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State v. Brown
Judge Maley granted a motion to suppress and dismiss in a DUI case. Officer saw client stop longer than usual at a stop sign. He turned around to investigate, and when he got back to defendant’s car, it had been parked on the side of the street in front of a church with the passenger door open. Officer followed the car when it started moving again but saw no signs of impaired driving. Officer then saw the car pull into a driveway, the lights go out, and then defendant walk to the end of the driveway and look around. Because the car was not registered to the same address as the driveway, the officer concluded the driver was intoxicated and trying to evade the police. The officer blocked the driveway, and eventually arrested the defendant.
Judge Maley concluded that nothing the officer saw would lead a reasonable person to believe the driver was intoxicated. Stopping too long at a stop sign is not a sign of intoxication, according to Judge Maley, as it could just as easily demonstrate a driver’s indecision or nervousness about being followed by an officer. Further, nothing about stopping in a driveway where the defendant does not reside rises to the level of reasonable suspicion for a stop.
State makes the novel argument that the officer had reasonable suspicion the defendant had committed “Trespass by Motor Vehicle,” in violation of 23 V.S.A. § 1135. Maley held that that crime requires a defendant to obstruct a driveway knowing he’s not privileged to do so. Pulling into a driveway only suggests the person doesn’t live there, and walking to the end of the driveway is consistent with permission to be there. Case dismissed.
State v. Kugler
Judge Nancy Corsones suppressed and excluded evidentiary test results in a DUI/civil suspension case. A private citizen made a citizen’s arrest of the defendant after the defendant allegedly drove erratically. A cop came, arrested defendant, and processed him for DUI. Defendant wasn’t from the area, so the cop gave him a choice: either go to the Grace House or go to jail to sleep it off. Unfortunately for the State, the cop didn’t inform the defendant that the cop had an obligation to arrange an independent evidentiary test if the cop detained the defendant. 23 VSA 1203a(b). Judge Corsones relied on prior Vermont Supreme Court decisions and decisions from Judges Griffin, Zonay, and Bent, who all held that suppression is required when a police officer detains a defendant but doesn’t offer to arrange an independent test.
U.S. v. Williams
Judge Reiss issued a good interpretation of 23 VSA 1038. Although defendant’s motion to suppress was ultimately denied, this decision holds that the defendant was unlawfully stopped because “under Vermont law, momentarily touching a passing lane demarcation with no risk to public safety does not give rise to a failure to ‘remain entirely’ in a single lane ‘as nearly as practicable.’” (Decision at p. 10)
State v. Goodwin
Judge DiMauro granted a motion to suppress a confession where the police had twice tried to get the suspect to confess without success. On the third try, they showed him a fabricated report purportedly from the Vermont Forensic Lab and allegedly signed by Eric Buell. The report claimed that the suspect’s prints had been found on a key and the safe allegedly burglared. In a 21 page opinion, the judge analyzed the cases from other states on police trickery and ultimately found that the confession was not voluntary due to the fabricated report.
U.S. v. Mayo
Judge Sessions ruled that a warrantless search of client’s smart phone, seized during a traffic stop, violated the 4th Amendment. Although J. Sessions determined the stop and subsequent vehicle search were lawful (and ultimately applied the good faith exception in this case), he adopted a bright-line rule that all warrantless searches of cell phones seized from a person incident to a lawful arrest are categorically unconstitutional. Judge Sessions rejected the government’s claim that the warrantless search of the phone fell w/in the search incident to a lawful arrest doctrine, which under federal law includes all containers therein. The court’s analysis, and ultimate conclusion, that the smart phone is not a “container” was based on “the magnitude of modern cell phone storage capacity,” which includes access to “the Internet, opening up limitless additional storage.”
State v. Pratt
Judge Mello found that the statute that cloaks corrections records with a privilege requires prosecutors to obtain a court order before obtaining the calls. Nonetheless, he held that suppression was not the remedy.
U.S. v. Battle
Judge Reiss suppressed heroin pursuant to a search warrant which lacked particularity in that it failed to identify the city or town, and inaccurately described the location of the unit to be searched as well as the building.
State v. Martin
Judge Zonay dismissed the State’s civil suspension case because the arresting officer failed to give the client a meaningful second breath test when requested, which is required by 23 VSA 1202 and 1205. Client (who the cop testified was very cooperative) gave a valid first test which showed he was over the limit. Client asked for a second test, which is his right and which serves to verify the accuracy of the first test. When he gave the second test, the Datamaster gave an error message: client didn’t give a large enough breath sample at a sufficient flow rate. Instead of telling the defendant that he hadn’t given enough of a breath sample at the right rate, the cop assumed that the client had refused to give a sample. Cop ends the processing without giving the defendant another test. Held: under the Supreme Court’s recent decision in State v. Spooner, 2012 VT 90, the cop denied client his right to a second breath test. Zonay found that it was illogical to assume that the defendant had refused a second test because the cop had made note that the defendant was being cooperative to that point and because the cop never explained to the defendant that he had to give a sufficiently large breath sample in a certain way. State could not meet its burden of proof under 23 VSA 1205.
State v. Whalon
Judge Grearson suppressed all statements resulting from a custodial interview in a second degree murder case as violative of Miranda and as involuntary. The officers sought out the defendant, got him in their cruiser, and got him to agree to go to the station for photos and DNA. They also got him to consent to a search of his apartment and wanted the contents of his cell phone. The officers used textbook Reid techniques of minimization and maximization on this vulnerable and suggestible suspect who actually asked the cops for a hug because it was so hard. Relying upon Muntean 2010 VT 88 and Tran,2012 VT 104, the court finds the defendant was in custody in the cruiser and police station and interrogated without Miranda. As for voluntariness, the court relied upon Dr. Kinsler’s testimony to find both a vulnerable suspect and coercive police misconduct.
State v. Randy DeBlois
Around midnight on a snowy and icy January night, and without any evidence of speeding, defendant made a right turn going north and slid three times. He corrected the first two but collided into an oncoming car after his car failed to correct the third time. Oncoming driver also slid even though he was in a pick-up truck that had four studded winter tires. Defendant was rendered unconscious and transported to the hospital. Trooper observed one beer can in defendant’s car (unknown if open). Troopers at hospital smelled a strong odor of intoxicants coming from defendant. Troopers saw defendant 1½ - 2 hours after collision. Troopers were not able to perform any field sobriety tests or make observations to determine impairment because defendant was in hospital. Held: without some indication that whatever alcohol he may have had influenced the defendant’s driving ability, there can be no conviction for DUI. The court relied upon out-of-state cases upholding DUI convictions where there were additional indicia of intoxication (other than accident and odor of intoxicants), such as bloodshot and watery eyes, urination, and lack of coordination and mental acuity. See Church v. State, 11 A.3d 226 (Del. 2010).
State v. Frazee
Judge Gerety ruled that the inpatient competency evaluation statute, 13 V.S.A. § 4815(g)(3)(A), requires the Department of Mental Health to provide a defendant with appropriate referrals to mental health services if DMH decides that a defendant does not need to be hospitalized. This ruling ensures that all defendants with a mental illness will receive some mental health care in the period between an order for a competency examination and the competency hearing. Under § 4815(g), a court can order that a competency inpatient competency examination in the custody of the Department of Mental Health. However, under section 4815(g)(3)(A), a DMH psychiatrist can determine that a defendant does not need to be hospitalized. In that case, the defendant is released either to the DOC (if, for example, the defendant is held without or cannot make bail) or on conditions. This case dealt with what happens next. Section 4815(g)(3)(A) provides, in plain terms, that, “The commissioner of mental health shall ensure that all individuals who are determined not to be in need of inpatient hospitalization receive appropriate referrals for outpatient mental health services.”
State v. Haskins
Judge Kupersmith suppress the defendant’s statements in a case involving a bad Terry stop and then bad questioning. The stop was some police information that the defendant was a suspect in a stabbing. An officer claimed he stopped the defendant for a traffic violation, but the detectives working on the stabbing case arrived within moments as part of a pre-arranged plan. They took the defendant into a small vestibule inside Memorial Auditorium, questioned him and, though the defendant denied culpability, arrested him. Although Kupersmith finds that the police had a lawful basis to stop the car under U.S. v. Hensley, 469 U.S. 221 (1985) (“if police have a reasonable suspicion…that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.”), the questioning here went far beyond a Terry stop and created a custodial environment requiring Miranda. Furthermore, the additional questioning after he was arrested and repeatedly invoked or tried to invoke his right to counsel was an Edwards violation. See footnote 8 for the judge’s take on Detective Trieb’s statement that he left the defendant alone to “marinate.”
State v. Parker
Prosecutors charged client with possession of a narcotic and sale of a narcotic based on the allegation that client sold 2 Percocet pills to a CI. State claimed client possessed the pills when she sold them to the buyer. Client pled guilty to both with the understanding that she could challenge the two convictions before sentencing. Defendant argued the State could not charge the two counts because the crime of possession was a continuing offense lasting as long as the act of possession does, which included point of sale (ie., State v. Perrillo; State v. Carrolton (multiple touches are continuous single offense and do not support multiple counts of sexual assault). Defendant also argued the two convictions violated double jeopardy under Blockburger and State v. Neisner, 2010 VT 112 as the crimes were charged in this case. The court agreed and for several pages discussed application to these charges and determined that in most jurisdictions possession and sale of the same drug had been found to not violate double jeopardy. However, Judge Corsones looked at how the prosecution had charged the two offenses and determined that possession was a predicate offense to sale: “The State may not obtain two convictions where one act necessarily leads to the completion of a second and more serious crime.” The court also recognized that Vermont had adopted a broad definition of possession, including constructive possession: “Given this broad definition, it is somewhat difficult to envision a scenario wherein one would be considered to have sold a drug without at least having constructive possession of it.” Motion to dismiss the possession charge was granted.
State v. Williams
Judge Kupersmith rules that objects hanging from rear view mirror do not per se give PC to stop vehicle, and also finds it improbable that officer Michael Fish smelled burning marijuana from moving vehicle in front of him because video showed windows were closed. Dangling objects must be actually obstructing driver’s view.
State v. Keenan
Judge Gerety granted a suppression motion and motion to dismiss in a possession of marijuana case. The case is important for the premise that an officer’s honest but mistaken belief that he had reasonable suspicion may be in fact unreasonable. Here, the officer pulled the defendant over, mistakenly believing it was a black Civic, whereas the plates were registered to a blue Civic. There was no video of the stop and there was no evidence as to why the car looked black when it was in fact bright blue. The officer testified that the vehicle he stopped was black, whereas the evidence showed that it was bright blue. See also, State v. Katz, 2008 WL 2815924 (Vt.)
State v. Jacob Carter
Judge VanBenthuysen granted a motion to return property after the defendant’s car was seized following his arrest for possession of marijuana and cocaine. The state failed to follow the state forfeiture statutes in several ways: there was no evidence that the car was used to transport drugs; the state failed to petition the court forthwith for a preliminary order (on the next business day, according to the court) (filing for a search warrant is not the equivalent); it also didn’t file a petition for forfeiture within 14 days. Held: property must be returned forthwith.
State v. Floyd Amidon
Judge Corsones granted a 12(d) motion on obstruction of justice. While the state introduced a recording from the defendant in jail (charged with Agg. dom. & interference w/ access to emergency services) to his girlfriend (a VCR), that phone call only showed the defendant urging her to “go with what you’ve been saying” and “don’t change your story.” These statements referred to the GF’s second statement in which she said that some of the things she told the officers were only said because she was mad and she did not think defendant would harm her. Because there was no evidence that defendant influenced her in making this second statement and the statement was supported by her 911 call, the judge held: insufficient evidence that he tried to have her change her story.
State v. Winney
Judge Corsones suppressed the test, officers’ observation and defendant’s statements in a DUI# 4 case. Officers went to the scene of a single car accident. No-one had seen the accident or the driver although some people said they thought they saw a person walking away. The officer looked in the truck and found empty beer cans in a paper bag behind the driver’s seat. The officer did not check as to whether the cans were wet or the engine was warm. They got a dog to sniff the truck for the scent of the driver and went down the road. The dog was trying to go up a hill, and the officers saw a person up there. Cops pulled out their guns and ordered the man to put his hands up and walk down the hill. He complied. They ordered him to lie facedown on the ground and handcuffed him, put him in the cruiser and drove him to the station. No field sobriety tests, no PBTs. After getting Miranda, defendant invoked his right to silence. Nevertheless, police listen in to his phone call and then question him about what he had said! Held: this was a de facto arrest without any probable cause to believe he had committed any crime. A car off the road with some beer cans in it doesn’t equal DUI. Motion to suppress granted.
State v. Lackard
Judge Toor suppressed evidence of marijuana and hydrocodone found after a legit traffic stop for a loud muffler. Officer noticed what he claimed were marks on the passenger’s hands which he thought were needle marks -- but they did not provide reasonable suspicion to expand the stop into a drug investigation by questioning her as to the marks on her hands and if she was using any drugs or what a canine would find.
State v. Carter
Judge Wesley suppressed evidence in a car stop. Officer stopped car because it had a temp plate. Court noted that people with a temp plate have a valid right to drive unimpeded and any stop would be "pretextual." Trooper said he noticed "shake" on lap of passenger, but did not take any into evidence. On cross, Trooper said "it was too minute to be worth collecting." Court noted that it seemed odd that the "shake" would be so substantial as to be visually identified as marijuana, but too minute to be able to collect, thus discounting that it was sufficient to rely upon it as identifiable "shake." Court also noted that the trooper gave driver a "warning" for driving with a temp plate even though she was lawfully allowed to, and that the officer wrote on the ticket "contraband" when he had not even searched the vehicle for contraband.
State v. Barratt
Judge Grearson suppressed physical evidence and statements obtained when U.S. Marshalls wrongfully entered defendant’s motel room. Marshalls had an arrest warrant for one Adam Jankowski who was believed was involved with the defendant. They watched the motel room rented to Tara and after they saw Jankowski enter the room, they entered it with a key from management and arrested Jankowski for burglary. Tara was handcuffed but told she was not under arrest. She gave consent to search the room and identified property that was stolen. No Miranda. Court held that police can’t use the arrest warrant for one person to enter the residence of another person unless they have probable cause to believe the suspect was a resident, citing Steagald v. U.S., 451 U.S. 204 (1981). Here, officers had information that the two were involved and had travelled together but no probable cause to believe Jankowski was a co-resident of the motel room. Therefore, they needed a search warrant for Tara’s motel room and they didn’t have it. Evidence and statements suppressed as the direct result of the illegality.
State v. Joyner
Defendant was pulled over on I-91 for having an item hanging from his rearview mirror. Officer asked defendant to come back to the cruiser while he "issued a written warning.” Officer told him he didn’t have to but it would make it easier on the officer if he did. He then asked if the defendant would mind if he searched him, and the defendant asked him, “I gotta get in your car?” Cop said, “Yeah so I can issue a warning.” Cop pats him down and feels a hard object in his crotch. Cop puts him in handcuffs but says he’s not under arrest. Cop transports defendant to barracks. When defendant gets out, cop finds the crack on the floor of the cruiser. Held: An Article 11 violation under Sprague -- an exit order without reasonable suspicion. Sprague is a clear directive to police/prosecutors and officers can’t circumvent it by saying the suspect doesn’t have to exit when it is obvious that no real choice exists. There was no freely given consent for the exit order, the pat-down or getting into the cruiser. All evidence suppressed by Judge Wesley -- 41 grams of crack cocaine and 15 grams of marijuana.
State v. Hagen
In a DUI case, defense counsel requested video of stop and processing. Cops said they didn’t have the processing video because defense did not request it in a timely manner and it had been recorded over, apparently ignoring both 23 VSA 1203(j) and (k) (copy of videotape shall be provided within 10 days after request and shall not be erased until 90 days after final judgment). Judge Kupersmith analyzed this as a lost evidence case and found: bad faith of the police was palpable; lost evidence was extremely important; and there was no other way for defendant to challenge the refusal. Judge did not dismiss DUI, but held that no evidence from the processing could be admitted. He did enter judgment for defendant on the civil suspension.
State v. Vallieres
Judge VanBenthuysen suppressed evidence found in a traffic stop. Officer stopped a car for failing to signal a right turn out of a parking lot. Records check revealed driver had a valid license and registration. Second officer appeared on the scene and began questioning the passenger. The officer claimed he had seen her in a “highly involved drug area” in Newport earlier that day and she seemed nervous. Court held: no reasonable suspicion, so officer illegally expanded the scope of his stop and told the two women that the K-9 unit was on its way and they might be strip searched so they better give up the drugs. The passenger did so. Evidence is suppressed and case dismissed. Once the computer check in a traffic stop comes back clean, the officer must issue a citation if one is being issued and cannot continue to detain the driver unless additional reasonable suspicion has arisen.
State v. Byrne
Judge Rainville dismissed a VOP because the probation order merely listed under Other Conditions “all sex offender conditions.” The court concluded that such a broad condition gives no guidance as to the range of matters or restrictions involved. It also constituted improper delegation of the power to impose probation conditions to DOC.
State v. Bell
Judge Toor found video recorded statements of a co-defendant, which were relied upon by the state, were inadmissible hearsay and without them, the state did not have enough to prove that the defendant had burglarized homes to steal copper.
State v. Deontae McNeil
Judge VanBenthuysen excluded cell tower evidence and testimony of an alleged ex-girlfriend because of late disclosure 5-7 weeks before trial. Defense argued the State had cell phone records used to find the new witness and to secure a search warrant for the cell tower records for over a year. State argued that it had a right to continue to investigate crimes and the evidence was critical to its case. The court found that “the State could have and should have uncovered and disclosed this evidence in a timely manner.” “Allowing the State to use this evidence would defeat the purposes and balanced reciprocal obligations of the disclosure rules and afford the State an unfair and inexcusable advantage.”
State v. Pinsonnealt
Judge Howard suppressed marijuana found in defendant's car after a warrantless search. After an arguably legal stop, the officer ordered the passenger out of the car and the defendant also got out and asked if she was free to leave. Officer said no - told her he suspected a drug deal and patted her down. He then repeatedly asked for consent to search her car and eventually she gave in. Held: an illegal detention tainted her consent to search so evidence suppressed.
State v. Lundblad
Judge Van Benthyusen dismissed a DWI with prejudice because the deputy state’s attorney and his police witness intentionally created a mistrial. Defense counsel got the judge to grant motions in limine precluding the state from making reference to the defendant’s prior DWI and that his car was unregistered and uninsured at the time of the stop. The prosecutor asked his first witness, Sergeant Satterfield, what did after he stopped the car. Sergeant said he asked defendant for his license and registration and defendant said he was under suspension. The prosecutor then asked, “Why was his license suspended” and the sergeant answered, "because of a prior DWI conviction.” Motion for mistrial granted.Defense moved for dismissal with prejudice arguing that where the prosecutorial conduct was so prejudicial that it was tantamount to intentional misconduct, double jeopardy bars retrial. Judge agreed that the prosecutor failed to adequately warn his witness, the witness violated the court order and then the prosecutor deliberately asked the question that caused the mistrial.
State v. St. Francis
Defense won a 12(d) motion by arguing that the state couldn’t prove the client committed a burglary of a structure when he broke into a chain link fenced in enclosure.
State v. McNeil
Judge Bent denied a motion to suppress but ruled that jury instructions on the difficulties associated with cross-racial ID and on the problems of eyewitness unreliability should be given. Defense counsel, representing an African-American male, presented testimony from Dr. Dysart, John Jay College of Criminal Justice, as to how photo arrays should be conducted including:
1. It should be double-blind (cop doesn’t know which person in the photo is the suspect or if the suspect is in the photos).
2. Features should be similar – here the defendant had the darkest skin in the photo array and the complainant had described the suspect as having “dark lips” and not all the photos had individuals with dark lips.
3. ID procedure should be recorded.
4. Witness should not receive any feedback from officers.
The decision also discusses the problems with applying the USSCT’s eyewitness ID framework as the cases are over 30 years old and the science plus DNA exonerations have developed since then to demonstrate that eyewitness misidentification is frequent.
State v. Wood
Defense challenged the accuracy and reliability of a Datamaster DMT that had a history of “interference detected” and “calibration errors” that did not appear to be resolved by the time of the motorist’s test in December 2011. State’s chemist, Amanda Bolduc, opined that elevated detector voltage had no bearing on the accuracy and reliability of the instrument whatsoever. Defense expert, Darcy Richardson, indicated that the Dep’t of Health had done extensive testing around elevated detector voltage and discovered that the device would indicate “interference detected” when there were no interfering compounds present. Therefore, if the detector voltage was elevated at the time of a motorist’s test, the device would be unable to determine whether actual interfering compounds were present.
State v. Raymond
Judge Crucitti ruled that the attempting to elude statute, 23 VSA 1133, does not apply to an operator who brings his car to a stop after being signaled, but who subsequently flees on foot.
State v. Abernathy, et. al.
Judge Arms ruled that the felony arraignee DNA sampling statute violates Article 11’s prohibition against unreasonable searches and seizures! This decision is notable because it’s the first time our trial courts have had a chance to actually evaluate the science involved in DNA sampling and therefore evaluate the privacy interests at stake.
At the motion hearing, defense counsel presented testimony from Dr. Gregory Wray, a geneticist and molecular biologist who runs the Duke University DNA sequencing facility. Previously, courts had believed that the thirteen CODIS loci used to construct a DNA profile provide information only about identity, and that the loci provided no other useful information. Wray testified that advancements in genetics show that six of the thirteen CODIS loci used to create a person’s DNA profile correlate to increased risk of disease (including schizophrenia and heart disease) and also can suggest a person’s genetic ancestry.
Like the recent Addison and Rutland decisions, Judge Arms concluded that the State has only a minimal interest in collecting the DNA of people accused of felonies – the State either will get the DNA after conviction or will have to destroy the samples if there is no conviction. Considering the substantial intrusion that collecting this DNA represents, Judge Arms held that the State’s interest does not outweigh an arraignee’s privacy interest in keeping his or her genetic information private.
State v. Ramos (U.S. District Court)
Judge Reiss suppressed evidence and statements taken in violation of Miranda and the Fourth Amendment. The judge found that Ms. Ramos, stopped on I-91 for speeding and then subjected to questioning, an exit order and required to sit in the cruiser and be further questioned, was in custody. The court found that ordering a suspect in a routine traffic stop to sit and remain in the cruiser and submit to 30 minutes of accusatory questioning without the ability to use her phone or communicate with her passenger was custodial interrogation without Miranda warnings and suppressed her statements. The court also suppressed the evidence from a canine search as the product of an unlawful detention, as without the incriminating statements there was no reason to delay her pending the canine unit’s arrival. Finally, the court found the search warrant lacked probable cause, in the absence of the other suppressed evidence and suppressed the evidence derived from that search.
State v. Dyson
Judge Suntag ordered the state to specify which of the several acts alleged in the affidavit was the charged offense. Suntag found that without some specificity it was impossible to know which act was alleged for which count and ruled that the prosecution could not proceed on multiplicitous charges.
State v. Bunnell
Judge Corsones granted a motion to suppress for a Miranda violation where the defendant signed the waiver but said she was reluctant to speak to the officer, Jason Johnson from the Drug Task Force. Officer then told her that “what’s said in this room stays in this room.” Motion to suppress granted as a subverting of Miranda.
State v. Bissonnette
Judge Arms dismissed a DUI #2 and the civil suspension because although the Winooski Police Department had two videos pertaining to the defendant - they could not be viewed by the defense - they didn’t work- and the WPD refused to allow the defense to view the videos at the police station. Judge Arms reviewed the failure to provide discovery under Bailey and found that the videos could be exculpatory, the statute and rules require law enforcement to provide the videos, and Winooski’s use of a system which won’t allow the defense any way to see the videos weighed heavily in the defendant’s favor.
State v. Hewitt, et. al.
Judge Cortland Corsones ruled that requiring a DNA sample as a condition of release is unconstitutional. The Court, under a special needs analysis, found that the statute constituted a search, but not a need beyond those of general law enforcement purposes such that it removed the probable cause and warrant requirement. The Court went on further and found that even under a balancing test the interests weigh in favor of the accused.
State v. Medina
Judge Toor vacated a condition of his client’s release requiring the client give a sample of his DNA pursuant to 20 VSA 1933(a)(2). Nelson’s client was a 16-year-old charged with aggravated assault and released on bail. In a thorough decision, Judge Toor applied the two-part analysis from State v. Martin, examining 1) whether the DNA collection served a special need beyond the normal needs of law enforcement justifying departure from the warrant requirement and 2) whether the State’s need for the DNA outweighed the defendant’s privacy interests. On the first question, Toor concluded that she was bound to follow Martin and conclude that the DNA sampling here served special needs beyond normal law enforcement.
On the second question, however, Toor concluded that the State’s need for the DNA did not outweigh the defendant’s privacy interests, and therefore the sampling amounted to an unreasonable seizure and search. Because of the interplay between the convicted felon DNA sample statute and the various expungement provisions that will remove DNA from the database if a defendant is acquitted, pardoned, or has some other favorable result, all the State gains by seizing a defendant’s DNA after a felony arraignment is the benefit of having the DNA while the case is pending. Toor concluded that does not outweigh the privacy interests of a person who has only been charged with a felony and is released.
One caveat: Toor says that the analysis is different for a person charged with a felony and held in custody pre-trial, reasoning that a person held in custody pre-trial has reduced privacy interests. Somewhere north of a person convicted of a felony, but south of a person released.
State v. Berwick
Judge Gerety suppressed defendant’s statements in a second degree murder case. Defendant had apparently shot himself and was in dire condition, so naturally the police questioned him at the scene, in the ambulance and later in the hospital all without Miranda. Judge suppressed everything except the statements made at the scene which the court found fit under the public safety exception to Miranda. Judge finds the statements made in the ambulance were the product of a Miranda violation and were involuntary. Statements made at the hospital while he was handcuffed to his bed and questioned were suppressed as a Miranda violation and a violation of the Public Defender Act.
State v. Barnett
Defendant was involved in a high speed chase. At one point during the chase, defendant allegedly tried to strike a deputy’s cruiser with his truck, before speeding away. Defendant allegedly turned down an abandoned farm road, and the police gave up the chase when the terrain became too difficult for the cruisers. Police id'ed defendant through some police work later that night, but did not find the defendant. Thirteen days later, police learned that defendant was at a friend’s house, entered the house with the resident’s permission, and arrested the defendant. Defendant allegedly kicked and struggled with the deputies.
A motion to dismiss was filed, arguing that the officers did not have authority for a warrantless arrest under V.R.Cr.P. 3(b), which permits warrantless arrests for misdemeanors while the crime is being committed or without unreasonable delay. Therefore the arrest was unlawful. The State argued the resisting arrest statute does not require that the arrest be lawful, but instead that officers must be performing some other “lawful duty” at the time of the arrest. Further, the State argued that the time between the alleged offense and arrest was not unreasonable, and that the arrest was lawful in any event because there was probable cause to believe that the defendant had committed a felony – attempted aggravated assault for trying to strike the deputy with his truck.
In a thorough review of the history of common law resisting arrest and the legislative history of our resisting arrest statute, 13 VSA 3017, Judge Eaton held that the State must prove that a defendant’s arrest was lawful. This is in contrast with the hindering arrest and simple assault on a law enforcement officer statutes, which merely require the State to prove that the officer’s actions were lawful at the time of a defendant’s arrest. The decision makes clear that we have a valid 12(d) motion in resisting arrest cases where the police make warrantless arrests for misdemeanors well after the crime was committed, and for other violations of Rule 3. Unfortunately, Eaton also held that the officer had probable cause to believe defendant had committed a felony during the chase by allegedly trying to hit the sheriff with his truck, making the warrantless arrest lawful under Rule 3(a).
State v. Jewell
Judge Toor denied restitution in a possession of stolen property case. A car worth about $4,000 was stolen. Two days later, it was in defendant's possession. He said he bought it for $900. The car was quite damaged. Toor found there was no proof that the defendant caused the damage and rejects the argument that the defendant should be jointly and severally liable for all the damage.
State v. French
Judge Howard suppressed all evidence from a car stop. The officer noticed the defendant going into a store. The defendant briefly walked near the officer as he entered and exited the store. The officer noticed an odor of alcohol and slight sway to the defendant’s walk. The court did not find the officer’s testimony credible that he detected mumbled or slurred speech in a word or two spoken by the defendant as he walked by. When the officer happened to see the defendant get into his truck, the officer followed him and pulled him over as he was entering his own driveway. Held: no traffic infractions; insufficient evidence of impairment and so no reasonable suspicion for the stop.
State v. Mills
Judge Suntag dismissed a disorderly conduct charge of recklessly creating a risk of public annoyance by fighting behavior because the incident occurred in the defendant’s home and no evidence showed that the public would have heard or witnessed the altercation between two roommates. The judge also noted that the use of abusive or offensive conduct in a public place requires “attendant conduct” sufficient to constitute behavior, citing State v. Sanville, 2011 VT 34.
State v. Parson
Judge Zonay suppressed evidence and dismissed three counts of drug possession (two felonies and one misdemeanor). A stop of two people of color on I-91 for a defective license plate light turned into a full blown drug investigation with no reasonable suspicion. The officer had a hunch that the type of rental car (Dodge Charger), the New Hampshire plates, no luggage in the back seat of the car, a negative dog sniff, and the passenger’s valuable ring (cops says it was worth $10,000!) all meant that there was a drug crime afoot. Judge says: the stop was unlawfully expanded in scope and duration without justification.
State v. McGowan
Judge Nancy Corsones to followed the decisions of Judges Kupersmith, Levitt, and Zimmerman in holding that a police officer who has only the information that a vehicle owners’ license is suspended and does not recognize the driver does not have reasonable suspicion to stop the car without evidence that the driver matches the physical description of the owner.
State v. Hollendonner
Judge DiMauro dismissed charges of kidnapping and unlawful restraint where a wife of a probationer is charged with beating up a probation officer in the probation office. Although the court found that the defendant was punching the P.O. while she was down on the floor, the judge found that there was no evidence of restraint and even if there was, it was not for a substantial period and was merely incidental to the assault. Motion to dismiss granted.
State v. Parker
Judge Crucitti suppressed evidence and dismissed case. Officer shows up at a scene of a disabled car and sees defendant’s friend and believes she’s an addict. He begins “pointed police inquiries about drug possession,” conveying to the defendant and his friend that they were the focus of a drug investigation. All the cop had was a hunch. Nevertheless, cop handcuffs the defendant and then asks him if he would consent to a pat-down. Just finds $$. They call the drug sniffing dog and the dog alerts -- and ultimately heroin is found in his wallet. Court suppresses under State v. Pitts and find that the detention was invalid and tainted the subsequent searches.
Judge Crawford prohibited DOC from applying the 70% rule to inmates who were sentenced prior to the rule's enactment on July 1, 2009. The 70% rule (28 V.S.A. 204b) mandates that inmates with certain sex offense convictions who are deemed high-risk serve 70% of their maximum sentences before eligibility for furlough or parole. The ex post facto principle underlying the opinion should apply to anyone who committed their offense before 7/1/09, although it is unclear how DOC will apply the injunction. The challenge to the new law was based on its retroactive application. The challenges to its prospective application are around separation of powers issues, and also in the post-conviction relief arena if the person’s min is less than 70% of his max and he is not warned that he will not be furlough-parole eligible until he hits the 70% point.
State v. Congress
Judge Kupersmith denied the State access to defense witness Dr. Kinsler’s recorded interviews with the client and any notes he made on the interview. Discovery is limited to only those items specifically covered in V.R.Cr.P.16.1, and here the statements made by the defendant are not a report or result. The defendant’s words in the interview are confidential statements that cannot be disclosed even though she has raised an insanity defense. Raising insanity does not waive the defendant’s constitutional rights under 5th and 6th amendments.
State v. Beach, et. al.
Judge Pearson granted motions to suppress and dismiss in 6 felony marijuana/felony possession cultivation cases. He finds in a 28-page opinion that the Northern Vermont Drug Task Force's evidence to support their search of “grow houses” in Wolcott, Elmore and Hardwick was insufficient to provide probable cause. The information from a C.I. may have established probable cause in 2007 but not in 2009. The remaining evidence that there were electrical bills higher than “normal” was insufficient without more. The police officers omitted several important facts from their affidavits--one being a description of the location of one of the grow houses in a vacation camp area where lights may typically be on timers with the curtains closed. Second, the officers asserted in the affidavit that they consistently smelled marijuana coming from one of the houses when they drove by 60-70 feet away, and failed to mention that there were times when they did not smell marijuana. The failure to include that fact required exclusion of the police assertion of smelling marijuana and there was no other evidence. The defense presented expert testimony that smelling marijuana from a car on the road below the house and in January was virtually impossible, but the judge carefully avoided making such a finding. In its conclusion, the judge urges the prosecutors to play a greater role in reviewing search warrant application and emphasizes that the issuing magistrate must avoid the temptation to gloss over the affidavit’s omissions.
State v. Casey
Judge Kupersmith granted a motion for a new trial in the Casey/Parnitzke aggravated sexual assault cases. Kupersmith based his decision on Dr. Hagan’s testimony wherein the state asked him a long narrative hypothetical question which mirrored the state’s entire case and then said is this fact pattern consistent with the profile of a child who has been sexually abused. Hagan responded that it was a textbook case of sexual abuse. This testimony was essentially vouching for the credibility of the child and was way outside of the borders of proper profile testimony. Hagan also testified that this case was quite different from cases of false reporting and that he could detect false reporting.
State v. LaPlante (James)
Good suppression decision from Judge Zonay. An officer was called to remove two men from a bar. He determined that defendant was moderately intoxicated, then, for liability concerns, took defendant into protective custody as incapacitated and found cocaine on him. Zonay decided that defendant was not incapacitated, as not in need of medical attention or supervision or a threat to the safety of others, and suppression of the coke was required to effectuate the purpose of the law (33 VSA 701) to treat alcoholism as a health problem rather than a criminal problem.
State v. Wing
Judge Zonay suppressed breath test results (.233) because the defendant requested an independent blood test (on video) and the officer told him he would take him to the Rutland Hospital, but never did. Instead the officer took him to Grace House. Judge Zonay found that the officer was required to arrange for the blood test as the defendant was detained for some time after the processing, and that the officer prevented the defendant from getting the test.
State v. Mead
Judge Kupersmith suppressed statements made to the police by a defendant in an attempted first degree murder/agg. assault case. The Burlington police posted officers outside the defendant’s room in the ER and instructed the officers not to let him leave. His use of the phone, bathroom, etc. was limited by the officers. When a detective arrived, defendant invoked his right to counsel, which the officer ignored, but did not question him at that time. When the hospital was ready to discharge him, the police told the defendant he could come to the station “voluntarily or in cuffs!” He was taken to the station not in cuffs and questioned without Miranda. After the defendant made some incriminating statements, he was handcuffed and taken to a holding cell. Later he was re-interviewed by the detective who gave him Miranda and apparently obtained a waiver. Kupersmith finds that the defendant was in custody (contrasting the facts with Pontbriand) and both interrogations violated Miranda and Missouri v. Seibert. The judge also finds the right to counsel under Edwards was violated as it was reasonable for the defendant to believe he was about to be interrogated.
State v. Weinberg
Judge Zonay suppressed a breath test on two grounds: an exit order was not based on reasonable suspicion and the implied consent rights were not given to the defendant at the time the test was requested under 23 VSA 1202(d). For the exit order, the court found the cop's insufficient information was: defendant had watery eyes, admitted to one drink, no erratic operation, speech was normal and officer did not smell alcohol until defendant was in the cruiser. Not enough for reasonable suspicion. The client also passed the field sobriety tests given in the cruiser. The officer read the implied consent rights while in the cruiser at the scene of the stop. The court finds that the statute is unambiguous and the failure to give the implied rights at the time the test is requested showed a causal nexus between the statutory violation and an interference with the right to counsel because by the time she spoke to the on-call attorney she had forgotten about her right to a second test or an independent test and did not ask about those.
State v. Beale
Judge Kupersmith dismissed the state’s attempted first degree murder charge against the defendant. The judge found that looking at the evidence in the light most favorable to the state showed that there was insufficient evidence that she had the specific intent to murder her child.
State v. MacLeod
Judge Carroll to granted a judgment of acquittal after a jury convicted his client of DUI! The State’s theory and the charge were that defendant was driving under the influence in Dummerston. Nevertheless, during the final day of trial, the State introduced relation back evidence from its chemist that the defendant drove under the influence in Brattleboro. This evidence had not been provided to the defense before trial. The jury acquitted defendant of DUI in Dummerston, but convicted him of DUI in Brattleboro. Although the State argued that the time and place is not an essential element of the crime, and that the defendant had notice, the judge found that the change between the information and the evidence was highly prejudicial and that the defendant was misled by the State’s information.
Judge Corsones suppressed marijuana found as a result of a consent search following an illegal exit order. Defendant was stopped for speeding. Officer noted defendant’s watery and bloodshot eyes, an odor coming from the car that the officer could not identify, “slight clues” from an HGN test conducted while the defendant was in the car, and defendant’s admission that he had smoked marijuana a month ago and had a prior marijuana possession arrest. PBT results were zero. No signs of impaired driving, slurred speech or other indicia of impairment. Corsones holds that this is insufficient under Sprague to justify the exit order. The court notes that prior arrests do not support reasonable suspicion and disregards the HGN test as not done in conformance with the guidelines. Motion to suppress and dismiss granted.
State v. Marsh
Judge Morris to granted a suppression motion and dismissed a case of possession of marijuana. Police officer follows and stops a red rental car based on an anonymous tip that two men in such a car would be traveling down I-91 to purchase a large amount of cocaine. While cop is checking their names for outstanding warrants, defendant takes a plastic bag from the car and puts it in a nearby trash can. The cop searches the bag and finds paraphernalia. The K-9 unit comes and alerts the officer. The car is towed and later, pursuant to a warrant, searched and marijuana is found. Held: no reasonable suspicion for the stop as no allegation of any on-going criminal activity, and the detention was unlawful. Also, the search of the trash bag was an unlawful warrantless search. Evidence suppressed and case dismissed.
In re Muhammad
Judge Toor found that defense counsel, in a sale of cocaine case, failed to see the risk of asking questions which opened the door to evidence the police had about his client’s other drug involvement. The judge found that the attorney either had not done adequate pretrial discovery so as to be aware of these incidents or was acting without thinking through his questions. Without these errors, the state’s case was significantly weaker and the defendant had a chance of acquittal. PCR granted.
State v. Rappaport
Judge Grearson ruled that evidence of prior injuries to a child was not admissible under V.R.E. 404 (b) or 403 in a trial of aggravated assault on a minor because it was not relevant to show intent or absence of accident. There was no evidence that the other injuries were caused by the defendant and the admission of this evidence is highly prejudicial.
State v. Kimball
Judge Morris in Orleans County allowed defense counsel to attend the court ordered post-plea, pre-sentence psychosexual evaluation. Counsel argued that the psychosexual eval is a component of the PSI and that because PSI interviews have been determined to be a critical stage of criminal proceedings, the right to counsel under the 6th Amend also attaches at these evals. The court agreed. Much of the discussion is spent on the proper scope of the 6th Amend right to counsel at these evals. The court determined that the “attorney is essentially a learned observer, assisting the client in participation in the process of the psychosexual evaluation.… There is no right to presence of counsel during administration of standardized testing. Consistent with the express direction of Carter, counsel may intervene to provide advice to client, or respond to a client’s questions. However, should counsel’s interventions be such as to disrupt the conduct of the evaluation, or in the reasonable assessment of the evaluator render completion of the evaluation impossible, counsel would be exceeding the proper bounds as an advisor to the client and passive observer of the proceedings.”
State v. Alger
Judge Kupersmith suppressed defendant's confession in an arson case as involuntary. Dr. Nash testified and the court found that the defendant’s IQ is 84 and he was particularly susceptible to suggestion made by persons in authority. The defendant conformed his answers to what the officers wanted him to say.
State v. Williams & LaCross
Zimmerman suppressed drugs and dismissed the case where the officers had a search warrant to search a particular residence. The client was not mentioned in the affidavit and he testified that his bedroom was exclusively his. No probable cause to believe that the defendant possessed drugs or was involved in the drug activities of others at the residence.
State v. McNamara
Judge Corsones rejected the state’s claim of community caretaking where the officer saw a lone vehicle pulled over in a designated rest area. The driver’s side door was open. The defendant closed her door and began to drive away, but the officer stopped her. There were no facts to indicate the defendant was in need of assistance.
State v. Smith
Judge Zonay suppressed cocaine and marijuana seized by police following a lawful car stop. In a long and helpful opinion, Zonay finds that after stopping a car for crossing the center line, police unlawfully extended both the duration and scope of the stop by continued and intense questioning for 44 minutes without reasonable suspicion of drug activity. Court rejects as not credible the trooper’s claim that the race of the two passengers (male-black) and driver (female- white) did not play a part in his suspicions of drug activity. Cop called for back-up almost immediately after stopping the car based upon his claims that the rear passenger was nervous and front passenger was not and the stop was made around 3:00 am. Court finds this insufficient and discusses the limited significance of nervousness in determining reasonable suspicion.
State v. Latham
Dismissal of felony crack cocaine possession charges, as well as a VOP based on the charged event. Police were esponding to drug tips that could not support a warrant. They left the station without a ticket book and a consent to search form. For some reason, they detained the vehicle for twenty minutes without acting on traffic violations. They obtained the consent form, but not the ticket book. Judge Rainville found a Sprague/Cunningham violation. The judge also believed the client that the “consent” was obtained after a claim of authority and was not voluntary.
State v. Vey
Suntag dismissed 15 counts of embezzlement and failure to deliver title.
Judge Zonay suppressed a confession in a case of two counts of L&L with a child. Judge Zonay found that the statements were involuntary due to the Brandon Chief of Police's promise that the defendant would not be arrested if he admitted to the alleged crimes.
Judge Morris suppressed 10 bags of heroin and 4.5 grams of marijuana. Officers were looking for the defendant based upon a vague tip from an informant. They pulled defendant over for failing to signal a turn and blocked his car so that he could not drive away. The officer ordered the defendant out of the car and immediately patted him down and retrieved a hypodermic needle from his pocket. Then the officer asked him where the heroin was, and of course, the defendant told him it was in his backpack. The court finds that there was no need for the pat-down. It was daylight and in downtown Newport. The officer had no information that the defendant was armed and dangerous. The court finds that the fact that an officer believes drug dealers carry weapons is insufficient by itself to justify a Terry frisk. The court also holds that at the time the officer asked the defendant where the heroin was, the defendant was in custody given the blocking of his car and the officer’s discovery of the needle. No Miranda rights were given. Despite a signed consent to search form, the court held that the contents of the backpack must be suppressed as the fruit of the unlawful pat-down and Miranda violation.
Judge Kupersmith granted a new trial based upon prosecutor Lavoie’s remark in closing that the defendant tried to put the stories together after the witnesses had testified -- the implication being that the defendant fabricated his testimony after listening to his own witness. There was no evidence of this in the record, so the judge granted the motion for new trial.
State v. Cast
Judge Zimmerman granted a motion to suppress and dismiss a DUI and civil suspension where the officer stopped the defendant because she observed him driving in circles in a parking lot at 4:30 a.m. The community caretaking exception does not apply because there was no objective information that anything was wrong.
State v. Beckwith
Judge Wesley granted a motion to dismiss a civil suspension where the officer arranged for the defendant to speak with an attorney at the point in the processing calling for Miranda warnings, but completely omitted the implied consent right to an attorney. Judge Wesley found that defense counsel had “carefully and persuasively explicate[d] the jurisprudence” and “convincingly” rebutted the state’s argument.
State v. Pelkey-Grant
Judge Zonay granted a motion to suppress all of client’s statements made in response to custodial interrogation in a murder case. Detectives interrogated defendant at her home - the scene of the homicide - without giving Miranda. After taking her to the police barracks, they finally gave her Miranda. She indicated she would only draw a map, but the police continued to question her as she drew it. Police again interrogated her several days later at the barracks. The judge found that she was in custody while in her home and at the barracks, and the continued questioning without a Miranda waiver was a Miranda violation. The subsequent questioning was also suppressible as the fruit of the poisonous tree under Badger. The map was also suppressed.
Docket 416-4-08 Wncr (Grearson)(August 28, 2009)
Judge Grearson suppressed a confession in a case involving two charges of aggravated domestic assault on a child. The defendant was interrogated for more than seven hours by Det. Twohig. Dr. Kinsler testified as to the minimization, implied promises of leniency, and coercion used by Twohig, and the young defendant’s compliant personality.
Docket No. 510-5-08 Frcr (Kupersmith)(August 6, 2009)
Judge Kupersmith found the client incompetent in a sex assault on a child case due to low IQ and severe memory deficits. Dr. Kinsler testified for the defense, and his psychological testing and assessment convinced the judge to reject Dr. Linder’s testimony that he believed the defendant’s memory was adequate although he had conducted no formal psychological or neurological tests.
Docket No. 69-1-07 Cacr (VanBenthuysen)(June 16, 2009)
Judge VanBenthuysen granted youthful offender status for a manslaughter client, who at age 15 was charged with second degree murder for shooting, in a struggle, a man who had just had sex with his psychotic mother. The judge found that Jonas was not dangerous and was amenable to treatment. Dr. Kinsler testified for the defense and his testimony was relied on by the judge.
State v. Ackland
Docket No. 198-5-09 Ancr (C. Corsones)(June 15, 2009)
Officer pulls woman over because he thought her car sounded loud and he thought he heard her “rev” her engine at a stop sign. No speeding, no erratic driving. Judge Cortland Corsones finds no reasonable suspicion to stop.
State v. Wright
Docket No. 923-8-08 Frcr (Kupersmith)(May 27, 2009)
Judgment of acquittal post-trial from Judge Kupersmith in a reckless endangerment case where the claim was that the defendant pointed an air rifle at five juveniles. The judge finds that an air rifle is not a firearm, and therefore, the state has to prove that pointing it at people placed them in danger of death or serious bodily injury, which it couldn’t do because it never proved that the air rifle was loaded.
State v. McDonald
Docket No. 921-8-08 Frcr (Kupersmith) (April 8, 2009)
Judge Kupersmith held that statements made by defendant’s children, elicited by their grandmother, were inadmissible as they lacked “substantial indicia of trustworthiness” pursuant to V.R.E. Rule 804a(a)(4). In a case involving two counts of lewd and lascivious conduct against his two minor children, the state sought admission of explicit statements detailing how the defendant allegedly engaged in sexual acts with them. Applying the American Prosecutors Research Institute (APRI) guidelines used by defense expert witness Dr. Mantell, the court found the grandmother’s interview of the children “seriously flawed” as it lacked objectivity and was not recorded. Neither did the grandmother separate the two children before questioning them. The court, noting that use of open-ended questions by interviewers is “perhaps the most critical principal,” found the grandmother’s questions and technique of using dolls improperly suggestive. Although some parts of the interview were arguably admissible, the court held that it would not be “reliable, fair, or appropriate to lift these statements out of context” and denied the entire sequence of statements by the children. Motion to exclude granted.
State v. Letkowski
Judge Kupersmith denied admission of a child’s hearsay statements to her mother, the detective and DCF worker as not containing substantial indicia of trustworthiness. Dr. Mantell testified at the hearing, and Kupersmith concluded that he is “an exceptionally qualified expert in the area of evaluating allegations of sexual abuse of children” and in the critique of child interviews. Dr. Mantell pointed out the numerous interviewing deficiencies of the NUSI team and the judge warned that unless appropriate standards and training are implemented, the court will be compelled to continue to reject statements that don’t demonstrate trustworthiness.
State v. Subair
Judge Corsones suppressed all drugs seized following a lawful traffic stop which then morphed unlawfully into a drug investigation based entirely upon the officer’s discovery of a white powdery substance inside a small container used to carry pills (or narcotics). Without knowing whether the substance was legal or not, the stop was unlawfully expanded in scope and duration.
No. 262-2-04 Wmcr.
Judge Hayes ruled that the state has no authority to obtain an independent examination of the defendant where competence but not sanity has been raised. Rule 16.1(a)(1)(I) allows the court authority to order the defendant to submit to a mental examination only when the defendant has raised an issue relating to a mental condition bearing on guilt. Competence is not a defense and does not bear on guilt; it is a due process requirement.