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State v. Dubaniewicz

Supreme Court of Vermont

March 1, 2019

State of Vermont
Nichole L. Dubaniewicz

          On Appeal from Superior Court, Windham Unit, Criminal Division

         Katherine A. Hayes, J. (motions to suppress and dismiss); Michael R. Kainen, J. (final judgment)

          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, and Eaton, JJ., and Pearson, Supr. J. (Ret.), Specially Assigned

          SKOGLUND, J.

         ¶ 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 During the stop, the sergeant noticed that both defendant and J.S. appeared to be pale and withdrawn, and that they were wearing heavy winter coats and hats.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."[1]

         ¶ 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 being impaired."

         ¶ 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 ...

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