On Appeal from Superior Court, Bennington Unit, Criminal Division Nancy Corsones, J.
Robert F. Plunkett, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Bridget Denzer, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.
Robert Appel, Burlington, for Amicus Curiae Vermonters for Criminal Justice Reform.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. Defendant Shamel L. Alexander appeals from his conviction for trafficking heroin in violation of 18 V.S.A. § 4233(c). He argues that the trial court erred when it denied his motion to suppress evidence obtained as a result of an unlawful seizure that was not supported by reasonable suspicion. We agree and reverse.
¶ 2. The trial court made the following findings in connection with defendant's motion to suppress. On July 11, 2013, Detective Urbanowicz of the Bennington Police Department (BPD) was driving an unmarked police vehicle in Bennington when a taxicab pulled up next to him on his right side and the driver motioned for him to roll down his window. When he did so, the cab driver asked Detective Urbanowicz for the location of the "China Buffet." There is no Chinese restaurant in Bennington called China Buffet. Detective Urbanowicz noted that according to the information displayed on the cab, it haled from Albany, New York. On the basis of his work with the Southern Vermont Drug Task Force, the detective was aware of information that heroin and crack cocaine dealers from out of state were using cabs and buses to travel to Bennington to distribute drugs. Specifically, he was aware that the Yankee Trails bus stop, located next to a Chinese restaurant on Main Street in Bennington that had always been called the Lucky Dragon, was a place where both controlled and street drug transactions had occurred.
¶ 3. Detective Urbanowicz was aware that the task force had developed information that a large African American male, with the nickname "Sizzle, " traveled to Bennington in the company of a woman named Danielle and a man named Tracy, both known to Detective Urbanowicz to deal drugs. Detective Urbanowicz noticed a large African American male sitting in the front passenger seat of the cab and thought he might be "Sizzle, " though he was not certain.
¶ 4. Coincidentally, Corporal Hunt, also of the BPD, drove by in uniform and in a marked police cruiser. Detective Urbanowicz mentioned to Corporal Hunt through the window that the cab "would be a good stop if you could find him doing something wrong." Corporal Hunt was aware of the same information as Detective Urbanowicz relating to drug investigations in Bennington and was aware of "Sizzle's" general description.
¶ 5. Corporal Hunt saw that the cab had a GPS device attached to the interior of the front windshield and stopped the cab for violating 23 V.S.A. § 1125, which prohibits driving with an obstructed windshield. The cab driver identified himself as the owner and operator of the cab, and provided his license, registration, and proof of insurance. The passenger identified himself as Shamel L. Alexander, gave his date of birth, and indicated that he was from Brooklyn, New York. He said he was going to the Chinese restaurant.
¶ 6. Corporal Hunt ran records checks on both the driver and passenger and saw that there were no warrants for either. The record check also revealed Alexander had a prior misdemeanor arrest from Dover, Vermont in 2010, had an alias: "Snacks, " and had a listed address in New York.
¶ 7. At that point, Corporal Hunt asked the driver to step out of the cab so he could discuss the situation with the driver. Corporal Hunt proceeded to ask the driver questions about defendant and the circumstances of his ride to Bennington. The driver revealed that Alexander had been driven to Bennington several times by different cab drivers in the past, is generally picked up at the bus station in Albany, and did not have a specific address for his destination but wanted to be taken to the "Chinese Buffet" on Main Street. After this discussion, Corporal Hunt asked the driver for permission to search the cab.
¶ 8. Corporal Hunt then approached Alexander, who told Hunt that he had family in Bennington and listed several people with the last name of Alexander. Corporal Hunt, who has lived in the community for a number of years, did not recognize the names. Defendant told Corporal Hunt that he was going to meet his grandmother on School Street. Corporal Hunt is familiar with many of the families on School Street and knew of no older woman with the last name of Alexander who lived on School Street. Corporal Hunt opined that it was odd that defendant would go to a restaurant a short distance from ...