suppression rulings should be the exception, not the rule.” State v. Simoneau,
Affirmed.
FOR THE COURT: Associate Justice
Notes
[1] Defendant argued below that that the 2013 enactment of 18 V.S.A. § 4230a, which makes possession of small amounts of marijuana a civil violation, means that the presence of small amounts of marijuana alone is now insufficient to support reasonable suspicion. We need not address this argument, as defendant has not briefed it on appeal. We note, however, that § 4230a(c)(2) specifically states: “This section is not intended to affect the search and seizure laws afforded to duly authorized law enforcement officers under the laws of this State.”
[2] In reaching this conclusion, we do not intend to condone the officer’s request to look up
defendant’s nose. A warrantless intrusion into an area of the body that is hidden from view
ordinarily requires a clear indication that evidence of a crime will be found in that location. See
State v. Towne,