State v. Nichole L. Dubaniewicz , 208 A.3d 619 ( 2019 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2019 VT 13
No. 2018-092
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Windham Unit,
Criminal Division
Nichole L. Dubaniewicz January Term, 2019
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
¶ 1. SKOGLUND, J. 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appeared to be pale and withdrawn, and that they were wearing heavy winter coats and hats.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
1
“Dope sick” is a colloquial term used to describe someone who is in withdrawal from
narcotics.
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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
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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 forced open, and suspected heroin was discovered. There were four bricks (a
brick is a pack of fifty bags), one of which had been opened and was missing several bags. The
suspected heroin was delivered to the Vermont Forensic Laboratory.
¶ 9. At the lab, the forensic chemist counted a total of 181 bags—fifty bags in each of
the four bricks, except that one brick had an extra bag and one brick had been open and not all the
bags were present. Twenty-six bags were randomly selected, tested, and found to contain heroin.
The number of bags tested was consistent with a statistical-based sampling method, pursuant to
which the chemist could say, with ninety-five percent confidence, that ninety percent of the 181
bags will contain heroin, assuming that all of them gave a positive response to the presumptive
test for the presence of heroin, which they did. The twenty-six bags that were tested weighed a
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total of 500 milligrams. The lightest bag weighed 12.4 milligrams, and the heaviest bag weighed
25.8 milligrams.
¶ 10. Prior to trial, both J.S. and defendant filed motions to suppress the results of the
search of the car and to dismiss, arguing that: (1) the sergeant’s exit order to defendant was
unsupported by reasonable suspicion; (2) the forty-minute detention for the arrival of a canine unit
was excessive; (3) the canine examination of the vehicle was unsupported by sufficient grounds;
(4) the sergeant’s detention of the car while he sought a warrant was improper; (5) there were
significant and misleading omissions and errors in the affidavits in support of the warrant
application; and (6) the affidavit did not provide probable cause for the issuance of the search
warrant.
¶ 11. The court denied the suppression motions which were heard jointly. The trial
court’s factual findings are generally not challenged on appeal. The court stated that a reasonable
suspicion that a defendant-driver may be under the influence of alcohol or another substance that
impairs their ability to drive supports an exit order. It concluded that the sergeant’s observation
of defendant’s constricted pupils, suspected track marks on her hands, and her change in affect
from dull and withdrawn during the first stop to a more comfortable demeanor during the second
stop supported his exit order in this case. The court noted the “implausibility” of defendant’s
motivation for traveling from New Hampshire to Greenfield, Massachusetts, combined with the
information he had gathered from the police in New Hampshire, provided reasonable grounds to
believe that defendant or J.S. “might have purchased drugs in Greenfield and still be in possession
of them.” The court also concluded that the forty-minute wait for the canine unit was not excessive
or unreasonable and that the sergeant had a reasonable, articulable suspicion of drug activity when
he subjected the car to a canine drug-odor scan.
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¶ 12. The case was tried to a jury. At the close of evidence, the jury was instructed on
the automobile presumption of possession when a regulated drug is found in the car, 18 V.S.A.
4221(b), the lesser-included felony offense of possession of more than 200 milligrams of heroin,
and the lesser-included misdemeanor offense of possession of any amount of heroin. The heroin
itself was admitted as an exhibit, circulated among the jurors in the courtroom, and taken into the
jury room during deliberation. The jury returned a guilty verdict.
¶ 13. On appeal, defendant argues that the sergeant had no reasonable suspicion to order
her from the car, to expand the scope of the stop into a drug investigation, or to detain her while
he waited for a canine unit to arrive, and therefore the trial court erred in denying her motion to
suppress.2 We find the exit order was supported by the sergeant’s reasonable suspicion that she
was operating a motor vehicle while under the influence. However, we find the extension of the
detention was not supportable and reverse on this point.
¶ 14. “Our review of a decision on a motion to suppress involves two steps.” State v.
Cunningham, 2008 VT 43, ¶ 14, 183 Vt. 401, 954 A.2d 1290. First, we review the trial court’s
factual findings for clear error, where “the court’s finding[s] must be upheld unless there is no
reasonable or credible evidence to support [them].” State v. Weisler, 2011 VT 96, ¶ 6, 190 Vt.
344, 35 A.3d 970 (quotation omitted). If the trial court’s findings are not clearly erroneous, we
2
Because we reverse on other grounds, we do not address defendant’s following
arguments: (1) the permissive inference of knowing possession of a regulated drug by each and
every person in the automobile at the time such drug was found is unconstitutional on its face
because it allows a jury to find knowing possession of illegal drugs in circumstances which, if the
defendant were not in an automobile, would be insufficient to establish possession; (2) the trial
court violated defendant’s due process rights by refusing to instruct the jury that the basic facts of
her presence in the car when heroin was found should logically lead to the conclusion that she
knowingly possessed the heroin; and (3) the trial court should have entered a judgment of acquittal
because the prosecution provided no evidence to support a finding that defendant possessed one
gram or more of heroin.
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will then review the legal issues de novo.” Cunningham, 2008 VT 43, ¶ 14. (quotation and
alteration omitted).
¶ 15. This Court has held “that the test to determine whether an exit order was justified
under Article 11 is whether the objective facts and circumstances would support a reasonable
suspicion that the safety of the officer, or of others, was at risk or that a crime has been committed.”
State v. Sprague, 2003 VT 20, ¶ 16, 175 Vt. 123, 824 A.2d 539. And similarly, “[i]f, during the
course of an investigative stop, an officer gathers additional information providing reasonable
suspicion that some other criminal activity is afoot, the officer may extend the detention to
investigate that activity.” State v. Winters, 2015 VT 116, ¶ 14, 200 Vt. 296, 131 A.3d 186. When
conducting both analyses, this Court looks to the totality of the circumstances. State v. Manning,
2015 VT 124, ¶ 14, 200 Vt. 423, 132 A.3d 716. The inquiry is objective, and we will “not
countenance a seizure based on luck and hunch.” Winters, 2015 VT 116, ¶¶ 14, 27 (quotation
omitted).
¶ 16. First, the trial court correctly concluded that the sergeant had a reasonable suspicion
to order defendant from her car. The sergeant testified, and trial court found, that at the time of
the exit order, the sergeant had noted that defendant had constricted pupils, even though it was an
overcast day, and that she had alleged track marks on the back on her hands. Further, the sergeant
testified, and the trial court found, that he had observed an overt shift in her affect from the first
stop to the second stop—changing from dull, withdrawn, and showing symptoms of “dope
sickness” to more comfortable and no longer withdrawn or sick. The trial court concluded that
based on these facts, in combination with “the implausibility of . . . defendant’s motivation for
traveling from New Hampshire to Greenfield”—to get cake—the sergeant had legitimate
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reasonable suspicion that defendant was potentially under the influence of heroin, which impaired
her ability to drive, and therefore his exit order was justified.
¶ 17. We agree. The trial court’s findings are supported by the record, and thus not
clearly erroneous. And, while “none of these factors viewed in isolation could form the basis for
reasonable suspicion, . . . [l]ooking at the circumstances as a whole, particularly through the lens
of the [sergeant]’s experience in law enforcement,” the sergeant had reasonable suspicion to
believe that defendant was under the influence while driving. Manning, 2015 VT 124, ¶ 16
(citation omitted). The sergeant is an experienced law enforcement officer who has led drug
investigations, attended trainings and continuing education relating to criminal drug activity and
investigations, and instructed fellow officers in trainings regarding basic drug identification and
investigation. Despite defendant’s assertion that the sergeant merely “offered his lay
observations,” the facts here meet the requirement of “an objective circumstance that would cause
a reasonable officer to believe [an exit order] was necessary to protect the officer’s, or another’s,
safety or to investigate a suspected crime.” Sprague, 2003 VT 20, ¶ 20.
¶ 18. “If, during the course of an investigative stop, an officer gathers additional
information providing reasonable suspicion that some other criminal activity is afoot, the officer
may extend the detention to investigate that activity.” Winters, 2015 VT 116, ¶ 14. Here, we
cannot agree with the trial court’s conclusion that the sergeant had a reasonable suspicion to
expand the scope of the stop into a drug investigation, for he gained no more information after the
exit order that would have justified extending his investigation from a potential DUI traffic stop to
a drug investigation. The sergeant testified that, after having defendant exit the vehicle and walk
back to his cruiser, he did not believe any field-sobriety testing was warranted. At trial, he testified
that after having her exit the vehicle and speak with him in his cruiser, he was not concerned that
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she was operating impaired. Therefore, the continuation of the traffic stop and expansion into a
drug investigation required further evidence developed during the roadside investigation to support
a reasonable suspicion of that particular type of illegal activity, beyond the possibility that
defendant was driving under the influence. We find there was insufficient evidence on this point—
the sergeant did not mention during any of his testimony, at the suppression hearing or at trial, any
objective factual basis to support his suspicion that additional drugs would likely be found in the
vehicle or in defendant’s possession.3 Therefore, the evidence gathered past this point should have
been suppressed.
¶ 19. Because all evidence gathered after the sergeant determined that defendant was not
operating under the influence should have been suppressed, including all of the heroin discovered,
we reverse defendant’s conviction of one count of possession of one gram or more of heroin, under
18 V.S.A. § 4233(a)(3).
Reversed.
FOR THE COURT:
Associate Justice
3
The sergeant’s information from another officer that defendant was “believed” to be
involved in drug activity turned out to be incorrect.
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