State v. Chicoine

• Decision Date: 24 May 2007
• Docket Number: No. 05-529.,05-529.
• Citation: 928 A.2d 484,2007 VT 43
• Parties: STATE of Vermont v. Philip CHICOINE.
• Court: Vermont Supreme Court

928 A.2d 484

2007 VT 43

STATE of Vermont v. Philip CHICOINE.

No. 05-529.

Supreme Court of Vermont.

May 24, 2007.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

ENTRY ORDER

¶ 1. Defendant Philip Chicoine entered a conditional guilty plea to one count of felony possession of cocaine, 18 V.S.A. § 4231(a)(2), after the district court denied his motion to suppress evidence discovered in the course of a police officer's pat-down following a traffic stop. On appeal, the State did not seek to justify the warrantless search as a frisk for weapons, but defended the court's conclusion that the pat-down was reasonable as incident to a valid arrest for drug possession. We find, however, that the investigating officer lacked probable cause to arrest, so the warrantless pat-down search was not justified by the exigency of arrest. We therefore reverse the denial of suppression.

¶ 2. The trial court made the following factual findings.^* On December 30, 2004 the investigating officer and his partner drove to an address in South Burlington to conduct a search for illicit drugs. When they arrived they saw a car exit the driveway. The officers followed the car, noticed that one of its rear brake lights did not operate, and activated their cruiser's blue lights. Defendant did not pull over right away. After activating the cruiser's siren, both officers saw defendant's passenger quickly lean over and appear to place something in defendant's mouth before defendant pulled into a parking lot and came to a stop.

¶ 3. Believing that defendant and his passenger were attempting to dispose of illicit drugs, the officer rushed to defendant's car, opened the driver's-side door, and asked defendant to open his mouth. Defendant complied, and the officer found no illicit substances. The officer proceeded with the traffic stop and informed defendant of his inoperable brake light. The video shows that when asked where he was coming from, defendant said he had been visiting a coworker at the same house targeted by the police for the drug search. Defendant voluntarily exited his vehicle to inspect the light, and the officer informed him that he was not going to issue a ticket. Instead, the officer asked if defendant possessed any drugs and inquired about the passenger's activity prior to the stop. Defendant said he neither possessed nor destroyed any drugs. Upon request, defendant agreed to empty his pockets, but, based on the video depiction, apparently did not do so completely, saying "That's about it."

¶ 4. At this point the officer noticed defendant shielding the left side of his body and conducted a pat-down search without defendant's consent. He felt a soft package in defendant's left jacket pocket, which defendant insisted was napkins. The officer then handcuffed defendant, reached into the jacket pocket, and seized twenty-four grams of cocaine.

¶ 5. Police officers may conduct a warrantless pat-down search with the driver's consent, State v. Zaccaro, 154 Vt. 83, 87, 574 A.2d 1256, 1259 (1990), or if they reasonably believe that the driver may be armed and dangerous, State v. Jewett, 148 Vt. 324, 328-29, 532 A.2d 958, 960 (1987). Here, the trial court found that the pat-down was not consensual because defendant's statement, "You're going to frisk me!" evidenced surprise rather than assent. The court also found that the officer conducted the pat-down with the intent to discover illicit drugs, rather than to search for weapons. The trial court upheld the search as incident to arrest, finding that the officer had probable cause to believe defendant possessed illicit drugs because: (1) defendant drove from a suspected drug house; (2) the officer observed defendant and his passenger "engage in a known drug elimination ploy" by the companion placing something in defendant's mouth; (3) defendant gave evasive answers to the officer's questions; and (4) defendant appeared stressed and shielded the left side of his body after emptying his other pockets.

¶ 6. On appeal, defendant argues that the officer impermissibly expanded the scope of the initial traffic stop and conducted a warrantless search without consent and absent probable cause that a crime had been committed or reasonable suspicion that defendant was armed and dangerous. The State contends that both the initial traffic stop and request for defendant to open his mouth were supported by reasonable, articulable suspicion of criminal wrongdoing. The State asserts that the follow-up search was a valid search incident to arrest based on probable cause that defendant possessed drugs. In an appeal of a motion to suppress, we review the trial court's factual findings for clear error and its legal conclusions de novo. State v. Yoh, 2006 VT 49A, ¶ 10, 180 Vt. 317, 910 A.2d 853.

¶ 7. Under both the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution, a police officer may initiate a traffic stop if the officer has reasonable, articulable suspicion of wrongdoing. State v. Beauregard, 2003 VT 3, ¶ 6, 175 Vt. 472, 820 A.2d 183 (mem.). Defendant does not contest the validity of the initial traffic stop for operating a motor vehicle with a faulty brake light in violation of 23 V.S.A. § 1221. Furthermore, a police officer may expand the scope of an investigatory stop and conduct a warrantless search if the officer has probable cause to arrest. State v. Meunier, 137 Vt. 586, 588, 409 A.2d 583, 584-85 (1979). A warrantless search incident to an arrest may occur prior to the arrest so long as the two are "substantially contemporaneous." State v. Greenslit, 151 Vt. 225, 229, 559 A.2d 672, 674 (1989) (citing United States v. Ilazi, 730 F.2d 1120, 1126 (8th Cir.1984)). Therefore, if the officer had probable cause to arrest defendant prior to conducting the first pat-down search, the trial court properly denied defendant's motion to suppress.

¶ 8. Probable cause for a warrantless arrest requires the same level of evidence needed for the issuance of a warrant. State v. Blais, 163 Vt. 642, 643, 665 A.2d 569, 570 (1995) (mem.). Probable cause exists when the facts and circumstances known to an officer are sufficient to lead a reasonable person to believe that a crime was committed and that the suspect committed it. Greenslit, 151 Vt. at 228, 559 A.2d at 674. This is a higher standard than the reasonable suspicion needed to temporarily detain a suspect for investigation. State v. Lamb, 168 Vt. 194, 196, 720 A.2d 1101, 1102 (1998). It is also a higher standard than the reasonable suspicion needed to justify a pat-down search for weapons in the interest of officer safety in connection with an investigatory stop. Jewett, 148 Vt. at 327-28, 532 A.2d at 960 (explaining that arrest must be based on probable cause, while less justification is required for the lesser intrusion of a brief protective search for weapons). We review a finding of probable cause to see if it was based on substantial evidence. Blais, 163 Vt. at 643, 665 A.2d at 570.

¶ 9. We need not address defendant's claim that the officer unlawfully extended the original traffic stop because the trial court's conclusion that probable cause to arrest authorized the initial pat-down search is not supported by the record. The officer observed the passenger appear to place something quickly into defendant's mouth prior to the stop and defendant try to shield the left side of his body just...