A Little Bit for Play

by Jennifer McDonald

State v. Delaoz, 2010 VT 65.

The facts of Defendant’s unlucky arrest are as follows.  On July 13, 2007, a police officer responded to a report of a person screaming and found Defendant, and two other individuals, who admitted they were responsible for the noise.  The officer asked for the individuals’ names, to which Defendant, whose name is really Jorge Delaoz, responded with a fake name.  Unfortunately for Mr. Delaoz, the fake name was that of an individual with an extraditable warrant in Florida.  Whoops.

As the officer confirmed the warrant, Defendant dropped a dollar bill folded into a small pouch directly in front of the officer, which the officer immediately recognized as a pouch used to carry illegal drugs.  Again, Whoops.  When asked what was in this pouch, Defendant responded, “a little bit for play.”  Defendant’s remark did little to diffuse the situation.  When asked again, Defendant responded, “coke.”  One fake name and pouch of cocaine later, Defendant was arrested, handcuffed, and subsequently searched.  This search produced another bag of cocaine, marijuana, and an object in Defendant’s underwear.  When questioned about this object, Defendant responded that it was “a little more coke.”  Whoops.

Defendant was charged with felony possession of cocaine, misdemeanor possession of marijuana, and misdemeanor providing false information to a police officer.   Defendant moved to suppress all evidence and statements made on the basis that he was not apprised his Miranda rights prior to handing over the dollar bill pouch.  The trial court agreed, concluding that once the office learned of the warrant in Florida, Defendant was not free to leave.  The trial court suppressed “a little bit for play” and responses to questions about the contents of the dollar bill and his underwear: “coke” and “a little more coke.”

The trial court denied the motion to suppress the physical evidence, the cocaine and marijuana. It found that once the dollar bill pouch fell on the floor, it was in plain view, and the office had reason to believe it contained illegal drugs.  He thus has probable cause to arrest Defendant and search him incident to arrest.  The State also presented evidence at trial of a handcuff key secreted in Defendant’s shoe while at the police station.  Defendant was convicted and sentenced to four years and eleven months to five years for cocaine possession and concurrent sentences of five to six months for marijuana and eleven to twelve months for the false information charge.

On appeal, Defendant argued that the trial court (1) erred in denying his motion to suppress physical evidence; (2) erred in allowing testimony as to his possession of a handcuff key; (3) relied on impermissible information in imposing a sentence; and (4) impermissibly imposed a fixed term sentence in violation of 13 V.S.A. § 7031.

With regards to Defendant’s argument that the trial court erred in denying his motion to suppress the physical evidence, the Vermont Supreme Court agreed with the State, holding that the physical evidence was permissibly obtained on justified grounds other than the suppressed statements.  In reaching this holding, the Court distinguished the facts of this case from its precedent in State v. Peterson, which held that “physical evidence obtained in result of statements made in contravention of Miranda is excludable under Article 10 of the Vermont Constitution.”  In this case, the cocaine was not the fruit of the illegally obtained statements, since there was an independent basis for justifying the search.  Here, the Court held that the trial court correctly found that the dollar bill pouch is a common method of concealing narcotics and, therefore, when it was dropped in plain view of the officer it provided probable cause for seizure. In reaching this holding, the Court distinguished the dollar bill pouch for a plastic bag, which would not provide an independent justification for seizure.  (Note to drug dealers: take the tip and buy your containers at Price Chopper rather than Etsy.)

Upon holding that the officer was justified in seizing the pouch, the Court then reviewed whether opening the pouch was an unreasonable search.  The inquiry turned on whether there was a reasonable expectation of privacy.  The Court held that there was no reasonable expectation of privacy because the “the configuration” [of the pouch] gave away its contents.  In that sense, the dollar bill pouch holding cocaine was similar to a “pistol in a holster.”  Therefore, the officer was justified in searching the contents of the pouch.  In turn, the permissible discovery of cocaine gave the officer probable cause to arrest Defendant for drug possession and perform a search incident to arrest.  The subsequent discovery of more cocaine and marijuana were properly seized and introduced into evidence.

With regards to Defendant’s  argument that the trial court erred in allowing testimony as to his possession of a handcuff key, the Court held that it was appropriate for the trial court to allow an inference of intent from Defendant’s act of hiding a handcuff key, which provides a reasonable inference that Defendant knew his behavior was illegal. 

The Defendant next argued that the trial court judge considered information beyond the record, i.e. her prior experience as a prosecutor, to infer that Defendant was engaged in selling illegal drugs.  The Court disagreed.  The sentencing judge has broad discretion over what information may be used in fashioning a fair and just sentence.  The record indicated that the judge weighed a number of factors.  Ultimately, the trial judge found that certificates from rehabilitative programs Defendant had participated in where not enough to overcome evidence indicating that rehabilitation was not a reasonable goal of sentencing.  The Court held that the sentencing judge was justified in relying, in part, on her experience in drug-related criminal proceedings.  In other words, judges are not required to make their decisions in a vacuum.

Finally, the Court reversed and remanded the cocaine possession sentence on the grounds that it violated 13 V.S.A. § 7031’s prohibition on imposing fixed terms.  The Court has previously construed the statute as prohibiting a court from imposing a definite term of incarceration through identical minimum and maximum sentences.  Although the Court has also held that slight differences in the minimum and maximum sentence do not amount to a fixed term, the 30 day window between the maximum and minimum sentence in this case did not provide an opportunity for the offender to take advantage of the possibility of parole.  Instead, the minimum term that is over 98% of the maximum term amounted to a fixed term.

Justice Dooley a Justice Burgess dissented on this last issue.  In his dissent, Justice Dooley argued that there was no reason to address the issue, given Defendant’s failure to challenge the validity of the sentence.  Justice Burgess dissented on this issue since, in his opinion, the Court’s holding departed from statutory language and was practically unworkable.  Since the language of 13 V.S.A. § 7031 clearly states that “A sentence is not fixed as long as the maximum and minimum terms are not identical,” the fact that the difference is slight is irrelevant. 

In light of the problem with the false name he gave,  Defendant, no doubt, regrets not giving the officer a name such as David Blaine, Doug Henning, or David Copperfield, which might have given rise to the Houdini defense when the handcuff key was discovered.