Let Them Eat Cake

I like cake.
State v. Dubaniewicz

I like cake. I’m one of those people who just likes cake. My wedding cake was a wonderful, delicious chocolate cake and it was far too large (and I don’t care). I am the kind of person who would fully understand crossing state lines to eat a piece of cake. 

That is why I have a lot of love in my heart for this particular case. Not only is it a fine piece of work about criminal procedure, but it involves a little bit of a story about cake.

Our defendant here, Nicole Dubaniewicz, was traveling south on I-91 in Guilford. Quick smidgen of info: Guilford touches Massachusetts. I tend to think it would be fair to say if someone was in or around Guilford, or lived in Guilford, they might go to Massachusetts for various reasons. I, for one, live not too far from New Hampshire. I go to New Hampshire to buy groceries and to go to the doctor. My next door neighbor works in New Hampshire. None of this is suspicious.

Here’s the problem in this case. Nicole was speeding – something on the order of 83 miles per hour. This seems fast enough to get pulled over, which is exactly what happened. Nicole was in the car along with another person called J.S. The trooper observed them both to be pale and withdrawn, and wearing heavy winter hats and coats. It was December, but since this involves a criminal case, that’s probably suspicious for no obvious reason. The hats and coats, I mean, not that it was December. December isn’t inherently suspicious as far as I know. Anyway, the trooper believed Nicole and J.S. were dope sick, and thus concluded they were probably on their way somewhere in Massachusetts to buy and use heroin.

The trooper talked to them a little bit, and Nicole told the trooper they were heading to the Big Y grocery store because they like the cakes that store sells. This is my jam right here. Because, you see, where they got stopped was less than 20 minutes away from the nearest Big Y grocery store. A quick search of the googles tells me that this particular store has a bakery and makes specialty cakes. See, they might have been dope sick, and they might have been going to buy heroin, they might have been going to buy delicious specialty cake 20 minutes away, or they could have been doing all three. These things are not mutually exclusive.

The trooper wrote them a warning and let them go, and then got on the blowerlike a gossipy junior high mean girlwith a couple law enforcement officers and found out the following dish
·     Nicole and J.S. knew each other (Is this an actual fact? Of course they know each other; if they didn’t and it was a kidnapping, this becomes a very different story.)
·     The officer on the phone interviewed Nicole the prior July (unclear if this was July that immediately preceded this December or the one before that) and she said she was addicted to heroin.
·     There were rumors that J.S. was involved in heroin distribution. Not this kind of Rumours, this kind of rumors.
·     There was also a rumor (again, not the Fleetwood Mac kind) that J.S. had been charged with some sort of heroin case in Newport, New Hampshire, but nobody could verify this.

So, yeah. Rumors.

The trooper did a little calculating in his head based on where they were, how far the nearest Big Y store was, barometric pressure, whether Mercury was in retrograde, and prevailing wind speeds, and determined that this car was probably going to be heading back northbound at or around a certain time. And what do you know? Right around the time the trooper estimated, the car carrying Nicole and J.S. headed back north on I-91, this time going 73 miles per hour and maybe following the car in front of it a little too closely.

The trooper pulls over the car again. This time Nicole and J.S. seem pretty alert and they’ve taken off those suspicious winter coats. The trooper sees some track marks on Nicole’s hands. Now he thinks he might be on to something, so he asks Nicole to get out of the car. She walks around the car to the back and seems …. Fine. She didn’t slur her words or seem to have any other outward physical signs that would indicate she was under the influence of any sort of substance. As a result, he did not have her perform the field sobriety exercises that are normally done in a DUI case. They then sat in his cruiser and talked, and the trooper really didn’t think she was impaired.

They talked about her day. She revealed she worked at a school but had called in sick that day due to a problem with a broken tooth. She said she lived with J.S. She also said Big Y didn’t have the cake she was seeking. All this, plus his observations, led the trooper to think he ought to extend his stop, and call for a canine to do a sniff of the car.

So, they sat around until a dog showed up, who alerted to the presence of drugs in the car. I’d like to point out that it took 40 minutes for the dog to get there, which is a) probably too long, constitutionally-speaking, and b) enough time to bake a small chocolate cake. Just sayin’. Eventually the trunk gets opened and police find about 200 bags of heroin. The suspected heroin got seized and sent off to the lab for testing, and came back positive for heroin.

We’re here not for cake (although I wish we were), but because Nicole and J.S. both filed motions to suppress the search of the car. That got denied at the trial court level. Then Nicole went to trial and was convicted, which is how we end up with this appeal. 

Not going to keep you in suspense much longer. SCOV reversed.

Here’s the scoop. When we’re looking at a motion to suppress on appeal, the court has to first look at the facts, and then look at the law. If the trial court sufficiently found facts based on evidence before it, then the court moves on to review conclusions of law.

Also, when we’re talking about suppression issues in criminal cases, we really have to go in tiny incremental steps, because each thing that happens may be of constitutional importance. Can a trooper stop a car for speeding? Yes. That’s ok. In this instance, was it permissible for the trooper to ask Nicole to get out of the car to investigate further about impairment? That was okay, too, because she appeared much different than she did when he saw her earlier. Also, she had track marks on her hands, which seemed consistent with drug use. So maybe she had just used some heroin and was under the influence of it while she was driving. The trooper, and the trial court, found that the story about going to get cake was a flimsy cover story, and that probably Nicole and J.S. went to get and use heroin. I won’t belabor the point, but at this stage in this opinion I’m half considering stopping at Big Y next time I’m in Massachusetts to investigate this cake.

Now, here’s the problem. The trooper impermissibly expanded the scope of the traffic stop when he decided it was necessary to call for a canine to sniff the vehicle. The trooper conceded during the suppression hearing that Nicole didn’t have any outward appearance of impairment, even to the point that he didn’t have her perform any sobriety exercises. There also wasn’t any other indicia that there were, in fact, any drugs in the car, such that it would be permissible for the trooper to keep Nicole and J.S. on the scene longer to fish around for what might be there.

So, SCOV decides that once the trooper determined Nicole wasn’t under the influence of any substance, he should have let her go about her business. And because of this error, everything found after he made this determination must be suppressed. That means the heroin wouldn’t be able to be introduced at trial. And from a practical standpoint, it makes it pretty hard for the state to prove a charge of possession of heroin. The big deal here is that if the heroin had been suppressed initially, the charge probably would not have been able to go forward.