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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