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State v. Tetreault

Supreme Court of Vermont

December 22, 2017

State of Vermont
Philip M. Tetreault

         On Appeal from Superior Court, Windham Unit, Criminal Division April Term, 2017 Katherine A. Hayes, Judge.

          David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          William W. Cobb of Law Offices of William W. Cobb, PLC, St. Johnsbury, for Defendant-Appellant.

          Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Dooley, J. (Ret.), Specially Assigned

          SKOGLUND, JUDGE.

         ¶ 1. Defendant Philip Tetreault appeals his convictions for heroin trafficking and conspiracy to sell or deliver a regulated drug. He argues that the trial court erred in denying his motion to suppress evidence gathered from his vehicle during a traffic stop. We affirm.

         ¶ 2. The trial court made the following findings in its decision denying defendant's motion to suppress. On October 21, 2014 at 10:04 a.m., a Vermont State Police trooper was parked facing the southbound lane of Interstate 91 in Guilford, Vermont, when he saw a vehicle travel past him at eighty miles per hour in a sixty-five-mile-per-hour zone. He pulled out to stop the vehicle. The car stopped very abruptly on the highway shoulder, and the reverse lights flashed on.

         ¶ 3. The trooper saw the driver's head move to the right of his seat and disappear from view at least twice. The trooper became concerned that the driver was attempting to conceal contraband or get a weapon. He approached the vehicle on the passenger side and spoke to defendant, who was the sole occupant of the vehicle.

         ¶ 4. Defendant's hands were shaking as he handed over a plastic case containing his registration and insurance documents. The trooper handed the case back to defendant and asked him to remove the relevant documents. As defendant did so, his hands continued to tremble. The trooper noticed a GPS unit, a cellular telephone that he believed was a TracFone, and an air freshener in the vehicle. The trooper testified that many individuals involved in drug trafficking use prepaid TracFones because they are easy to dispose of and that air fresheners are often used to mask the odor of drugs in a vehicle.

         ¶ 5. The trooper asked defendant where he was headed. Defendant said he was driving to Waterbury, Connecticut, from his home in Lowell, Vermont, to buy an engagement ring. The trooper found defendant "overly nervous for a routine traffic stop." After checking defendant's license status, he gave defendant a written warning and told him to slow down. Defendant's hands were still shaking when the interaction with the trooper ended. The trooper testified that drivers who are nervous during a traffic stop usually calm down significantly by the end of the interaction, but defendant remained excessively nervous.

         ¶ 6. After the stop, the trooper called a Newport City police officer who knew defendant. The Newport officer told the trooper that about eight months earlier, a confidential source had told him that defendant was involved in selling pills and heroin, and would travel to Massachusetts or Connecticut to pick up drugs. The trooper used an Internet-based mapping program to determine that it would take approximately one hour and forty-seven minutes to travel from Brattleboro to Waterbury, Connecticut. It would take forty-five to forty-eight minutes to travel from Brattleboro to Holyoke, Massachusetts, which is a known source of drugs entering Vermont.

         ¶ 7. Later the same day, the trooper was parked alongside the northbound lane of Interstate 91 in Guilford. At 12:52 p.m., he observed defendant's vehicle travel past him. He followed defendant and paced defendant's vehicle, determining it was traveling between seventy and seventy-five miles per hour, or five to ten miles over the speed limit. The trooper pulled defendant over. He saw defendant lean over toward the passenger side of the car. Before he stopped defendant's car, the trooper radioed for a K-9 unit to come to the scene, as he was now suspicious that defendant was involved in drug-related activity.

         ¶ 8. As the trooper approached the vehicle, he again observed the driver moving around as if he was hiding or accessing something. Defendant was alone in the vehicle. The TracFone, air freshener, and GPS unit were still in place. The trooper again requested defendant's documentation, and told defendant that he stopped defendant for speeding. The trooper asked if defendant had made it to Waterbury. Defendant told the trooper that he had not gone to Waterbury, but had gone to the Holyoke Mall instead. The trooper asked defendant if he had purchased the engagement ring. Defendant answered that he had not, because it was more expensive than he anticipated. While speaking to defendant, the trooper noticed what he believed to be marijuana "shake" around the center console. He did not take the suspected marijuana into evidence. At the suppression hearing, defendant introduced a photo that appeared to show signs of chewing tobacco use in the vehicle, as well as a can of chewing tobacco and a spit can.

         ¶ 9. The trooper told defendant that he would write defendant another warning for speeding, and asked if defendant would mind exiting the vehicle and coming to his cruiser while he did so. The trooper told defendant he did not have to if he did not want to. Defendant exited the vehicle, and with defendant's consent, the trooper patted down his exterior clothing before both men sat in the front seats of the cruiser.

         ¶ 10. The trooper asked defendant about his trip while writing the warning. The trooper noted that defendant was nervous, uncertain, and had a quivering voice. Defendant identified two stores that he visited at the Holyoke Mall. He told the trooper that he had learned that his daughter was ill, so he could not go all the way to Waterbury as planned. When asked by the trooper whether he had gone to Holyoke to pick up drugs, defendant responded, "No, I swear on my daughter's life." The trooper asked defendant to roll up his sleeves and tip his head back so the trooper could look for signs of drug use. Defendant complied.

         ¶ 11. The trooper then asked defendant, "Do you have any objections to me searching the car? Would that be all right with you?" Defendant responded, "Yeah, you can." The trooper said, "That's okay?" Defendant replied, "Is there probable cause, I mean-" and the trooper said, "No." Defendant said that he didn't understand why the trooper wanted to search the car. The trooper told him that his story was "shaky in the beginning." Defendant said, "I know my rights and I would prefer if you would get a warrant if you're gonna search." Defendant offered to open the glove box for the trooper. The trooper said he was interested in searching "the whole shooting match." Defendant then talked about participating in the search of the car and the trooper said, "I mean me search, not us. Is that okay?" Defendant responded, "Yeah."

         ¶ 12. The trooper then presented defendant with a consent card. He told defendant that he would read it to defendant and allow defendant to read it himself, and then defendant could decide whether to allow the search. Defendant responded, "Okay." The trooper read the entire card to defendant, then gave the card to defendant and asked him to read it, and if he agreed, to sign the card. Defendant signed the consent card without asking any questions. The card stated that defendant "freely" gave his permission to the trooper "to conduct a complete search" of the vehicle and its contents, and stated "I understand I do not have to allow this. No threats or promises have forced this consent."

         ¶ 13. During this exchange, the K-9 unit requested by the trooper had arrived. The trooper and defendant exited the cruiser, and the trooper began searching defendant's vehicle. He found a pill bottle containing marijuana and a smoking pipe. The trooper decided to have the dog sniff the vehicle.

         ¶ 14. The trooper asked defendant, "You all right with us running the dog through?" Defendant responded, "I don't see the need." The trooper told him, "Sometimes I miss things." Defendant said, "I'd rather just go home. . . . Why can't we do that?" The trooper said, "We can. I just want to make sure I didn't miss anything. Is that okay if the dog goes through?" Defendant responded, "Yeah. Run her though." Defendant asked if he could sit in his car, and the trooper said he could not do so while the dog was inspecting the car. Defendant then said that he thought the trooper needed a warrant for the dog to go through the car. The trooper said he ...

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