Appeal from Superior Court, Addison Unit, Criminal Division
Helen M. Toor, J.
Tartter, Deputy State's Attorney, Montpelier, for
Matthew Valerio, Defender General, and Joshua S. O'Hara,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Defendant Robert Scales appeals the trial court's
denial of his motion to suppress and dismiss and his motion
to dismiss for lack of a prima facie case. We reverse.
2. On the evening of February 3, 2017, a police officer with
the Vergennes Police Department pulled over a car for
speeding. Defendant was a passenger in the back seat of the
car. The officer approached the car and requested the
driver's license, car registration, and proof of
insurance. As the occupants looked for proof of insurance,
the officer talked with them about where they had come from,
where they were going, and how they knew each other. The
police officer was suspicious of criminal activity because he
knew that the road was a regular drug-trafficking route
between New York and Burlington. The car had New York license
plates, and the occupants said they were headed to
3. The officer detected a faint odor of burnt marijuana and
asked who had been smoking. The front-seat passenger said he
had smoked marijuana earlier in the day, but not in the car.
The officer then asked for consent to search the car for
illegal drugs. The officer explained that the occupants could
deny consent, in which case he would walk around the car with
his drug-detection dog. He described his dog as an
"aggressive alert dog" that might scratch the car
and damage it during the search. He informed them that he
could also request a search warrant, which the court might or
might not grant. The driver agreed to allow the search and
signed a written consent form; the other occupants, including
defendant, neither objected to the search nor gave
4. The occupants got out of the car prior to the search. The
officer asked whether there was anything in the car that
anyone did not want searched, and the occupants did not
identify anything. The officer then searched the car,
including a bag in the trunk. In the bag, the officer found
white powder wrapped in a bag and several wax bundles, which
he believed to be cocaine and heroin. The bag also contained a
parking ticket associated with the driver, who was the only
woman in the car, and female clothing. All three occupants
denied that the items were theirs. They were all arrested and
charged with possession of heroin and cocaine and heroin
trafficking. At some point after arrest, a search warrant was
obtained for the containers in the vehicle.
5. Each occupant filed a motion to suppress and dismiss.
Defendant also filed a motion to dismiss for lack of a prima
facie case pursuant to Vermont Rule of Criminal Procedure
12(d). At a hearing to address these motions on January 2,
2018, the court heard testimony from the police officer and
received into evidence a video of the stop. The State did not
admit as evidence the affidavit supporting probable cause,
which included information from the police interviews of the
other occupants. On January 11, 2018, the court issued a
written decision denying the motions to suppress and dismiss
and defendant's motion to dismiss pursuant to Rule 12(d).
6. Two months later, defendant entered a conditional plea
agreement with the State. Defendant pled nolo contendere to
one count of heroin trafficking and received a sentence of
five years to five years and one day. The State dismissed the
other charges. The plea agreement preserved his right to
appeal the trial court's denial of his motion to suppress
and dismiss and the motion to dismiss pursuant to Rule 12(d).
Defendant timely appealed.
7. Defendant makes two challenges on appeal. First, he argues
that a permissive inference alone is insufficient evidence of
knowing possession to overcome the presumption of innocence,
and therefore the court erred in denying the motion to
dismiss for lack of a prima facie case. Second, defendant
contends that the consent in this case was not voluntary, and
therefore the court erred in denying the motion to suppress
and dismiss. We agree that the court erred in denying the
motion to dismiss for lack of a prima facie case. Because we
reverse on this basis, we need not reach defendant's
other claim. State ...