State v. Philip M. Tetreault
State v. Philip M. Tetreault
Opinion
¶ 1. 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.
¶ 2. 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.
¶ 4. 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.
¶ 5. 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.
¶ 6. 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 travel from Brattleboro to Holyoke, Massachusetts, which is a known source of drugs entering Vermont.
¶ 7. 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.
¶ 8. 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.
¶ 9. 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.
¶ 10. 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.
¶ 11. 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."
¶ 12. 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.
¶ 14. 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."
¶ 15. 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.
¶ 16. 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 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.
¶ 18. 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.
¶ 19. 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,
¶ 20. Both the Fourth Amendment to the United States Constitution and Article Eleven 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
,
¶ 21. Defendant does not dispute that the trooper had reasonable suspicion to stop him for speeding in both instances. He contends, however, that the trooper impermissibly expanded a traffic stop into a drug investigation and ordered 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.
¶ 22. 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
,
¶ 23. In Sprague , the defendant was stopped for speeding while driving on the interstate 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 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.
¶ 24. 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.
¶ 25. 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
,
¶ 26. 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 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.
¶ 27. 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
,
¶ 28. This case also differs from
Sprague
in another significant respect. In
Sprague
we 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
,
¶ 29. In determining whether an officer had reasonable suspicion to expand an interaction, we look at the totality of the circumstances.
State v. Manning
,
¶ 30. Here, the trooper had the following information when he interacted with defendant 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 used 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.
¶ 31. 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
,
¶ 32. First, unusual or conflicting travel plans can give rise to reasonable suspicion. See
United States v. Dion
,
¶ 33. Further, although travel to or from a city known to be a source of drugs, in this case Holyoke, Massachusetts, by itself cannot support reasonable suspicion, see
State v. Alexander
,
¶ 34. An individual's apparent attempts to conceal something from an officer also can contribute to an officer's reasonable suspicion.
Manning
,
¶ 35. Similarly, excessive nervousness can support reasonable suspicion when coupled with other factors. See
Cunningham
,
¶ 36. We agree with the trial court that the apparent presence of marijuana in defendant's car, in conjunction with other factors, also supported reasonable suspicion. See
Weisler
,
¶ 37. Defendant correctly argues that the information provided to the trooper by the 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
,
¶ 38. Defendant next claims that the trooper impermissibly extended the bounds of an investigative stop by subjecting him to overly intrusive interrogation within the cruiser, thereby 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
,
¶ 39. We disagree that the detention in the cruiser was overly long or intrusive. The 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.
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
,
¶ 40. 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
,
¶ 41. 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
,
¶ 42. 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
,
¶ 43. 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 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
,
¶ 44. 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
,
Affirmed .
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."
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
,
Reference
- Full Case Name
- STATE of Vermont v. Philip M. TETREAULT
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- Published