Crime and Justice

SCOV Law Blog: Drug conviction appeal argues ‘reasonable suspicion’ lacking

Editor’s note: This piece from the SCOV Law Blog is by SCOV Law editor Andrew Delaney.

State v. Tetreault, 2017 VT 119

It was a dark and stormy night.

Well, actually, it was around 10 in the morning.

Philip Tetreault got pulled over for doing 80 on the highway near our southern border. The trooper who made the stop testified that the driver stopped abruptly and the reverse lights flashed on. Then the driver’s head disappeared from view at least twice as the trooper was approaching the vehicle. The trooper figured the driver was trying to hide something or getting a weapon.

When the driver handed over the registration and insurance, his hands were shaking. The trooper noticed a GPS unit, a cellphone the trooper thought was a TracFone, and an air freshener. The trooper testified that drug traffickers use TracFones because they’re easy to get rid of and air fresheners are used to mask drug odors. As a sometimes-criminal-defense attorney, I’m having a hard time avoiding sarcasm right now. Just saying.

When the trooper asked where Tetreault was headed, Tetreault said he was driving to Waterbury, Connecticut, from his home in Lowell, Vermont, to buy an engagement ring. Tetreault’s hands were still shaking when the interaction ended and the trooper thought that was strange because most people relax by the end of the conversation.

After the stop, the trooper called a Newport City police officer who knew Tetreault. The Newport officer said that a confidential source had told him that Tetreault was involved in selling drugs and would get them from Massachusetts or Connecticut. The trooper did some internet-mapping research and determined it would take almost two hours to get to Waterbury, Connecticut, from Brattleboro but only 45 minutes or so to get to Holyoke, Massachusetts, “which is a known source of drugs entering Vermont.”

So, a few hours later (just under three), the trooper saw Tetreault’s vehicle again, and started following. He paced Tetreault’s vehicle, figured it was in the 70-75 range and pulled him over, but not before radioing in for a K-9 unit.

Tetreault was again moving around as the trooper approached the car. He was alone in the vehicle. The TracFone, air freshener, and GPS unit were still in place. The trooper and Tetreault again did the license-insurance-registration dance. When the trooper asked whether Tetreault had made it to Waterbury, Tetreault said no, he had gone to the Holyoke Mall instead. He hadn’t purchased the engagement ring because it was too expensive. During the stop, the trooper observed what he believed to be marijuana “shake” around the center console but didn’t take it into evidence. At the suppression hearing, Tetreault introduced a photo of chewing-tobacco-related activity in the car.

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The trooper then asked Tetreault if he would mind sitting in the cruiser while the trooper wrote another warning. Tetreault agreed. This is the part of the movie where all the criminal-defense attorneys in the audience are screaming, “No! Don’t do it! He’s gonna arrest you!”

The trooper and Tetreault had a conversation where Tetreault bargained with the trooper about whether the trooper could search the car. When the trooper asked Tetreault whether he’d gone to Holyoke to pick up drugs, Tetreault responded: “No, I swear on my daughter’s life.”

Long story short, Tetreault signed a consent-to-search card, despite a fair amount of ambiguity on whether he was OK with the search. The trooper searched the car and found a pill bottle with some marijuana and a pipe. The dog showed up and the trooper decided to have the dog sniff the car. Again, Tetreault objected but not strenuously and eventually said it was fine for the dog to sniff. I would imagine that Tetreault’s “fine” was the same kind of “fine” my wife uses when “nothing’s wrong.”

Sure, enough, the dog alerted and the trooper found a lot of heroin in a purse. There was also some dog food in the purse. At the suppression hearing, the trooper testified that a food alert is different than a drug alert. Tetreault was “arrested and charged with heroin trafficking and conspiracy to sell or deliver a regulated substance.”

Tetreault filed a motion to suppress. The trial court denied it. Based on the above facts and referenced testimony, the trial court concluded:

(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.

Tetreault filed a motion to reconsider, based on the trooper’s testimony that the alerts couldn’t distinguish between drugs currently in the vehicle and drugs which were previously in the vehicle, or between small and large amounts of marijuana. The trial court brushed that aside, noting that there was consent to search, so whether the dog’s alert created probable cause to search was irrelevant.

Tetreault waived a jury trial, and the court found him guilty of both charges. Tetreault got a two-to-10-year sentence. 

Tetreault appeals.

On review, SCOV upholds the factual findings unless clearly erroneous. The conclusions of law, however, get the full monty.

If you’re a criminal-defense lawyer and you’re looking for a good standard-of-review paragraph for  your next motion to suppress, try ¶ 20 of this opinion.

Most of you know by now that a traffic stop is a seizure and must be supported by reasonable suspicion of wrongdoing. A traffic stop should take no longer than necessary. A law-enforcement officer needs additional reasonable suspicion of wrongdoing to expand a traffic stop.

Here, speeding gets us past the first hurdle. Tetreault argues, however, that the exit order wasn’t supported and his consent wasn’t really effective because it was the product of coercion.

While an exit order does need sufficient support, SCOV reasons — as did the trial court — that Tetreault’s exit from his vehicle was voluntary. The trooper specifically told him that he didn’t have to exit the vehicle. SCOV concludes that “a reasonable person in defendant’s circumstances would have felt free to refuse the officer’s request when the officer told him he did not have to agree to get out of his car, making his decision to exit the car voluntary.”

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SCOV also notes that there was some indication of drug-related activity that distinguishes this case from unwarranted-expansion-of-a-stop cases.

Here, Tetreault told different stories about where he was going and had gone. He was coming from a drug hotspot on his way back. He was moving around like he was hiding stuff during both stops. He was nervous and his voice was trembling during both stops. He had an (allegedly) untraceable TracFone and an air freshener. A CI had said Tetreault was involved in trafficking. And the trooper saw what he believed to be marijuana shake on the center console. If you add all that together, SCOV opines, the trooper had reasonable suspicion to expand the investigation beyond the confines of a warning for speeding.

SCOV does concede that if you look at many of the above factors in isolation, most would not rise to the level of support needed. Because this is a totality-of-the-circumstances test, however, all the factors combined move the ball down the field.

SCOV goes through each factor and explains generally how each can contribute to reasonable suspicion of criminal activity. In case you’re wondering, even the suspected marijuana shake factors in because this is a 2017 case based on a 2014 stop and marijuana was more illegal back then, kids. (It still factors in these days, though it gets the proverbial grain of salt now — see this post, for example.)

SCOV also notes that the CI “tip” would not hold up on its own. Again, however, in the totality of the circumstances here, the tip coupled with all the other stuff adds weight to the “reasonable suspicion” side of the scale.

Tetreault also argues that his time in the cruiser was overly long and intrusive and that rendered his consent involuntary. SCOV disagrees. SCOV notes that there was about four minutes in the cruiser while the trooper and Tetreault discussed “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.” Then things got a little more intense when the trooper asked about dope and to see Tetreault’s arms (for track marks presumably) and up Tetreault’s nose. All this took a total of less than eight minutes. 

SCOV reasons: “This was not an unreasonable amount of time for the trooper to investigate his reasonable suspicion that defendant was engaged in drug-related activity.” SCOV also reasons that “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.” And so, SCOV concludes that Tetreault’s consents weren’t tainted by his time in the cruiser.

Tetreault also argues that he withdrew his consent when it came to the dog sniff. And while consent may be withdrawn, it must be done unequivocally. Here, SCOV reasons that defendant’s revocation of his consent, if any, was decidedly equivocal. In fact, he ultimately consented to the dog sniff. So that’s that.

Finally, Tetreault argues that the trial court screwed up when it denied his pretrial renewed motion to suppress without letting him present new evidence — specifically that the cellphone was not a TracFone or any type of prepaid phone. SCOV doesn’t take this up, however, because Tetreault never mentioned “new evidence” below, and that means the argument gets waived.

This one gets affirmed.

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