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State v. Scales

Supreme Court of Vermont

February 1, 2019

State of Vermont
v.
Robert Scales

          On Appeal from Superior Court, Addison Unit, Criminal Division Helen M. Toor, J.

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

          Matthew Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          REIBER, C.J.

         ¶ 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.

         I. Facts

         ¶ 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 Burlington.

         ¶ 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 affirmative consent.

         ¶ 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.[1] 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 ...


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