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State v. Haynes

Supreme Court of Vermont

June 28, 2019

State of Vermont
Wesley Haynes, Tristan Harris and Dennis Magoon

          On Appeal from Superior Court, Caledonia Unit, Criminal Division Robert R. Bent, J.

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

          Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant Haynes, Allison Fulcher, Barre, for Defendant-Appellant Harris, and Michael Rose, St. Albans, for Defendant-Appellant Magoon.

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

          PER CURIAM.

         ¶ 1. Defendants move to reconsider this Court's dismissal of their interlocutory appeals because defendants had not demonstrated why they could not seek review by entering a conditional guilty plea. Defendants argue that they should not be required to enter a conditional guilty plea instead of seeking interlocutory review. We agree and conclude that a defendant is not required to demonstrate that a conditional guilty plea is not practicable or available before seeking interlocutory review. A defendant in a criminal action may seek interlocutory review if the requirements of Vermont Rule of Appellate Procedure 5 are met. In this case, because the criminal division did not explain the basis for granting interlocutory appeal, we dismiss the interlocutory appeals without prejudice to defendants refiling after the trial court issues a decision.

         I. Factual Background

         ¶ 2. Following an investigatory stop, defendants were all charged in different dockets with possession of heroin and defendant Magoon was charged with possession of a concealed weapon while committing a felony. In November 2018, defendants moved to suppress evidence. In connection with that motion, the court found the following. In April 2017, Officer Tetreault of the Hardwick Police Department was on patrol after midnight with his dog, who is trained to detect controlled substances. He observed two vehicles parked in a plaza with businesses that were not open at that hour; one was parked in a shadowed area of the lot. He entered the lot and observed four males in the car. He got out of his cruiser and spoke with the men. They stated that they stopped to relieve themselves, but it was unclear why they remained in the lot. They claimed to be going from Newport to Montpelier, but they were not on the most direct route between those locations. The officer observed that the front passenger was nervous and "twitchy," repeatedly moving his hands in and out of his pockets and rocking back and forth. The officer thought the passenger appeared to be under the influence of narcotics. The officer requested identification from the men in the car, which all but one of them provided. The officer then went back to his cruiser and requested backup due to safety concerns.

         ¶ 3. In response to the officer's inquiry, the men denied having guns or drugs in the vehicle. Three men stated they were from Vermont, and the fourth man said he was from Springfield, Massachusetts. The officer testified that this is a known supply center for heroin. The officer found the situation to be suspicious and told the men to "stay put." Dispatch reported that the only valid driver's license was held by defendant Magoon, who had prior drug involvement and was known to carry a weapon.

         ¶ 4. A second officer arrived about twenty-two minutes into the encounter. Officer Tetreault led his dog around the car for a drug sniff, and it "alerted" on the front bumper and both rear passenger doors. Officer Tetreault asked defendant Magoon to step out of the vehicle and a pat-down search revealed a loaded revolver. The driver, defendant Harris, consented to a search of the car and police found bundles of what appeared to be heroin and a stack of cash. All the occupants denied owning the drugs or cash. All three defendants in this appeal were charged with possession of heroin and defendant Magoon was also charged with carrying a weapon while committing a felony.

         ¶ 5. Defendants moved to suppress the evidence obtained as a result of the officer's interaction with defendants. Defendants argued that the officer seized defendants by ordering them to remain in the vehicle without a reasonable suspicion of wrongdoing. Defendants also contended that the officer impermissibly expanded the stop by questioning them about criminal activity and by deploying a drug-sniffing dog.

         ¶ 6. The court denied the motions to suppress. The court concluded that the initial traffic stop was warranted, and that subsequent events and observations supported the investigative detention that followed. The court further concluded that the extension of the stop to deploy the canine was supported by the facts that the men were in an unlit car behind a bank at 1:00 a.m.; the men had no explanation for their presence; the front passenger was rocking and twitching and appeared under the influence of narcotics; and one passenger was known to carry a weapon. Defendants moved to reconsider and the court denied the motion.

         ¶ 7. Defendants then moved for interlocutory review. The appellate rules provide that an interlocutory appeal may be granted to a defendant in a criminal matter if the issue appealed is a controlling issue of law "about which there exists substantial ground for difference of opinion," and an immediate appeal has potential to "materially advance the termination of the litigation." V.R.A.P. 5(b)(1), (2). Defendants argued that the issues of whether Officer Tetreault unlawfully detained defendants or unlawfully expanded the traffic stop were controlling questions of law. Defendants further argued that an immediate appeal would advance termination of the litigation because if the motion to suppress was granted, then the State would lack admissible evidence to continue the prosecution. The State did not respond to the motion. In December 2018, the trial court granted the motion without explanation, and the appeals were transmitted to this Court.

         ¶ 8. In January 2019, this Court dismissed the interlocutory appeals. This Court quoted State v. Lyford, 2016 VT 118, ¶ 2, 203 Vt. 648, 160 A.3d 317 (mem.), for the proposition that generally interlocutory appeals of motions to suppress in criminal cases are not granted" 'unless a conditional plea is not available or practicable under the circumstances and the criteria in Rule 5(b) have been met.'" Because defendants did not demonstrate why a conditional guilty plea was not available or practicable, this Court dismissed the appeals as improvidently granted. V.R.A.P. 5(b)(8).

         ¶ 9. Defendants asked this Court to reconsider the dismissal and sought leave to file additional briefing. This Court granted the request for defendants to submit briefing in support of their motion to reconsider the dismissal and directed the parties to brief the merits of the holding in Lyford, 2016 VT 118.

         ¶ 10. Defendants argue that: (1) the Lyford holding effectively amends Appellate Rule 5 and this change should be made through the rulemaking process; (2) the requirement that defendants demonstrate that a conditional guilty plea is impracticable, is coercive, is contrary to the presumption of innocence, and impermissibly empowers the prosecution; (3) denying defendants interlocutory review contravenes their rights under the Vermont Constitution; and (4) Lyford impermissibly narrows the group of defendants eligible for interlocutory review of pretrial motions.

         ¶ 11. We overrule Lyford's requirement that defendants must demonstrate that a conditional guilty plea is not available or practicable as a prerequisite to obtaining interlocutory review. We hold that defendants in criminal cases may obtain interlocutory review if the conditions in Appellate Rule 5 are met. Nonetheless, we dismiss these appeals as improvidently granted because the issues raised are not ...

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