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| This is not a K-Mart "blue light special" |
by Jacob Oblak
Things are not always as they seem. That’s a major theme in Macbeth. (My high school English teacher would be so proud of me.) Fine, you want a current reference? Think Morpheus and the red pill. Wait, The Matrix is over 20 years old now? How about “a cover is not the book”; it’s a good song from a great movie. Sorry not sorry, this social isolation has me binge-watching classics. You should too.
Also yes, I’m getting old. Whatevs. My point is that things often turn out to be something else entirely, so read between the lines and keep an open mind. On to the story.
One pleasant 2016 morning, Bennington Police Officer Murawski gets a phone call tip that a certain kind of car will be driving up from Springfield, Massachusetts on Route 7 between 2pm-4pm with a bunch of drugs. Tipster is anonymous, but tells Murawski the driver will be the son of a certain guy police know has a police/drug history. Tipster describes the driver as being a “lean black male.” Murawski doesn’t think this is enough to go on, but passes the info along to other officers anyway.
Officer Cole hears this and decides to park south of Bennington on Route 7 (you know, closer to the Massachusetts border). Sure enough, he eventually sees a similar-looking car driving north driven by a “lean black male,” turn into a gas station without using a blinker, turn around and then go back south. Cole tries to pull the car over and has to use lights and siren because the car goes about a half mile before pulling over. Murawski and Officer Grande arrive as backup. Brake lights are still on, so Grande thinks the car isn’t in park. All three officers draw their guns but hide them behind their backs so the driver can’t see them.
Clinton-Amiable is the driver. Cole talks to him, doesn’t see any weapons or drugs, gets his registration (it’s a rental car) and valid license, and smells the odor of marijuana coming from the car. Clinton-Amiable has an interesting story for the officers about his travels (Albany NY to Pittsfield MA to Bennington, VT), and he is curiously unable to name the girl he’s in Bennington to see or explain why he was turning around at the gas station.
Murawski sees air fresheners, aerosol cans, and sees Clinton-Amiable smoking. Murawski testifies later that these elements in his training and experience often indicate an attempt to hide the smell and presence of drugs. During this entire interaction with the three officers, Clinton-Amiable is visibly shaking, extremely nervous, and refuses to make eye contact.
Murawski asks Clinton-Amiable to get out of the vehicle. He declines. Murawski then orders him out, and Clinton-Amiable obeys with his hands in the air. Officers explain they can smell marijuana, so Clinton-Amiable hands them a bag with 4.5 grams in it and says he was smoking and using air fresheners to hide the smell. Clinton-Amiable gets a ticket for not using his blinker.
Officers never ask Clinton-Amiable if he was related to the man from the tipster’s tip, but they do ask for consent to search the car. He declines. Officers seize the car and apply for a search warrant. Later, when the judge grants the warrant and officers search the car, they find cocaine concealed in the trunk and charge him with possession.
Turns out Clinton-Amiable isn’t at all related to the guy the tipster was talking about—he’s a different “lean black guy” driving a car. So his defense attorney raises three questions for the trial court to figure out.
First, did the three officers, three cars, lights, sirens, and guns drawn turn the traffic stop into a de facto arrest? Because if he’s actually under arrest as they approached his car, reasonable suspicion isn’t enough anymore. The officers would need probable cause of a crime at that time, which I think everyone agrees they didn’t have. Second, did the police have enough of a good reason to order Clinton-Amiable out of the car? Third, did the police have probable cause when they applied for the search warrant that there was drugs in the car?
If the trial court agrees with the defendant on any one of the issues, that likely means that the cocaine gets suppressed (can’t be used as evidence against him), and then the State’s case is pretty much done. The trial court, however, sides with the State.
The trial court says this was just a traffic stop, not an arrest until after finding the cocaine. Also, there were plenty of suspicious things going on to justify officers’ actions of pulling him over, ordering him out of the car, and getting a search warrant. Clinton-Amiable’s driving was odd; he suddenly turned around without a blinker; he took a half mile to pull over; he sat on his brakes. The car smelled like marijuana; and he was extremely nervous. He gave the officers a contradictory, suspicious story. Oh, and he matched the tipster’s description as a “lean black male.”
The trial court did comment on the officers’ failure to even ask him whether he was related to the guy from tipster’s tip. The trial court said “this is a glaring gap in the grounds for their suspicions, but the court does not find it fatal.” So the trial court moves on to a bench trial and finds Mr. Clinton-Amiable guilty of cocaine possession. Defendant appeals to SCOV.
SCOV starts by explaining the various standards of review for each of the questions raised by defendant. However, SCOV quickly focuses in on question #3—whether probable cause existed to search the vehicle. SCOV says no, it did not.
First off, tipster was not a reliable source of any specific information and was not credible. Officer Murawski’s original hunch, that tipster’s story wasn’t enough to go on, was right. Furthermore, the officers clearly ditched any attempt to verify the info given by tipster, entirely failing to ask whether Clinton-Amiable was the son of the known drug guy (he wasn’t).
Also, tipster’s tip was totally vague, just that a certain vehicle “might be engaged in illegal drug proceedings.” Tipster was just saying the car had been near suspected drug transactions, but didn’t have any specific info about how the car was involved and hadn’t seen actual drug transactions happening. Essentially, tipster had a hunch.
SCOV then looks at the other reasons the State gave to support probable cause. Since Clinton-Amiable admitted to officers he was smoking and using air fresheners to mask the marijuana smell, and marijuana in certain small quantities has been decriminalized, that can’t support probable cause regarding any other, actually illegal drugs in the car.
Sure, Clinton-Amiable’s story for his travels and U-turn didn’t make any sense, and he couldn’t answer basic questions about his plans. But while that can support reasonable suspicion, it isn’t enough to support probable cause that there’s cocaine in the car. It’s not irrelevant; it’s just weak.
He certainly was nervous. SCOV notes that this can support reasonable suspicion as well, but is of limited value for probable-cause analysis. That’s because there’re lots of reasons to be nervous around police—some guilty reasons and some innocent reasons. SCOV cites a U.S. Supreme Court case that mentions that “some citizens, particularly minorities and those residing in high crime areas” are often nervous around police. SCOV leaves it at that and moves on.
Sidenote (or . . . . main note?): Chief Justice Reiber writes a very brief concurrence on this point to question whether nervousness should really ever be considered suspicious. He explains that race may very well have played a big part in why the police stopped and searched Clinton-Amiable and his car. He also cites studies and statistics that show that minorities are stopped disproportionately in Vermont and that when police use otherwise innocent behavior (nervousness, evasiveness) to support reasonable suspicion, it disproportionately impacts minorities.
Lastly, SCOV deals with the smell of marijuana. SCOV explains that it understands marijuana is no longer illegal, but lots of legal things can contribute to suspiciousness, like being nervous, giving a contradictory story, and driving a rental car. Officers have to be able to analyze more than just the presence of marijuana from the smell in order to support probable cause—like how intense the smell is or whether it smells fresh vs. burnt. Here, officers didn’t say they kept smelling marijuana wafting from the car after they’d taken Clinton-Amiable’s recreational amount from his person. It just wouldn’t be logical to argue that the presence of a recreational amount creates probable cause that there’s an illegal amount hidden away. Not good enough.
Therefore, SCOV concludes that since there was not enough evidence to support probable cause, the search-warrant judge should not have granted the search warrant. Without a search warrant, the police wouldn’t have been allowed to search the car. Without the search, no cocaine. Without the cocaine, no criminal charge. Conviction overturned.
As with most of life, there’s more than meets the eye.
Thanks for writing
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