Tuesday, September 10, 2013

A Crack in the Armor

State v. Betts, 2013 VT 53

Let’s just title this piece with a horrid pun, shall we?

Defendant was charged with felony possession of crack cocaine after a state trooper stopped a vehicle where Defendant was a passenger.  The trooper took Defendant to the barracks for a “consensual” strip search.  The trial court denied Defendant’s motion to suppress, and Defendant entered a conditional guilty plea.  The SCOV reverses on appeal, concluding that Defendant’s so-called “consent” was coerced by the trooper’s threat to unlawfully arrest Defendant.  Bravo, as I for one have trouble believing anyone would willingly agree to go to the barracks with a trooper for a strip search . . . . that is unless it was the plot of some Cinemax late movie where the trooper was also playing smooth jazz saxophone.     

Here’s the skinny: a confidential informant (or “CI” for short) told a state trooper that he had seen “White Steve” and a black dude with a lot of crack.  The timing was unclear, and additional details, beyond the type of car Steve was driving, were scant, but the trooper testified that the CI had provided reliable information in the past.

Roughly 13 hours later, the trooper found the vehicle Steve was driving.  Although at that time, the trooper found out that Steve’s license was suspended, he chose not to pull him over; instead, he followed the car around for two-and-three-quarters hours.  The trooper did not observe any indicia (now there’s a lawyer vocab word for you) of drug-related activity.

The trooper finally pulled over the vehicle and explained that if he didn’t get consent to search both the vehicle and the occupants, he was going to get a warrant. 

Essentially, Defendant was told he could consent to the search or he’d be getting seized while the trooper applied for a search warrant.  Some crack was found on the ground outside after Defendant was in the cruiser ready to go to the barracks, and Defendant admitted ownership.  The trial court denied a motion to suppress and Defendant entered a conditional plea.

And so we end up at the SCOV.  Defendant argues that the proposed trip to the barracks was unsupported by valid consent or probable cause, and the SCOV agrees.

The SCOV begins its analysis with the premise that, absent voluntary consent, a ride in a police car to the barracks for a strip search is the equivalent of an arrest. 

Because Defendant only gave consent based on the trooper’s threat to seize him and apply for a search warrant if he declined, the SCOV concludes that the consent was not voluntary but “a mere submission to a claim of lawful authority.”

The SCOV also concludes that the trooper did not have probable cause that would justify the detention.  One of the interesting things about Vermont criminal law is that we apply the Aguilar-Spinelli test to evaluate “whether probable cause for a warrant exists based on the hearsay testimony of a confidential informant not named by the police.”  This is in contrast to the more permissive Gates totality-of-the-circumstances test applicable under federal law.   We are among a handful of holdouts in retaining the two-pronged test.  The SCOV explains: “The first prong examines the basis for an informant’s knowledge; the second concerns whether an informant’s tip is, in fact credible.”

In this instance, the SCOV concludes that while the informant may have satisfied the first prong, he would’ve failed on the second.  The SCOV explains that a reviewing court would not have had an independent basis to independently evaluate the informant’s inherent credibility. 

The SCOV notes that the trooper’s representation that the CI had provided information leading to three separate arrests makes this a “closer call” than some previous cases.  But the SCOV reasons that in this context the circumstances fall short of what is required for an independent analysis of the informant’s credibility.   

Though the State argues that officers can rely on personal knowledge of past criminal activity, the SCOV does not give that argument much weight in this context.  The SCOV explains, “Indeed, on the basis of this vague tip, any black man who happened to suffer the misfortune of traveling with White Steve on that particular occasion might have been subjected to the threat of unfounded detention.”

And so, the trial court gets reversed and the charges against Defendant are dismissed.  We are left only to wonder if the outcome have been different had Defendant been this girl?

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