State v. Chicoine

State v. Chicoine (2005-529)

2007 VT 43

[Filed 24-May-2007]

                                 ENTRY ORDER

                                 2007 VT 43

                      SUPREME COURT DOCKET NO. 2005-529

                              MARCH TERM, 2007


  State of Vermont                   }           APPEALED FROM:
                                     }
                                     }
       v.                            }           District Court of Vermont,
                                     }           Unit No. 2, Chittenden Circuit
  Philip Chicoine                    }
                                     }           DOCKET NO. 926-2-05 Cncr

                                                 Trial Judge: Edward J. Cashman 

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendant Philip Chicoine entered a conditional guilty plea
  to one count of felony possession of cocaine, 18 V.S.A. § 4231(a)(2), after
  the district court denied his motion to suppress evidence discovered in the
  course of a police officer's pat-down following a traffic stop.  On appeal,
  the State did not seek to justify the warrantless search as a frisk for
  weapons, but defended the court's conclusion that the pat-down was
  reasonable as incident to a valid arrest for drug possession.  We find,
  however, that the investigating officer lacked probable cause to arrest, so
  the warrantless pat-down search was not justified by the exigency of
  arrest.  We therefore reverse the denial of suppression.

       ¶  2.  The trial court made the following factual findings. (FN1)  On
  December 30, 2004, the investigating officer and his partner drove to an
  address in South Burlington to conduct a search for illicit drugs.  When
  they arrived they saw a car exit the driveway.  The officers followed the
  car, noticed that one of its rear brake lights did not operate, and
  activated their cruiser's blue lights.  Defendant did not pull over right
  away.  After activating the cruiser's siren, both officers saw defendant's
  passenger quickly lean over and appear to place something in defendant's
  mouth before defendant pulled into a parking lot and came to a stop.    
   
       ¶  3.  Believing that defendant and his passenger were attempting to
  dispose of illicit drugs, the officer rushed to defendant's car, opened the
  driver's-side door, and asked defendant to open his mouth.  Defendant
  complied, and the officer found no illicit substances.  The officer
  proceeded with the traffic stop and informed defendant of his inoperable
  brake light.  The video shows that when asked where he was coming from,
  defendant said he had been visiting a coworker at the same house targeted
  by the police for the drug search.  Defendant voluntarily exited his
  vehicle to inspect the light, and the officer informed him that he was not
  going to issue a ticket.  Instead, the officer asked if defendant possessed
  any drugs and inquired about the passenger's activity prior to the stop. 
  Defendant said he neither possessed nor destroyed any drugs.  Upon request,
  defendant agreed to empty his pockets, but, based on the video depiction,
  apparently did not do so completely, saying "That's about it."

       ¶  4.  At this point the officer noticed defendant shielding the
  left side of his body and conducted a pat-down search without defendant's
  consent.  He felt a soft package in defendant's left jacket pocket, which
  defendant insisted was napkins.  The officer then handcuffed defendant,
  reached into the jacket pocket, and seized twenty-four grams of cocaine.  

       ¶  5.  Police officers may conduct a warrantless pat-down search
  with the driver's consent, State v. Zaccaro, 154 Vt. 83, 87, 574 A.2d 1256,
  1259 (1990), or if they reasonably believe that the driver may be armed and
  dangerous, State v. Jewett, 148 Vt. 324, 328-29, 532 A.2d 958, 960 (1987). 
  Here, the trial court found that the pat-down was not consensual because
  defendant's statement, "You're going to frisk me!" evidenced surprise
  rather than assent.  The court also found that the officer conducted the
  pat-down with the intent to discover illicit drugs, rather than to search
  for weapons.  The trial court upheld the search as incident to arrest,
  finding that the officer had probable cause to believe defendant possessed
  illicit drugs because: (1) defendant drove from a suspected drug house; (2)
  the officer observed defendant and his passenger "engage in a known drug
  elimination ploy" by the companion placing something in defendant's mouth;
  (3) defendant gave evasive answers to the officer's questions; and (4)
  defendant appeared stressed and shielded the left side of his body after
  emptying his other pockets. 
     
       ¶  6.  On appeal, defendant argues that the officer impermissibly
  expanded the scope of the initial traffic stop and conducted a warrantless
  search without consent and absent probable cause that a crime had been
  committed or reasonable suspicion that defendant was armed and dangerous. 
  The State contends that both the initial traffic stop and request for
  defendant to open his mouth were supported by reasonable, articulable
  suspicion of criminal wrongdoing.  The State asserts that the follow-up
  search was a valid search incident to arrest based on probable cause that
  defendant possessed drugs.  In an appeal of a motion to suppress, we review
  the trial court's factual findings for clear error and its legal
  conclusions de novo.  State v. Yoh, 2006 VT 49A, ¶ 10, __ Vt. __, 910 A.2d 853.
      
       ¶  7.  Under both the Fourth Amendment to the United States
  Constitution and Chapter I, Article 11 of the Vermont Constitution, a
  police officer may initiate a traffic stop if the officer has reasonable,
  articulable suspicion of wrongdoing.  State v. Beauregard, 2003 VT 3, ¶
  6, 175 Vt. 472, 802 A.2d 183 (mem.).  Defendant does not contest the
  validity of the initial traffic stop for operating a motor vehicle with a
  faulty brake light in violation of 23 V.S.A. § 1221.  Furthermore, a police
  officer may expand the scope of an investigatory stop and conduct a
  warrantless search if the officer has probable cause to arrest.  State v.
  Meunier, 137 Vt. 586, 588, 409 A.2d 583, 584-85 (1979).  A warrantless
  search incident to an arrest may occur prior to the arrest so long as the
  two are "substantially contemporaneous."  State v. Greenslit, 151 Vt. 225,
  229, 559 A.2d 672, 674 (1989) (citing United States v. Ilazi, 730 F.2d 1120, 1126 (8th Cir. 1984)).  Therefore, if the officer had probable cause
  to arrest defendant prior to conducting the first pat-down search, the
  trial court properly denied defendant's motion to suppress.  

       ¶  8.  Probable cause for a warrantless arrest requires the same
  level of evidence needed for the issuance of a warrant.  State v. Blais,
  163 Vt. 642, 643, 665 A.2d 569, 570 (1995) (mem.).  Probable cause exists
  when the facts and circumstances known to an officer are sufficient to lead
  a reasonable person to believe that a crime was committed and that the
  suspect committed it.  Greenslit, 151 Vt. at 228, 554 A.2d  at 674.  This is
  a higher standard than the reasonable suspicion needed to temporarily
  detain a suspect for investigation.  State v. Lamb, 168 Vt. 194, 196, 720 A.2d 1101, 1102 (1998).  It is also a higher standard than the reasonable
  suspicion needed to justify a pat-down search for weapons in the interest
  of officer safety in connection with an investigatory stop.  Jewett, 148
  Vt. at 327-28, 532 A.2d  at 960 (explaining that arrest must be based on
  probable cause, while less justification is required for the lesser
  intrusion of a brief protective search for weapons).  We review a finding
  of probable cause to see if it was based on substantial evidence.  Blais,
  163 Vt. at 643, 655 A.2d  at 570.

       ¶  9.  We need not address defendant's claim that the officer
  unlawfully extended the original traffic stop because the trial court's
  conclusion that probable cause to arrest authorized the initial pat-down
  search is not supported by the record.  The officer observed the passenger
  appear to place something quickly into defendant's mouth prior to the stop
  and defendant try to shield the left side of his body just prior to the
  first pat-down search.  These kinds of furtive gestures, without more, are
  ambiguous and insufficient to give rise to probable cause to arrest.  See
  State v. Emilo, 144 Vt. 477, 483-84, 479 A.2d 169, 172 (1984)
  (acknowledging that flight and other furtive gestures, while indicative of
  guilty knowledge, do not provide probable cause for arrest).  Even though
  the officer witnessed defendant leave a suspected drug house, proximity to
  a location known for illegal activity is insufficient to provide probable
  cause for a search.  Blais, 163 Vt. at 643-44, 665 A.2d  at 570-71.  Neither
  furtive gestures unaccompanied by specific knowledge connecting defendant
  with evidence of a crime, nor presence at a suspected drug residence,
  absent observations of defendant engaging in illegal behavior, provide the
  substantial evidence needed to find probable cause for a search incident to
  arrest.  See id. at 644, 665 A.2d  at 571 (finding that although officers
  knew a felony had been committed, they had no probable cause to believe
  defendant had committed it solely because he was the only person near a
  large field of marijuana); Emilo, 144 Vt. at 484, 479 A.2d  at 173
  (concluding that arresting officer lacked reasonable, articulable suspicion
  of any wrongdoing based on a suspect's flight alone). 
   
       ¶  10.  Defendant's departure from a suspected drug house, his
  hurriedly placing something in his mouth, and his anxious and furtive
  behavior may all be suspicious, but do not amount to probable cause.  The
  totality of the situation falls short of the "laminated total" of merely
  suspicious bits of information found sufficient for probable cause in
  United States v. Harlan, 35 F.3d 176,179 (5th Cir. 1994) (quotations
  omitted), and cited by the State in support of probable cause in this case. 
  In addition to odd travel plans, nervous behavior in airports, a bulging
  jacket pocket, and misleading statements to police, the suspect in Harlan
  was also known as a suspected cocaine trafficker, was carrying $8,000 cash
  in a garment bag, and admitted to police that some of his money might be
  illegal.  Id.  Such additional circumstances to bolster the officer's
  suspicion to the level of probable cause are missing here.  There were no
  physical signs of illicit drugs on or near defendant prior to the pat-down. 
  Cf. Greenslit, 151 Vt. at 228, 559 A.2d  at 674 (finding probable cause
  where officer saw and smelled marijuana smoke contemporaneously). 
  Defendant was a stranger to the officer.  The trial court noted that,
  according to the officer's affidavit apparently admitted into evidence
  without objection, the officer had tips that defendant's companion was
  involved in the drug trade at a local bar, but on the face of the affidavit
  none of the tips were founded on substantial recitations of reliability,
  such as a "basis for believing the source of the hearsay to be credible" or
  "a factual basis for the information furnished," as required for probable
  cause for a warrant under V.R.Cr.P. 41(c).  See State v. Morris, 165 Vt.
  111, 129-30, 680 A.2d 90, 102 (1996) (citing Aguilar v. Texas, 378 U.S. 108
  (1964), and Spinelli v. United States, 393 U.S. 410 (1969), in concluding
  that informant's information failed to establish probable cause because
  officer failed to establish its reliability).

       ¶  11.  The officer did not have probable cause to arrest before his
  pat-down of defendant.  The trial court found that the pat-down was neither
  necessary for the protection of the officer nor consensual, but was solely
  intended to search for drugs.  The merely suspicious surrounding
  circumstances of defendant's departure from a drug house and ingestion of
  something before stopping, followed by furtive and anxious behavior,
  without more, did not provide the probable cause necessary for arrest. 
  Consequently, there was no justification for a search incident to arrest,
  and the officer's initial pat-down, as well as his subsequent search of
  defendant for drugs, violated the Fourth Amendment and Article 11.  

       Reversed and remanded.  


                                       BY THE COURT:


                                       _________________________________________
                                       Paul L. Reiber, Chief Justice

                                       _________________________________________
                                       John A. Dooley, Associate Justice

                                       _________________________________________
                                       Denise R. Johnson, Associate Justice  

                                       _________________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _________________________________________
                                       Brian L. Burgess, Associate Justice


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                                  Footnotes

FN1.  The stop was videotaped by the officer.  We rely on the videotape for
  matters not expressly found by the trial court, as well as the court's
  findings.