Saturday, March 26, 2016

Unlucky Dragon

State v. Alexander, 2016 VT 19

By Elizabeth Kruska

Where do we even begin? According to at least one Yelp!Reviewer, the Lucky Dragon Chinese Restaurant in Bennington has a buffet. It is not outside the realm of possibility that someone who might not know the name of the place, casually refers to it as the Chinese Buffet, or China Buffet, or something similar. You wouldn’t expect if you were in an unfamiliar town and were looking for a gas station and asked a police officer, “Where’s the gas station?” that the police would yank you out of your car and say it was suspicious because you didn’t ask for the Shell Station. If you were in Bennington and you asked someone, perhaps a police officer, for directions to the Chinese Buffet, it would stand to reason that the police officer might direct you to the actual Chinese restaurant that has a buffet. 

Maybe you’re hungry. Maybe you want a reasonably-priced, MSG-laden scoop of General Tso’s chicken that’s been sitting in a warming tray since yesterday. Maybe it’s your grandma’s favorite and it’s her birthday and you’re going to visit her, and she doesn’t get out much so you’re going to bring her a scoop o’ buffet chicken. She’s your grandma, after all. It’s the least you can do.

Or, maybe instead, you’re a black man in a cab, and the local police department is pretty sure you’re transporting drugs. And maybe you are, but the police don’t get to just detain you because they have a hunch.

Shamel Alexander was a passenger in a taxi (legal) that went from Albany, New York to Bennington (also legal). The cab driver didn’t know where he was going (legal) and asked a Bennington detective for directions to the “China Buffet” (also legal). The detective saw Mr. Alexander riding in the passenger seat (possibly legal). The cab driver was using a GPS (legal) that was mounted to his cab’s windshield (uh oh, not legal, at least not in Vermont, anyway).

The detective had developed some intelligence that a black man who went by the name “Sizzle” traveled to Bennington with a man named Tracy and a woman named Danielle to deal drugs. When he looked in the cab, he believed the passenger was Sizzle. It wasn’t.

The detective really wanted to know what was going on. He was suspicious that someone would take a cab the 38 miles from Albany to Bennington and that the driver wouldn’t know the name of the place they were going. Up to this point, though, there wasn’t really a way to do any more investigating.

Along comes a uniformed officer, and the detective essentially tells him to find a reason to pull over the car. Easy-peasy. There’s a GPS mounted in the window, which is contrary to the statute that you can’t have stuff behind your windshield. The uniformed officer makes a stop and runs the driver and passenger’s information. He learns the passenger goes by the nickname “Snacks.”

I know what you’re thinking. You’re thinking, “two words that start with S . . . same thing!” No? You weren’t thinking that? That’s apparently what the Bennington Police Officer thought, because he used this information to haul the driver out of the car to question him about his passenger’s doings. The driver said he knew that Shamel/Snacks had taken cabs from Albany to Bennington in the past by different cab drivers, had previously been taken to the bus station, and this time asked to go to the Chinese Buffet on Main Street. Oh yeah, Lucky Dragon is on Main Street.

The officer now decided that he’d better talk to Shamel about why he was in Bennington. Shamel said his grandma lived in Bennington. The officer became suspicious, because he had lived in Bennington for a long time and didn’t know an older lady with the last name Alexander.

I can’t even with the logic here. First of all, the officer probably knows lots of people in Bennington, but probably not all of them. It is entirely possible that Grandma Snacks lives in Bennington and he doesn’t know her. Second, maybe her last name isn’t Alexander. A good friend of mine has four grandmas, none of whom have his same last name due to remarriages and an adoption. Third, what is “older” anyway? I’m going to my 20-year high school reunion this summer. Everyone there will be 38ish. Two of my classmates are grandmas and they are 38. Even if Mr. Alexander was 25 at the time of this incident, it’s possible his grandma might be as young as 40 and let’s all agree right now that 40 isn’t “older.”

And the detective thought it was weird that someone would go to a Chinese restaurant near his grandma’s house before going there. Just what? 
Shamel: Grandma, I’m coming to visit.
Grandma: I love you, sweetie and I can’t wait to see you.
Shamel: Want me to bring you anything?
Grandma: Why don’t you stop at the Chinese place and get us some lunch? You know I love that General Tso’s chicken.
No. This never happens in real life. Nope, not at all. Someone telling a loved one to stop and bring home some food doesn’t ever happen. I mean, of course this might not be true, just like how every teenager ever tells their parents they’re going to the library when really they’re going to do something else. On the other hand IT MIGHT BE TRUE BECAUSE THIS IS SOMETHING PEOPLE DO.

Anyway, the officer isn’t buying that story, and asks Shamel to get out of the car and asks to search his bags. He originally said no, and the officer radioed for a canine unit. Then he said the officer could search. The officer searched, 400-odd bags of heroin were found, Shamel was arrested, tried, convicted, and sentenced to ten years to ten years and a day in prison.

Shamel appealed, and in case you couldn’t tell from the serious side-eye treatment I’m giving this case, SCOV reversed.

SCOV didn’t even get to the problems raised by the sentence imposed because it ruled that the traffic stop was unlawfully expanded.

Police are allowed to investigate. They can stop a citizen for a short period of time to investigate something going on. However, when the reason for the initial stop is over, the police have to end the encounter. So here, although it was perfectly legal for the police officer to pull over the cab for the obstructed windshield, that’s as far as the inquiry should have gone. Neither Shamel nor the driver had any outstanding warrants, and there was nothing openly going on that was illegal. The officer should have written the cab driver a ticket, and they should have been on their merry way to the China Buffet Lucky Dragon Scoop O’ Chicken Emporium And Bus Station or whatever it’s called.

This fishing expedition was unlawful. The police don’t get to expand an ordinary traffic stop to pursue an unrelated criminal investigation. The police can have suspicions all they want about a particular person in a vehicle during a traffic stop, but if there’s no reason to keep that person, the police have to end the stop and let them go. If it becomes clear during a stop that there is criminal activity going on, then the police can investigate more. But here, all Shamel did was sit in the passenger seat of a cab.

It’s long been recognized by all sorts of courts (Supreme, Vermont Supreme, lots of other Courts Supreme) that there’s got to be more than an “inchoate and unparticularized suspicion or hunch” of wrongdoing. SCOV looked at a bunch of various factors the police used in this case to get over that hunch hurdle and concluded that pretty much all of them are normal activities of daily life. Riding in a cab, traveling between states, going to a Chinese restaurant in the baddest part of town—these are all things that people just do without it being illegal or even suspicious. 

So, the issue then becomes whether the anonymous and confidential tips the police had about “Sizzle” were sufficient. The way SCOV sees it, there need to be two things to get to the point of reasonable suspicion. First, that the person was reasonably likely to be “Sizzle.” Second, that at the time, “Sizzle” was likely to be engaged in some sort of criminal activity.

The first prong is a problem. The police knew about “Sizzle” and knew that he was a “large African-American male.” Sure, Shamel—according to the description—is a large black man. But there wasn’t any indication that Shamel, whose nickname was “Snacks” is also known as “Sizzle.” And not trying to be a huge jerk, but “Snacks” and “Sizzle” aren’t even close as words. They both start with S but that’s about it. Maybe if Shamel’s nickname was “Snizzle” or “Frizzle” it could have been an honest mistake. But the State offered no other evidence to suggest that “Snacks” and “Sizzle” was the same person. No information about hairstyle or cut, complexion, what clothes he might be wearing. SCOV goes on to list lots of other cases where vague descriptions of suspects were not sufficient.

SCOV doesn’t even get as far as the second part, which is whether it was likely the person was engaged in criminal activity, because the first part didn’t even get past being a hunch. It’s unknown whether there was sufficient information to seize “Sizzle” when and if he came to town, because there wasn’t information about whether “Sizzle” had a warrant or if, when he showed up, he’d be doing something that would rise to the level of criminal activity.

SCOV goes on to say that since the extended seizure was unlawful, so was the search of Shamel’s bag because even though he consented, consent given during an unlawful detention is invalid. Nothing happened in the meantime to remove the taint of the unlawful detention. It all should have been suppressed and the case gets reversed.

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