Appeal from Superior Court, Windham Unit, Criminal Division
A. Hayes, J. (motions to suppress and dismiss); Michael R.
Kainen, J. (final judgment)
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, and Eaton, JJ.,
and Pearson, Supr. J. (Ret.), Specially Assigned
1. Defendant, Nichole Dubaniewicz, appeals her conviction for
one count of possession of one gram or more of heroin, under
18 V.S.A. § 4233(a)(3). We find that the trial court
erred in denying defendant's motion to suppress, and
therefore we reverse.
2. Based on the evidence developed at the hearing on
defendant's motion to suppress and to dismiss, the
following series of events was detailed. On December 4, 2015,
a Vermont State Police Detective Sergeant was driving
northbound on I-91 in his unmarked cruiser in the Town of
Guilford when he clocked a car driving southbound on the
interstate at eighty-three miles per hour. Because the car
was speeding, the sergeant turned around, pulled the car
over, and approached the passenger's side. There were two
individuals in the car-the driver was J.S., and the passenger
was defendant. During the stop, the sergeant noticed that
both defendant and J.S. appeared to be pale and withdrawn,
and that they were wearing heavy winter coats and hats.
Further, he saw what he believed to be intravenous track
marks on the back of defendant's hands and a heavy, rapid
carotid pulse on the side of defendant's neck. These
observations led him to believe that J.S. and defendant might
have been "dope sick."
3. Although J.S. was the driver and registered owner of the
car, defendant did most of the talking during the stop.
Defendant told the sergeant that she and J.S. were driving to
a Big Y grocery store in Massachusetts because they liked the
cakes the store sold. After checking J.S.'s driver's
license and registration, which showed him to be a New
Hampshire resident, the sergeant issued J.S. a written
warning for speeding and for having one brake light out and
released the car from the stop.
4. Based on his observations of J.S. and defendant during the
stop, which led him to suspect they were "dope
sick," and his awareness of a recent trend in drug
transactions occurring in Greenfield, Massachusetts, the
sergeant took further investigative steps. He determined that
the nearest Big Y grocery store was in Greenfield and
calculated what time he could expect to see the car on its
return from this Big Y grocery store.
5. The sergeant also contacted a police officer with whom he
had conducted several previous drug investigations. This
police officer referred the sergeant to a second police
officer. This second officer was familiar with both J.S. and
defendant and knew that they were associated with each other.
Further, the second officer told the sergeant that he had
interviewed defendant the previous July and that defendant
had told the officer that she was addicted to heroin. The
second officer also told the sergeant that there were rumors
that J.S. was involved in distributing heroin and that he
believed that J.S. had recently been charged with a
drug-related offense in Newport, New Hampshire. However, when
the sergeant contacted the Newport Police Department, they
did a record check and found no drug-activity arrests of J.S.
6. Around the estimated time the sergeant had calculated, he
saw the same car traveling northbound on I-91. He caught up
with the car, paced it, and noted that it was traveling at
seventy-three miles per hour and was following the vehicle in
front of it at an unsafe distance. He pulled the car over for
a second time. This time, defendant was driving the car and
J.S. was in the passenger seat. The sergeant observed that
both parties appeared more comfortable, had shed their winter
jackets, and now had constricted pupils. He again observed
the alleged track marks on defendant's hands.
7. At that point in time, the sergeant asked defendant for
her documents and ordered her to exit the vehicle and come
back to his cruiser. While walking from the car to the
cruiser, the sergeant observed defendant's mannerisms,
ability to walk, dexterity, speech, and other physical
displays that might indicate whether she was under the
influence of a drug that would impact her ability to drive.
He noticed no slurring of words and observed defendant had no
trouble walking or understanding what he was saying to her.
He did not ask her to perform any field sobriety tests. When
questioned at the motion hearing why he did not ask defendant
to perform any field sobriety tests, the sergeant explained
that he saw no need: "Q: So to be clear, your
observations from the moment she exited her vehicle to the
moment she got into your vehicle did not warrant any further
investigation as to whether she was under the influence. A:
It didn't warrant having her go through field sobriety
testing." Further, at trial, the sergeant testified that
there came a point when he and defendant were speaking in the
cruiser that he "felt comfortable with [defendant] not
8. While in the cruiser during the second stop, defendant
told the sergeant that the grocery store did not have any
cakes, that she lived with J.S. and a daughter, and that she
was a para-educator at a Vermont school. She explained that
she was not working that day because she had broken a tooth
the night earlier and called in sick. The sergeant radioed
for a canine unit to respond to the scene. He estimated that
it took approximately forty minutes for the dog to arrive
following the stop. Following canine investigative work which
signaled the presence of drugs, the sergeant seized the car
and got a search warrant. The car was towed back to the
barracks, where it was searched. The sergeant found two
coupons for Suboxone, a drug commonly used to treat opiate
addition, in J.S.'s wallet. None of the keys provided by
defendant and J.S. would open the glove box, so it was ...