On Appeal from Superior Court, Washington Unit, Criminal Division Thomas A. Zonay, J.
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellant.
Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. Defendant Ivan Alcide was charged with possession of heroin and cocaine and sought to suppress all evidence of drugs seized from his vehicle after a police dog indicated the presence of drugs. The trial court found that the contraband was obtained through the illegal expansion of the scope of a motor vehicle violation stop into a criminal drug investigation, suppressed the evidence, and dismissed the charges. The State of Vermont appeals the trial court's grant of defendant's motion to suppress and dismiss. On appeal, the State contends that a minimal delay following the completion of a traffic stop for a dog sniff is reasonable under federal and state law and, in the alternative, that the trial court committed plain error in excluding evidence based upon an illegal detention when the evidence was unrelated to the detention itself. Defendant has filed a motion to dismiss this appeal on the grounds the State untimely filed its notice of appeal. We reject defendant's argument and conclude we do have jurisdiction over this appeal. However, in light of the U.S. Supreme Court's decision in Rodriguez v. U.S., ___ U.S. ___, ___, 135 S.Ct. 1609, 1612 (2015), which established that the Fourth Amendment does not permit a dog sniff conducted after the completion of a traffic stop that is "prolonged beyond the time reasonably required to complete the mission" of issuing a ticket for the violation, we affirm the trial court's decision to dismiss the case against defendant.
¶ 2. The trial court's findings of fact are uncontested. Defendant's automobile was stopped on August 11, 2012 at around 5:00 P.M. in Montpelier. The corporal who stopped defendant was in his cruiser with a drug-sniffing dog when he heard radio transmissions between the dispatcher and another police officer. That officer requested information about the registration of defendant's vehicle; the dispatcher informed the officer that the registration was valid but defendant's license was under suspension. The corporal had received information from the Federal Bureau of Alcohol, Tobacco, and Firearms (BATF) that defendant was a drug dealer in central Vermont, though "no specific information about [defendant's] alleged activities was given, nor was there information given to establish that any of the underlying information . . . was reliable." Nevertheless, based on the information from BATF and the fact that he had a drug dog and was "always looking to make drug arrests, " the corporal requested information as to defendant's whereabouts and went to locate him.
¶ 3. Subsequently, the corporal saw defendant's vehicle traveling towards him on Vine Street, a public highway, and recognized defendant as the driver. Before the corporal could stop defendant's vehicle, defendant pulled into the driveway of a residence that the corporal knew belonged to the family of a deceased police officer. He called out to defendant, who told him he was looking for the house of a woman, whose name the officer recognized as a person who used drugs and was associated with known drug users, even though he "had never arrested her for any drug offenses, nor was he aware of drugs having ever been found on her."
¶ 4. The corporal directed defendant to sit in his vehicle. After obtaining defendant's license and registration information, he contacted dispatch and confirmed that defendant's license was in fact suspended. He also called an agent at BATF, who informed him that defendant was "on the front line of dealing drugs" in central Vermont.
¶ 5. When the corporal returned to defendant's vehicle, he informed defendant he would be mailing a ticket for operating a motor vehicle while under suspension. He then asked if there were any drugs in the car. Defendant denied having drugs and, when asked, denied permission for a search of the vehicle. The corporal had not observed any drugs on defendant's person or within the vehicle, nor had he seen anything to indicate defendant was under the influence of illegal drugs during the stop itself. The corporal returned to his cruiser and released the drug dog and walked him around defendant's vehicle. Defendant was not in the vehicle when the dog circled the vehicle. The dog alerted to the presence of drugs upon reaching the driver's side door. The corporal informed defendant of the alert; he again asked for permission to search, and defendant denied permission. Approximately seven to eight minutes had passed from the time the corporal stopped defendant until he deployed the drug dog.
¶ 6. The corporal seized and transported defendant and his vehicle from the scene in order to apply for a search warrant. After conducting a search pursuant to an issued search warrant, the corporal located cocaine and heroin within a first-aid box in the vehicle, resulting in the instant charges.
¶ 7. Defendant moved to suppress all evidence seized from his vehicle on the grounds that the drugs were obtained as a result of an illegal expansion of a motor vehicle violation stop into a criminal drug investigation. Following a hearing, the trial court issued a ruling granting the motion. The trial judge held that while the initial traffic stop was justified by the corporal's observation that defendant was operating a vehicle with a suspended license, the officer lacked a "reasonable, articulable suspicion of drug activity" sufficient to support the drug investigation and deployment of a canine as required by Article Eleven of the Vermont Constitution. See State v. Cunningham, 2008 VT 43, ¶ 39, 183 Vt. 401, 954
A.2d 1290 (Skoglund, J, concurring). The trial court noted that the officer relied upon "generalized information for which reliability was not established" in deciding to expand the stop into an investigation, and that the "hunch" that defendant was involved in drug activity "simply [did] not rise to the level sufficient to form the basis for any reasonable suspicion" of present drug activity. The trial court also concluded that the stop "extended beyond the time reasonably necessary . . . to address the traffic offense, " a finding compounded by the fact the corporal asked for permission to search the car and deployed the drug dog after informing defendant he would mail a ticket for the traffic violation, the point at which he presumably accomplished the purpose of the stop.
¶ 8. On appeal, the state "does not take issue" with the trial court's determination that the corporal lacked a reasonable, articulable suspicion of drug activity. Instead, the state raises two arguments: (1) that a de minimis delay following completion of a traffic stop is reasonable under the Fourth Amendment, and defendant waived any state constitutional challenge; and (2) that the trial court committed plain error by excluding evidence based upon an illegal detention of defendant when the evidence would have been discovered even if the detention did not occur.
¶ 9. We first must consider defendant's argument that this appeal is not properly before us because the State's appeal was untimely. Although the trial court's decision was entered on July 3, 2014, the State signed and filed its Vermont Rule of Appellate Procedure 4 notice of appeal with the trial court on September 8. Defendant argues that this filing was too late. In response, the State argues that although the correct notice of appeal was not filed until September, the prosecution had filed a motion for permission to appeal an interlocutory ruling under V.R.A.P. 5 on July 10, which was granted by the ...