Vermont Supreme Court

Decisions of Note:

State v. Baker, 2017 VT 91
In this case, defendant crossed the center line of a road in Swanton and crashed into a car driven by a woman and her children from Massachusetts.  The woman’s husband had stayed home to work, but left his shift upon hearing about the accident to go home, take a nap, and then drive to Vermont to collect his family, attend to insurance matters, and collect belongings from the car.  He stayed in Vermont for a few days, and missed about 30 hours of work time, losing out on $828.88 in wages.  After a restitution hearing, the trial judge issued a restitution order compensating the husband for his lost wages, reasoning that the lost time was a direct result of the defendant’s crime. The VSC reversed, finding that the lost wages were not the direct result of the defendant’s crime.  The Court noted that the “direct result” requirement of the restitution statue and the statutory definition of “victim” not only requires but-for causation, but also requires that the loss suffered by the victim be reasonably foreseeable.  The test seems to be restitution will be available for those harms that a defendant could have reasonably predicted at the time of the offense.  The Court also goes out of its way to say again that restitution is narrow in scope and the foreseeability requirement is “stringent.”

State v. Love, 2017 VT 75
The Vermont Supreme Court held that the 21-day rule in the civil suspension statute, 23 V.S.A. 1205(h)(1), is mandatory and jurisdictional in second and subsequent suspension cases, as has been the case with the 42-day rule in the same statute.  This means that if a court does not hold a final civil suspension hearing within 21 days of the preliminary hearing, and the case is at least a second suspension case, the case must be dismissed.

State v. Gates, 2016 VT 36
The Vermont Supreme Court reversed Judge Howard’s decision to revoke the defendant's bail after he was charged with several new crimes, including a felony obstruction of justice charge and 17 VCRs. The trial court defense attorney had been battling it out with the prosecutor to fight bail revocation and push the court to decide the competency issue as defendant had been found incompetent to stand trial in earlier alleged offenses and argued that the new charges were interrelated with the client’s mental condition. Justice Dooley, writing for the full Court, agreed with defendant's argument that the State had failed to establish a “legitimate and compelling” interest to justify the court’s denial of bail under 13 VSA 7575 as required by the Vermont Constitution. Relying and expanding upon State v. Sauve, 159 Vt. 566 (1993), Justice Dooley confirmed that mere repeated VCRs and fact of additional criminal charges were not enough to meet the high right-to-bail standard under our Constitution. Instead, the state was required to show that the new crimes/VCRs actually disrupted the prosecution of the underlying crime. The Court confirmed that this constitutional analysis applied to all five prongs of the revocation statute. The State claimed that the obstruction of justice charge (telling an officer that he was going to let the air out of the prosecutor’s tires) was itself a threat to justice warranting revocation, but the supreme court held that mere evidence of the charge was not enough. Instead, the State was required to meet its preponderance of the evidence burden through live testimony, which could be supported by police affidavits. It did not. In the meantime, the Supreme Court agreed that it was difficult to conclude that the multiple charges and defendant’s mental condition were not interrelated  and  “strongly urged” Judge Howard to determine defendant’s competency to stand trial as soon as possible.

State v. Madigan, 2015 VT 59
Reversal of conviction on three counts of L&L-with-a-child. VSC ruled that: 1) that the trial judge improperly allowed the prosecutor to admit Rule 608(a) character-for-truthfulness evidence when the complainant’s character hadn’t been attacked; 2) that the trial court improperly admitted hearsay statements about the complainant’s fear of the defendant; and 3) that the prosecutor’s “Golden Rule”-style argument was impermissible.  The Court also refused to adopt a “fresh complainant” exception to the hearsay rule.  Facts:  client and his daughter took in his daughter’s friend, who was estranged from her parents, and gave her a place to live, right around the start of high school.  She testified that after her freshman year the defendant started touching her while she slept.  She testified to three occasions during which she awoke to the defendant touching her breasts, buttocks, or pubic area, and a fourth during which she awoke to find her hand on his penis.  It all stopped when she asked him to put a lock on her door.  She didn’t tell anyone until two years later, when she told her story to her friend.  That friend testified at trial, as did the complainant. The defense was that this was fabricated.  Defense counsel offered a counter-narrative:  complainant’s story was unclear, inconsistent, and delayed.  Counsel explained that the complainant had a motive to fabricate:  defendant’s daughter was moving on to great things, while the complainant was going nowhere.  She grew tired of living in the defendant’s daughter’s shadow, and she then brought attention back to herself. In response, the State offered testimony from two witnesses that the complainant had a reputation for truthfulness in the community.  The Supreme Court reverses.  Under V.R.E. 608(a), this type of character evidence may be admitted “only after the character of the witness for truthfulness has been attacked….”  The Court draws a distinction between vigorous cross-examination, impeachment by contradiction, and evidence that a person has a bias in a particular case and attacking character.  It’s one thing to point out the problems with the veracity of a witness’s story; it’s another to attack reputation.  Courts should strictly control when reputation evidence comes in.  While the Court allows that a “slashing cross-examination” might step over the line, that didn’t happen here.

The trial court also committed error when it allowed complainant’s friend to explain the complainant had told her she’d moved out of the defendant’s house because he sexually abused her.  The trial judge admitted it as a “then-existing state of mind” exception under V.R.E. 803(3), and the Supreme Court quickly dispatched with this one.  That exception, like present-sense impressions and excited utterances, allows admission of statements made under circumstances of spontaneity that supply trustworthiness.  Moreover, the state-of-mind exception is limited:  the mental state sought to be shown has to be relevant to something other than to prove the events giving rise to the mental state.  The hearsay here was only admitted to prove the alleged abuse, not some mental state.  Using the exception this way would swallow the rule.

The State also argued for adoption of a new exception called the “fresh-complaint doctrine.”  It would allow admission of a complainant’s first report of rape to someone else to explain why there was a delay, and it comes from the time when corroboration was a required element of rape.  It has no basis in the Rules of Evidence or Vermont case law, and the Supreme Court refused to adopt it.  Most courts that have considered the doctrine have rejected it, and Vermont joins them.

Lastly, the Supreme Court again takes a prosecutor to task for improper closing argument. (We’ve seen this lately; see Spaulding, Groce, and Reynolds, for example.)  The prosecutor here asked the jurors what it would be like to be the complainant, calling the girl poor and hungry.  Two problems.  First, there was no evidence the complainant was either poor or hungry.  Second, attorneys cannot ask jurors to put themselves in a complainant’s shoes because that kind of argument asks jurors to convict based on sympathy, not evidence.  It’s called a “Golden Rule” argument, and no courts allow it.

The Court also takes the prosecutor to task for including “inflammatory material from outside the record” about alleged abuse of other people, even though those allegations were irrelevant to the appeal.  Court threatens to strike that information if it sees it again.  

State v. Campbell, 2015 VT 50
Justice Eaton found that Condition 44 of the special sex offender conditions (which require prior approval by the p.o. as to where the defendant may work) could only be acceptable if the sentencing court makes sufficient findings of fact to justify such a broad delegation of authority but otherwise the condition must be struck. Condition struck and case remanded to let the trial court have a second chance to revise or remove the condition. [Note: The trial attorney had objected to the condition at sentencing and thus preserved the issue for appeal.] The Court, however, approved Condition 42 requiring polygraphs. Here the Court found that the condition was reasonably related to the defendant's conviction for sex assault and that "non-evidentiary use" will help ensure that the defendant is on track with his rehabilitation and therapy. While not deciding definitely whether a polygraph result could be used in probation revocation, the Court stresses that it is a permissible tool for probation officers to use to monitor compliance. Best of all: Justice Dooley concurs and warns the trial courts that Freeman, 2013 VT 25 holds that the routine acceptance of "standard conditions" without findings or modifications to tailor the condition to the individual defendant is inadequate and that the conditions on a form are just tools for the court for consideration, not pre-approved for automatic adoption. 

State v. Wayne Hutchins, 2015 VT 38
Court reversed Judge DMauro’s denial of a motion to suppress and dismiss. Defendant was stopped for allegedly failing to use his turn signal 100 feet before a stop sign. He had stopped at a stop sign and then put on his right turn signal. Using an aerial photograph of the scene in the opinion, the Court finds that the defendant was not turning but following the nature curve of the road after crossing an intersection. The Court finds that 23 V.S.A. 1064(d) requires more than just a turn of the wheel -- the driver must actually diverge from the natural course of the road he or she is travelling. Here, the driver rotated his wheel but did not turn off the road he was following. The presence of a bisecting road did not change his path into a turn. Suppressed and DUI dismissed. 

State v. Sean Campbell, 2014 VT 113
This case involved an appeal of a hold without pending a merits hearing on a VOP. Judge N. Corsones denied a motion to review the bail decision made at the arraignment in June. The court stated that it had explained then why it had decided to hold Sean Campbell without bail and that nothing in the motion changed the analysis. On appeal, three justices (Dooley, Skoglund and Robinson) reversed the decision, determining that a probationer is entitled to a bail review hearing (whether or not there is a constitutional right to bail or release) pursuant to the procedures set out in 13 VSA 7554. The Court specifically reviewed 7554(d)(2), which requires a bail review hearing within 5 days from the date application for review was made. The Court had previously held the same in an unpublished decision (State v. Houle, No. 2013-331, WL 9055945).

State v. Todd Hemingway, 2014 VT 48
VSC reversed a VOP because the State could not prove defendant had statutorily-required notice of his probation conditions. Client pled guilty to first-degree aggravated domestic assault for strangling client’s girlfriend. Plea agreement contained a special condition that client not abuse or harass complainant, which the State noted at the start of the change of plea hearing. After the hearing, defendant did not receive a certificate explicitly setting forth the conditions of probation, as is required by 28 V.S.A. 252(c). A few months later, complainant alleged defendant yelled at her, called her vulgar names, slapped her in the face, and grabbed her neck. At the violation hearing, the probation officer could not recall explaining the probation conditions to defendant and there was no probation agreement signed by defendant. Trial court held that defendant had actual notice of the probation condition preventing abuse or harassment of the complainant, despite the court’s failure to give defendant an explicit statement of his probation conditions, as required by 28 V.S.A. 252(c).

VSC held that the failure to give a defendant “a certificate explicitly setting forth the conditions upon which he or she is being released” rendered a subsequent probation revocation invalid. In a 3-2 case, the Court concluded that the proper remedy for failing to comply with 252(c) is to make the probation conditions unenforceable as to the defendant. The purpose of the notice requirement is to advise each defendant of the probation conditions he or she has been sentenced to, and the Court notes that the conditions often aren’t the judge’s order but a creation of the court’s computer system. Without the certificate, defendants won’t know their conditions.

Decision on Curfew Condition, Vt. Sup. Ct. Doc. No. 2014-169 (May 29, 2014).
Client was charged with two misdemeanors (reckless endangerment and possession of cocaine). Judge Carroll in Windsor County imposed conditions of release and, while he was out, the client picked up a VCR for possessing marijuana. The judge then imposed a 24-hour curfew. Defense filed a motion to amend the 24-hr curfew condition on May 12. The judge re-imposed the same, but this time with some exceptions (may be out of residence on Tues and Thurs from 12pm to 5pm, legal and medical appointments, verifiable employment, and pick up/drop off of children on Tues). Defense appealed.

Justice Skoglund agreed with defense arguments that the court failed to follow the Legislature’s admonition that it impose only the least restrictive combination of conditions that will reasonably assure protection of the public. The justice further noted that the statute also only allows “a physically restrictive condition …in extraordinary circumstances.” J Skoglund determined that the judge’s reliance on two prior failures to appear occurring a decade ago, the fact that the charges were only misdemeanors, and that he had already surrendered his firearms to law enforcement were not extraordinary circumstances. Condition amended to a curfew from 8pm to 6am.

State v. Dunn, Vt. Sup. Ct. Doc. No. 2014-113 (May 5, 2014).
Justice Robinson reversed Judge Van Benthuysen’s decision to deny defendant’s application for pretrial home detention under 13 VSA 7554b. Dunn was charged with grand larceny and assault and robbery with a dangerous weapon (allegedly holding up a local store using a knife). His background: 15 prior convictions (3 felonies, 1 crime of violence), 2 failures to appear, 2 VOPs, and immediately after committing the alleged offense, Daniel went home to Maine (although he returned voluntarily for arraignment). In this 13 VSA 7554 case, the judge set bail at $150,000 in a secured appearance bond w/ a case deposit of $15,000. Daniel couldn’t pay so he remained in jail. Post arraignment, Daniel requested that he be placed on home detention. The court denied the motion, determining that DOC does not have the ability to supervise someone released on GPS and cannot detect someone who may be absconding. There was no evidence presented and the prosecutor conceded on appeal that he could not think of any home detention cases in Orleans County to otherwise support an accurate understanding of the operation of the DOC program.

Justice Robinson, citing the recent decision in State v. Whiteway, 2014 VT 34 (which held that the court cannot second-guess how DOC administers the home detention program as the Legislature has clearly established a preference for it over pretrial incarceration), dismissed the judge’s reasoning. Instead, Justice Robinson held that the court must find the “least restrictive, reasonably effective method” of assuring defendant’s appearance and protecting the public. Whether home detention or cash bail is least restrictive is “in the eye of the beholder….[T]o this particular defendant, the home detention alternative is obviously preferable and functionally less restrictive.” Justice Robinson confirmed that the least restrictive analysis is based on “factors specific to the defendant’s case and circumstances.”

State v. Whiteway
Reversed and remanded. Whiteway is charged with second degree murder and has been in jail for over a year. She moved for pretrial home detention under 13 VSA 7554b. Court found that she had no significant priors, no history of violence, no history of failing to be supervised. But the DOC employee testified that the monitoring bracelet could be cut off with a pair of scissors and they wouldn't know it for up to 36 hours. Lower court found that the crime was a serious one and that home detention wouldn't reasonably assure her presence. On appeal, the Court said:

  • Home detention applies to 7553 cases as well as 7554;
  • The lower court can't count the seriousness of the offense twice and abused its discretion in failing to give any weight to the many positive factors in favor of release; and
  • The home detention statute does not require the court to second guess how DOC administers the program. The Legislature has articulated a preference for home detention where appropriate over pretrial incarceration.

In re Alvin Lee Stocks, 2014 VT 27
VSC reversed and remanded to allow petitioner to withdraw a plea because there was an insufficient factual basis to support that plea. Justice Robinson, writing for the unanimous Court, treated the matter as a straightforward case requiring a straightforward application of the great case State v. Yates, 169 Vt. 20 (1999). Even if Judge Hayes went over the facts with the defendant during the Rule 11 colloquy and allowed the State to read from the affidavit to support the charged crime, and even if the defendant stated on the record that he understood the alleged factual basis, this was not enough to satisfy the requirements of Rule 11(f): “[A]part from the guilty plea, defendant admitted nothing.” Rejecting the State’s argument that an adequate factual basis could be inferred, Justice Robinson held: “If a defendant’s understanding of the facts and law underlying the charges to which the defendant pleads were tantamount to a factual basis for the charges, Rule 11(f) and the part of Rule 11(g) requiring a record of the court’s inquiry into the “accuracy of a guilty plea” would be superfluous….defendant’s understanding of the charges and admissions providing a factual basis for the charges are distinct requirements.” Id. ¶ 20 (emphasis in original).

State v. Derrick Jones, Sup Ct Doc No. 2014-070 (Mar. 14, 2014) (unpub.)
Reversal of a hold without bail decision under 13 VSA 7553 in an attempted 2d degree murder case. Attorneys filed for a bail review hearing before Judge Maley. At the hearing, the State presented two witnesses: one who denied that he ever identified the defendant and the second, an officer, who said that the first witness did identify the defendant an hour after the alleged incident and after he was removed from the scene and in the hospital. The State argued this hearsay was admissible as an excited utterance and the judge agreed, finding that the evidence of guilt was great. Vermont Supreme Court Justices Reiber, Dooley and Robinson agreed the evidence was insufficient, holding that even if this was an excited utterance, hearsay, standing alone, is not sufficient to establish identity, citing State v. Robar, 157 Vt.387 (1991).

In re Ronald Combs
Court delineated the absolutely correct standard of evidence in a post-conviction relief case. It’s “a reasonable probability that the result would have been different,” which is less than the “preponderance of the evidence” standard.

State v. Paro, 2012 VT 53
Court unanimously held that an idling Chevolet in a parking lot of Northeast Foreign Cars, an area where there had been previous break-ins (the most recent being 9 months ago) fails to support reasonable suspicion for a warrantless stop. Reversing Judge Zimmerman in Windsor County, the Court held "any number of plausible reasons why defendant may have been in the parking lot, from fixing a contact lens to making a phone call to looking at a map to dropping off her truck for service."

"We recognize that police officers are trained to be suspicious and it is their job to investigate suspicious situations. But we must also be mindful of our right to wander where we please, when we please, without fear of a police seizure."

Reaffirmed Emilo, Welch and Warner.

State v. Stolte, 2012 VT 12 (Feb.10, 2012)
Three justices ruled that under 13 VSA 7553, DNA evidence is not “modifying evidence” for purposes of determining whether evidence of guilt is great. Client is charged with second degree murder of his girlfriend’s one year old child. After the initial bail review in which the court found that evidence of guilt was great, counsel asked for another bail review based upon Mitochondria DNA evidence of one of the hairs found on the child. Judge Eaton refused, saying that the DNA evidence was modifying evidence. The Court clarifies:  the point of excluding modifying evidence is to avoid judicial decisions on credibility, but non-testimonial evidence where validity is not disputed does not require a credibility determination and therefore is not excluded. Here, it was error to treat the DNA evidence as modifying evidence, if it is undisputed. The Court required the trial court on remand to determine whether the evidence would have changed its “initial determination on whether the state’s prima facie evidence of guilt was ‘great’ for purposes of holding defendant without bail.”

State v. Sanville, 2011 VT 34
The full Court declared the "violent or threatening behavior is not allowed at any time" probation condition is impermissibly vague and fails to inform a probationer of what actions might subject him to probation revocation. They found that Mr Sanville was "mouthy and obnoxious" during arguments with his landlord. At one point he said that he was going "to kick [the landlord's] butt." In one particularly heated exchange, Mr. Sanville told his landlord that he was going to burn the trailer down. Mr. Sanville got "huffy" and walked away, but at no time did he make a physical gesture towards the landlord. The Court held that "the idea that such behavior could properly be considered either 'violent or threatening' or that the language of the condition could fairly apprise probationer that he must curb his tongue in any heated exchange or risk further incarcertaion, is to stretch its meaning impermissibly." Mr. Sanville's "choice of words to express his anger and frustration" fail to violate this condition. The Court futher noted that if the condition prohibited "use of what for him may be standard vocabulary, it would be difficult to find it reasonably related to defendant's rehabilitation or necessary to reduce risk to public safety" such as to withstand constitutional scrutiny. 

State v. Randall Gokey, 2010 VT 89
Court to granted a new trial in an L+L with a child/habitual case. Three members of the Court found that Judge Carroll stepped way over the line and assumed the role of a witness in violation of V.R.E. 605 by conducting ex parte communication with the transporting officers and a pharmacy manager and then inserted that information into a competency hearing. The defendant had medical problems and a seizure disorder. On the second day of trial, he was taken by ambulance to the ER. The next day, having taken medication given at the ER, the defendant was completely sleepy, unresponsive and out of it. The defense requested a continuance and a competency hearing.  At this point, the judge faulted the defendant for taking his medication. During a break, the judge called a pharmacy manager ex parte and discussed the effect of medication which the defendant had taken. She also conducted ex parte communications with the sheriffs who said the defendant was fine during the drive.  After a 30 minute break during which the defense attorney was unable to contact her client’s doctors, the judge told the parties of her ex parte communications and then called the sheriffs to the stand and questioned them under oath. The judge decided that the defendant was faking. Held:  the judge violated V.R.E. 605 and became a witness, and when a judge violates V.R.E. 605 no further showing of prejudice is required. The Court also holds that the defendant was denied due process when the court denied counsel the opportunity to present medical evidence from a physician as to the medications and effect they may have had on the defendant. Reiber and Burgess dissented stating that the issue was waived because not raised below.

State v. Devoid, Jr.
Court granted a motion for judgment of acquittal in a attempted voyeurism case. As the Court agreed, there was no proof that the defendant, standing outside in the parking lot of his apartment building looking up at the complainant’s second story window in her shower could have seen any of her intimate areas. In fact, a photograph of the complainant standing in her shower (clothed!) demonstrated that her intimate areas were below the windowsill and thus, not visible to someone standing below her. Justice Skoglund and Johnson concur but add that, in their view the trial court’s decision to instruct the jury on a new charge–after the jury had begun deliberating–was also reversible error. During deliberations, when the jury wrote a note to the judge that they decided the defendant couldn’t see anything but might have been trying to, and asked what should their verdict be, Judge Joseph instructed them on a theory of attempted voyeurism, which was not charged or previously requested.

State v. Lee, September 10, 2010 (unpublished decision)
Katz "car up on blocks" bail condition on GNO case overturned by Dooley

State v. Delaoz, 2010 VT 65, July 16, 2010
This opinion contains some good and some bad new:

The Bad:  The Court found a search and seizure of a folded dollar bill was not the fruit of a Miranda violation. Defendant was in custody and questioned without Miranda. While held waiting confirmation of an outstanding warrant, defendant dropped a dollar bill, which the Court describes as folded into a small pouch. Defendant immediately picked it up and put it in his pocket and the officer requested the defendant to give it to him which he did. The Court finds that the dollar bill pouch or “bindle” was immediately recognizable to the officer as containing contraband and, with exigent circumstances justified the seizure of the dollar bill. A search of this pouch was justified because the dollar had been in plain view and the way the bill was folded proclaimed its contents “unambiguously.” The Court decides without discussion that a further search of the defendant in which the officer removed and opened bags from his pockets and a wooden box, which all contained drugs, was a reasonable search incident to arrest.

More Bad: Permitting the introduction of evidence and failing to give a limiting instruction was not error where the state introduced evidence that the officers had found a handcuff key in the defendant’s shoe. The evidence was relevant to a charge of FIPO and to possession of drugs because possession of a means to escape may be an indication of “a plan to deflect investigation” and supports an inference that the defendant knew his behavior was illegal.

Also Bad: Judge Carroll’s reliance at sentencing upon her own experience as a drug prosecutor to conclude that although the defendant was only convicted of possession, she believed he was selling drugs  was not error as judges are not required to make decisions in a vacuum and she also considered his past history and the current offense.

The Good: Justice Johnson reaches out to decide that a sentence of 4 years 11 months to 5 years violated 13 VSA 7031 (a) by imposing a fixed term. The Court finds that our indeterminate sentencing law promotes the goal of rehabilitation by allowing for parole. A 30 day interval between minimum and maximum “closes the window in which the parole board can exercise its discretion” thus thwarting the rehabilitative purpose behind the sentencing and parole laws. The Court did not decide where the line should be drawn. Justices Dooley and Burgess dissent on the grounds that the Appellant did not raise this issue.

State v. Birchard, 2010 VT 57, June 24, 2010
A fabulous and unanimous decision by the Vermont Supreme Court, J. Burgess writing for the Court. An informant was found to have 2 lbs of marijuana. Working with the police, the informant wore a wire. The cops put the seized marijuana in the informant’s backpack and, after sweeping his car, put him and the pack in the car. The informant drove to the Wendy’s parking lot in Newport where cops observed him and listened in over the wire. Defendant was in the informant’s car and after a code word passed, the cops zoomed in and arrested Defendant. The arresting officer observed a new backpack in the car. The pack was zipped closed. The officer immediately opened the pack, which revealed the marijuana the police had seized from the informant. Judge Bent of Orleans District Court held that the search of defendant’s closed pack violated Article 11. But at trial, the court nullified its suppression order by carving out a state property exception similar to the inevitable discovery rule and permitted the state to introduce the marijuana and to explain all facts surrounding the pack, as long as the prosecutor did not “identify the marijuana as having been contained in defendant’s backpack based upon the officer’s view of it inside the bag after opening the backpack zipper.” David argued on appeal that because the court ruled the initial seizure was unlawful and did not identify grounds for an exception to the warrant requirement recognized under Vermont law, the contents should have been suppressed. The Court agreed. In a strongly worded decision, and in a detailed survey of its favorable Article 11 law, the Court reaffirmed the fundamental requirement that “police cannot open and search a closed container when there is ample opportunity to obtain a warrant…. Even where probable cause exists to seize a closed container, that does not override the requirement for a warrant[.]” ¶ 13. The state argued that defendant had no expectation of privacy in his pack b/c his activities took place in a public lot. The Court responded: “Evidence gathered by voice-monitoring of a private conversation or surveillance of parking lot or driveway may constitute probable cause to arrest, but it does not create an exception to the warrant requirement for a closed-container search.”

The state urged the Court to consider new exceptions to the warrant requirement: a state property/inevitable discovery exception, a search-incident-to-arrest of a closed container to discover evidence of crime charged exception, and finally, a driver’s consent-to-search his car includes contents of his passenger’s closed containers exception. The Court held: “We have not adopted many exceptions to exclusion under Article 11, nor do we adopt a new one today.” ¶ 19. The Court held that permitting the officers to testify to the presence of marijuana on the passenger floor, which connected the drugs to defendant’s location in the car, did not remove the fruit of the invalid search sufficiently from the jury. Reversed and remanded for new trial.

State v. McManis, 2010 VT 63, June 24, 2010
A unanimous Court agreed that defendant’s motion to suppress marijuana plants and drug paraphernalia seized at his home should have been granted because the search warrant issued lacked probable cause. The Court limited its review to the four corners of the warrant application and excluded consideration of testimony at the later suppression hearing. The sheriff had written in the application that the CI told him that the CI bought marijuana from defendant at his home in Aug 2007 and saw a bag of marijuana, drug paraphernalia, and a marijuana plant growing in the closet. The sheriff also wrote that the CI said that friends said that they saw marijuana plants growing in defendant’s basement around Sept 2006. The sheriff then wrote that the CI had provided info on other drug transactions in the past, which the sheriff had confirmed. Upholding State v. Robinson and State v. Goldberg, the Court found that the CI’s statements lacked reliability, as required by VRCrP 41(c) and the Aguilar-Spinelli test. Under the rule, a CI’s hearsay statement must be both “credible” and have “a factual basis.” Because the Court did not find the CI credible, it did not consider whether the info had a factual basis. Two ways to demonstrate credibility: (1) CI was inherently credible; or (2) specific information provided by CI in this instance was credible. The Court determined that the sheriff’s vague claim that CI had provided info in the past that was accurate lacked sufficient detail (ie. there was no mention whether past info had led to drug charges or convictions). The Court also determined that the CI’s info was not credible in this instance b/c there was only corroboration of innocent details (like defendant’s address and utility bills). Although the state argued the bills followed the marijuana plants’ growing season, the Court said there was no context provided to explain why an indoor growing season necessarily followed summer months and why the rise in electricity use in the summer couldn’t otherwise be explained by innocent activity, like use of an air conditioner. The Court also determined that the electric bills actually contradicted the CI’s claims. Reversed and dismissed.

State v. Justin Ford, 2010 VT 39, May 14, 2010
In a 3-2 decision, the Court reversed conditional pleas to possession of marijuana and narcotics after determining that the Orange County court should have granted a suppression motion based on an illegal search of a house w/o a warrant. The prosecutor argued that a warrantless search of the curtilage of the defendant’s home (walking around to the back of the house and peering into a lighted basement window, where marijuana plants were growing) was lawful because police believed they needed to provide immediate emergency aid to someone (the emergency aid exception to the warrant requirement). But the genesis of the emergency was a 911 call, not made by the defendant, where the caller claimed to be trapped in a car over 40 miles from the home searched by police. When police went to the claimed scene of the accident there was no evidence of an accident. The caller had not claimed any physical injuries. The 911 caller’s contact info was, of course, already in law enforcement databases, and an officer was dispatched to the last known address, which was where the defendant was now living. When police arrived at the home, there was no evidence that anyone was home or that anyone had been there recently: the house was dark; a car was snowed-in in the driveway; and there were only old footprints in the snow. The officer knocked on the front door and did not get a response. The Court, applying an objective standard, held this was not enough to conclude that there was an emergency under the warrant exception. There was also no reasonable connection between the alleged location of the emergency and the home, located miles away. Because warrantless searches are presumed “unreasonable and a constitutional violation” under the Vermont constitution and because the prosecutor failed to meet its burden under the emergency aid exception, the warrantless search was illegal.

Nichols et al v. Hofmann, 2010 VT 36, April 30, 2010
The Court ruled that the inmate phone statute actually means what it says: out-of-state prisoners are entitled to a debit calling system to call their friends and family in Vermont. And, they are also entitled to the seven free stamps that in-state prisoners receive pursuant to the lowly rational basis test (or at least they will be after remand).

State v. Bohannon, 2010 VT 22, March 11, 2010
Vermont Supreme Court rules that costs arising from a VOP do not fall within the restitution statute, 13 VSA 7043. DOC claimed to be the victim of Defendant’s decision to flee to Washington and subsequently sought restitution for the cost of extraditing defendant back to Vermont for probation violation/revocation proceedings. Lamoille County Judge Cook agreed and after finding that defendant had violated probation by leaving VT without permission, ordered him to pay $4,400 in restitution. The VSC reversed and held that DOC could not recoup this expense through the restitution statute because the expenses were not a direct result of the crime for which defendant was convicted and sentenced. Because a VOP is not a separate crime, it also cannot trigger restitution. The Court made clear that reinstating the original sentence following a VOP does not transform the VOP and the underlying criminal offense into the same act. Reviewing State v. Lewis, 167 Vt. 533 (1998), which upheld restitution awarded to DOC for extradition costs incurred after defendant failed to return from a work furlough program, the Court clarified that Lewis involved a separate crime (escape) which triggered the restitution statute.

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