State v. Delaoz

• Decision Date: 16 July 2010
• Docket Number: No. 09–001.,09–001.
• Citation: 22 A.3d 388,2010 VT 65
• Parties: STATE of Vermontv.Jorge L. DELAOZ.
• Court: Vermont Supreme Court

22 A.3d 388

2010 VT 65

STATE of Vermont

v.Jorge L. DELAOZ.

No. 09–001.

Supreme Court of Vermont.

Motion for Reargument Granted Aug. 30, 2010.Opinion on Reargument Filed March 18, 2011.July 16, 2010.

William H. Sorrell, Attorney General, David Tartter and John Treadwell, Assistant Attorneys General, and Andrew Delaney, Law Clerk, Montpelier, for Plaintiff–Appellee.Allison N. Fulcher of Martin & Associates, Barre, for Defendant–Appellant.Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, Rebecca Turner, Appellate Defender, and Rachel Westropp, Law Clerk (on the Brief), Montpelier, for Amicus Curiae Office of the Defender General.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.JOHNSON, J.

¶ 1. Following a jury trial, defendant was convicted of felony possession of cocaine, misdemeanor possession of marijuana, and misdemeanor providing false information to an officer. Defendant appeals his conviction and sentence, arguing that the trial court: (1) failed to suppress physical evidence that was the fruit of an illegal interrogation; (2) allowed prejudicial testimony concerning defendant's possession of contraband while at the police station for questioning; (3) considered impermissible information in sentencing defendant; and (4) imposed a fixed term of imprisonment for the cocaine possession charge in violation of 13 V.S.A. § 7031(a). We affirm the judgment of conviction on all three charges, reverse the sentence for cocaine possession, and remand for resentencing on this charge.

¶ 2. On July 13, 2007, police responded to a report of a person screaming in the South Main Street area of Brattleboro, Vermont. An officer was dispatched to the scene where he encountered three people outside on the street. The officer approached and asked the individuals whether they were responsible for the noise, to which they responded affirmatively. The officer then asked them to identify themselves. Defendant gave the officer a fake name; the fake name he used, however, was that of an individual who had an extraditable warrant from Florida. The officer informed defendant of the warrant and defendant responded that he had never been to Florida.

¶ 3. As the police dispatch was confirming the warrant information, defendant dropped a dollar bill on the ground directly in front of the officer. The dollar bill was folded into a small pouch, and the officer testified that based on his training and experience, he immediately recognized the pouch as a device used to carry illegal drugs. Defendant put his foot over the bill and then quickly picked it up and placed it in his pocket. After defendant picked up the bill, the officer asked defendant if he could see it. Defendant handed the pouch to the officer. Before the officer opened the pouch, he asked defendant what was inside it, to which defendant responded that it was “a little bit for play.” The officer then opened the pouch and found a white powdery substance later identified as cocaine. The officer again asked defendant what was inside the pouch, and defendant responded that it was “coke.”

¶ 4. The officer subsequently arrested defendant, handcuffed him, and proceeded to search him incident to the arrest. The officer found two small bags in defendant's pocket, one containing cocaine and the other containing marijuana. In another pocket, the officer found a wooden box containing more marijuana and a bag of six Seroquel tablets. Finally, the officer felt another object located in defendant's underwear. When questioned about this object, defendant responded that it was “a little more coke.”

¶ 5. After searching defendant, the officer transported him to the Brattleboro police station, where he was asked processing questions, but was not questioned further about the incident. Defendant's real identity was subsequently confirmed. While at the station, the officer asked defendant to remove the cocaine from his underpants. He did so, placed the package on a desk, then grabbed the package and ripped it open, spewing cocaine all over the room. Defendant was restrained, handcuffed, and placed in a cell.

¶ 6. Defendant was charged with felony possession of cocaine in violation of 18 V.S.A. § 4231(a)(2), misdemeanor possession of marijuana in violation of 18 V.S.A. § 4230(a)(1), and misdemeanor providing false information to a police officer in violation of 13 V.S.A. § 1754(a).

¶ 7. Defendant moved to suppress all of the evidence gathered and statements made over the course of the encounter, arguing that he was in police custody at the time the officer asked him to hand over the dollar bill drug pouch. Because the officer had not apprised defendant of his Miranda rights prior to inspecting the contents of the pouch, defendant claimed that the cocaine and all subsequent evidence gathered were the products of an illegal search. The trial court granted in part and denied in part defendant's motion. The court concluded that once the officer learned that defendant had an extraditable warrant from Florida and relayed this information to defendant, defendant was not free to leave and was in custody. Because defendant was not apprised of his Miranda rights at this time, the trial court suppressed all of defendant's unwarned statements, including: defendant's first response to what was in the pouch (“a little bit for play”); defendant's second statement after the officer had opened the pouch and observed its contents (that the pouch contained “coke”); and defendant's third statement as to what the bulge was in his pants (“a little more coke”).

¶ 8. The court, however, denied defendant's motion to suppress the physical evidence discovered over the course of the encounter, evidence that included the cocaine found in the dollar bill drug pouch and the cocaine and marijuana found on defendant's person. The court concluded that at the time the dollar bill drug pouch fell onto the ground it was in plain view, and the officer's training and experience gave him reason to believe it contained illegal drugs and probable cause to seize and open it. The court also found that the officer had reason to ask defendant to show him the bill and that by giving the officer the bill defendant consented to its search. The court concluded that once the officer discovered the cocaine in the pouch, he had probable cause to arrest defendant, and the subsequent marijuana and cocaine were discovered as part of a permissible search incident to arrest.

¶ 9. During trial, the State presented evidence that defendant had a handcuff key secreted in his shoe while in the Brattleboro police station. Defendant objected, arguing that this evidence was irrelevant and prejudicial, but the court overruled the objection. Following a two-day trial, defendant was convicted on all three counts and was subsequently sentenced to four years and eleven months to five years for the cocaine possession charge, “all suspended but five years,” and concurrent sentences of five-to-six months for the marijuana possession charge and eleven-to-twelve months for the false information charge.

¶ 10. On appeal, defendant contends that the trial court: (1) erred in failing to grant his suppression motion with regard to the physical evidence seized; (2) erred in allowing testimony as to defendant's possession of a handcuff key; (3) relied on impermissible information in imposing a sentence; and (4) imposed a sentence for a fixed term in violation of 13 V.S.A. § 7031(a). We address each argument in turn.

I.

¶ 11. Defendant's primary argument with regard to the motion to suppress is that the officer engaged in a custodial interrogation, but failed to give defendant the required warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the arrest and subsequent search incident to that arrest were all the result of the unwarned interrogation. Defendant asserts that the officer thus violated his rights to be free from self-incrimination and unlawful search and seizure under both the Vermont and Federal Constitutions. The State argues, and we agree, that even conceding that defendant was in custody at the time of the search, the physical evidence obtained was justified on grounds other than the unwarned statements, including the fact that defendant dropped the pouch of cocaine in plain view of the officer. This gave the officer probable cause to seize the pouch, arrest defendant, and search defendant incident to that lawful arrest.

¶ 12. A motion to suppress presents a mixed question of fact and law. State v. Fleurie, 2008 VT 118, ¶ 10, 185 Vt. 29, 968 A.2d 326. In reviewing the trial court's decision on a motion to suppress, we review the court's legal conclusions de novo and its findings of fact under a clearly erroneous standard. State v. Pontbriand, 2005 VT 20, ¶ 12, 178 Vt. 120, 878 A.2d 227; Fleurie, 2008 VT 118, ¶ 10, 185 Vt. 29, 968 A.2d 326 (“While we uphold the trial court's factual findings absent clear error, we review the trial court's conclusions of law de novo.” (quotation omitted)).

¶ 13. Once a suspect is in custody, he is entitled to Miranda warnings. State v. Garbutt, 173 Vt. 277, 282, 790 A.2d 444, 448 (2001). Here, the trial court found that defendant was in custody as soon as the officer told him of the potential warrant for his arrest. All statements made by defendant as a product of this custodial interrogation were, therefore, correctly suppressed. Defendant argues, however, that the trial court erred in denying his motion to suppress the physical evidence, in the form of cocaine and marijuana, found over the course of the entire encounter because seizure of this evidence amounted to tainted “fruit” of the initial illegality. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We disagree.

¶ 14. The question here turns on whether the discovery of the cocaine and marijuana were the result of defendant's unwarned...