State v. Eric G. Nagel ( 2020 )

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.
2020 VT 31No. 2019-101
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Grand Isle Unit,
Criminal Division
Eric G. Nagel October Term, 2019
Robert A. Mello, J.
David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, Joshua S. O’Hara, Appellate Defender, and
Katarina Marczeski, Legal Intern, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Burgess, J. (Ret.)1 and
Morris, Supr. J. (Ret.), Specially Assigned
¶ 1. REIBER, C.J. Defendant Eric Nagel appeals from the trial court’s denial of his
motion to suppress and dismiss. He argues that police officers violated Article 11 of the Vermont
Constitution by expanding the scope of a valid traffic stop into a drug investigation without
reasonable suspicion of drug-related criminal activity. We agree and reverse.
I. Facts
¶ 2. The following facts are undisputed. In October 2017, a deputy sheriff was driving
on Route 2 and recognized the vehicle in front of him from prior law enforcement encounters. He
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Justice Burgess was present for oral argument but has since recused himself.
ran a registration check on the vehicle and learned the car was registered to Courtney Nagel. The
officer knew from prior law enforcement experience that Courtney Nagel was married to defendant
and that defendant’s license was criminally suspended. He also was aware that defendant had been
known to visit residences suspected of drug dealing. The deputy observed that the driver of the
vehicle appeared to be defendant.
¶ 3. Defendant was alone in the vehicle and voluntarily pulled off the road after being
followed by the deputy. The officer activated his blue lights and initiated a traffic stop. Several
other officers were also present at the stop. The deputy confirmed through the Vermont
Department of Motor Vehicles database that defendant’s license was criminally suspended. The
deputy told defendant he would issue a citation for the suspended-license offense. Defendant
asked whether the officer would arrest him, and the deputy said that he could but would not. He
said they would take his keys to the police office and a valid driver could pick them up and retrieve
the vehicle. He informed defendant he must fill out the citation paperwork and returned to his
vehicle. As the deputy returned to the police car, he told the other officers that he would “let
[defendant] think that this is going to be a go and then I’m going to ask him to search his car.”
¶ 4. The deputy worked on paperwork in his vehicle for several minutes. Another
officer asked defendant to step outside the vehicle and patted him down. The deputy came back
to defendant and asked him if he could search the vehicle for drugs. Defendant stated that there
were no drugs in the car. The officer said he knew defendant was associated with people and
residences suspected of drug-related crime and again asked to search his car. Defendant said the
officer “had no reason to look through it.” Another officer present, the sheriff, stated, “OK, then,
I’m going to call a wrecker tow because I’ve got probable cause because somebody has smoked
marijuana in the vehicle in the last thirty days.” He said the “faint hint of marijuana” gave him
“probable cause to seize it, impound it and do up a search warrant.” The sheriff did not claim that
defendant had been smoking marijuana. The deputy stated they could “call a canine out to do a
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search on the car.” Defendant then gave consent orally and in writing for the officers to search his
vehicle. The officers found drugs and drug-related paraphernalia in the vehicle.
¶ 5. The State charged defendant with operation of a motor vehicle with a suspended
license; possession of heroin; and possession of a regulated drug greater than the recommended
therapeutic dosage. Defendant filed a motion to suppress the evidence and dismiss, arguing that
the State had violated the Fourth Amendment to the United States Constitution and Article 11 of
the Vermont Constitution. Following a hearing, the trial court denied the motion. Defendant
subsequently pled guilty to driving with a suspended license and entered a conditional guilty plea
to an amended charge of possessing a regulated drug in an amount greater than the recommended
individual therapeutic dosage. He was sentenced to two-to-five years’ imprisonment, all
suspended, and released on probation.
¶ 6. Defendant timely appeals, arguing that (1) the officers violated Article 11 of the
Vermont Constitution by expanding the scope of this stop into a drug investigation without
reasonable suspicion and (2) defendant’s unlawful detention invalidated his consent. “When
reviewing the trial court’s decision on a motion to suppress, we review the court’s legal
conclusions de novo and its factual findings for clear error.” State v. Manning, 2015 VT 124, ¶ 10,
200 Vt. 423, 132 A.3d 716.
II. Unlawful Detention
¶ 7. We first address defendant’s argument that the officers unlawfully detained him in
violation of Article 11. Defendant does not dispute that the initial motor vehicle stop, based on
the officer’s reasonable suspicion that defendant was driving with a suspended license, was lawful.
Rather, defendant contends that the officers’ subsequent questioning of defendant about suspected
drug-related activity prolonged the initial stop, and this was unlawful because the officers lacked
reasonable suspicion that he was engaged in drug-related crime. The State counters that the
officers’ conduct did not unreasonably prolong the stop because the drug-related questioning took
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place before the officers had completed the tasks associated with the initial stop. Alternatively,
the State argues that prolonging the motor vehicle stop was justified because the officers had
probable cause to arrest defendant. The State does not argue that the officers had reasonable
suspicion that defendant was engaged in drug-related crime.
¶ 8. “Like the Fourth Amendment [to the United States Constitution], Article 11
protects citizens against unreasonable searches and seizures.” Zullo v. State, 2019 VT 1, ¶ 58, __
Vt. __, 205 A.3d 466 (quotation and alteration omitted); see also State v. Cunningham, 2008 VT
43, ¶ 16, 183 Vt. 401, 954 A.2d 1290 (“We have consistently held that Article 11 provides greater
protections than its federal analog, the Fourth Amendment . . . .”). “The temporary stop of a
vehicle is a seizure subject to Article 11 protection from governmental invasions of privacy.”
Zullo, 2019 VT 1, ¶ 58. “Although seizures normally require that a law enforcement officer have
probable cause to believe that the person being seized has engaged in criminal activity, the lesser
standard of reasonable suspicion of either criminal activity or even a minor traffic violation can
form the basis of a valid temporary stop.” Id. ¶ 59. “[A] reasonable and articulable suspicion of
illegal activity . . . means there must be more than an unparticularized suspicion or hunch of
criminal activity, but considerably less than proof of wrongdoing by a preponderance of the
evidence.” State v. Rutter, 2011 VT 13, ¶ 8, 189 Vt. 574, 15 A.3d 132 (mem.) (quotation,
alteration, and citation omitted). “In determining whether an officer had reasonable suspicion to
effectuate a seizure or extend an investigative detention, we look at the totality of the
circumstances.” Manning, 2015 VT 124, ¶ 14.
¶ 9. An investigatory stop based on reasonable suspicion must be “sufficiently limited
in scope and duration.” Florida v. Royer, 460 U.S. 491, 500 (1983) (discussing whether
investigatory stop violated Fourth Amendment); State v. Sprague, 2003 VT 20, ¶ 17, 175 Vt. 123,
824 A.2d 539 (holding that “[i]mplicit” in rule that officers “may stop and temporarily detain a
vehicle based on little more than a reasonable and articulable suspicion of wrongdoing . . . is the
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corollary requirement that the police intrusion proceed no further than necessary to effectuate the
purpose of the stop”). Continued detention following a lawful traffic stop may be lawful if it falls
within the scope and duration of the initial stop. See Rodriguez v. United States, 575 U.S. 348,
350 (2015) (holding investigatory stop may not be “prolonged beyond the time reasonably required
to complete the mission” of stop (quotation and alteration omitted)); United States v. Sharpe, 470
U.S. 675, 682 (1985) (holding continued detention must be “reasonably related in scope to the
circumstances which justified the interference in the first place” (quotation omitted)); see also
State v. Alexander, 2016 VT 19, ¶ 16, 201 Vt. 329, 139 A.3d 574. But if continued detention
exceeds the limits of the initial stop, the detention will be unlawful unless it is supported by
additional reasonable suspicion. Cunningham, 2008 VT 43, ¶ 30 (holding “post-stop investigative
expansion . . . is an additional seizure under Article 11, and therefore must—like an initial stop—
be supported by a reasonable, articulable suspicion of wrongdoing”); see also Manning, 2015 VT
124, ¶ 12 (“If, during the course of the investigative stop, an officer gathers additional information
providing reasonable suspicion that some other criminal act is occurring, the officer may extend
the detention to investigate that activity . . . .”).
¶ 10. The investigatory stop’s purpose is central to deciding whether continued detention
is justified by the reasonable suspicion supporting the initial stop or whether it is an additional
seizure that requires additional reasonable suspicion. State v. Alexander, 2016 VT 19, is
instructive. In Alexander, the defendant was a passenger in a taxi cab, which was detained due to
a traffic violation. During the stop, the officer asked the driver to exit the vehicle and questioned
the driver about defendant. Then the officer questioned defendant and asked to search defendant’s
bags, where the officer discovered heroin. We concluded that the officer had unlawfully prolonged
the stop when he asked the driver to get out of the car. Id. ¶ 18. We explained that “the tolerable
duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission.’ ”
Id. ¶ 16 (quotation omitted). Thus, a police officer who detains a defendant based on reasonable
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suspicion of a traffic violation “may make ordinary inquiries incident to the traffic stop and related
to ensuring roadway safety, . . . [b]ut the officer may not prolong a traffic stop to pursue an
unrelated criminal investigation.” Id. ¶ 17 (quotation omitted). We reasoned that at the time the
officer asked the driver to exit the vehicle, the officer had “abandoned, or at least indefinitely
suspended, any intention of ticketing the driver. The focus of his inquiry pivoted from the traffic
infraction that supported the stop in the first place to an investigation arising from suspicion that
defendant was engaged in drug-related crimes.” Id. ¶ 18 (footnote omitted). As such, the officer
was extending the defendant’s detention to pursue a new “mission,” unrelated to the initial purpose
of the stop, and pursuing “[t]his new ‘mission’ prolonged the traffic stop beyond the time necessary
to effectuate the purpose of the traffic stop.” Id. Because the new mission exceeded the scope and
duration of the initial stop, the reasonable suspicion that justified the initial stop could not justify
the extended detention. Id. Prolonging the stop was unlawful unless there was “additional
reasonable suspicion to support the extended seizure.” Id.
¶ 11. Here the officers did not have reasonable suspicion that defendant was engaged in
drug-related crime, and the State does not argue otherwise. The record shows that one of the
officers had recently seen defendant’s car outside a house suspected of criminal activity, and
another officer said he smelled marijuana that had been smoked in the vehicle by someone in the
past thirty days. The “faint smell of burnt marijuana” has limited probative value and will not, by
itself, support the State’s seizure of a defendant’s vehicle. See Zullo, 2019 VT 1, ¶¶ 81-83.
Likewise, “presence in or travel to an area of known criminal activity, without accompanying
suspicious conduct or other factors, does not provide reasonable suspicion of criminal
wrongdoing.” Alexander, 2016 VT 19, ¶ 23; see also Cunningham, 2008 VT 43, ¶¶ 20, 22 (holding
that information from police dispatch system that anonymous source reported defendant “had prior
involvement with drugs” was insufficient to support expansion of traffic stop for driving with
suspended license into drug investigation). These facts, considered together in the totality of the
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circumstances, do not support a reasonable, articulable suspicion that defendant was involved in a
drug-related crime at the time of the investigatory stop. Compare Cunningham, 2008 VT 43, ¶ 27
(concluding that totality of circumstances, including anonymous tip, information from police
dispatch that anonymous sources had said defendant was previously involved in drug-related
crime, defendant’s nervousness, defendant’s failure to provide documents, and his unexplained
presence in town, failed to provide reasonable suspicion of present drug-related crime), with
Manning, 2015 VT 124, ¶ 22 (concluding that totality of circumstances, including that defendant
was parked in “area known for drug activity,” had large amount of cash stuffed in wallet, and
appeared to hide old prescription bottle upon officer’s approach, supported reasonable suspicion
of drug-related crime).
¶ 12. Because the officers lacked reasonable suspicion that defendant was engaged in
drug-related crime, the drug-related investigation was unlawful unless it was within the scope and
duration of the initial stop. The deputy initially detained defendant based on reasonable suspicion
that defendant was driving with a suspended license. Consistent with that purpose, the deputy
asked for defendant’s driver’s license, checked the validity of the license, learned that defendant
was driving with a suspended license, talked with defendant about the offense and told him he
would release him with a citation, and prepared paperwork for the citation. These activities were
“reasonably related in scope” to the suspended-license offense, Sharpe, 470 U.S. at 682 (quotation
omitted), and did not “prolong” the stop “beyond the time reasonably required to complete the
mission” of the stop, Rodriguez, 575 U.S. at 350 (quotation and alteration omitted).
¶ 13. Subsequently, but before issuing the suspended-license citation or returning
defendant’s license, defendant was asked to exit his vehicle and patted down. The deputy then
repeatedly asked to search defendant’s car and questioned him about his contacts with persons and
places associated with drug-related crime. The sheriff told defendant, incorrectly, that the officers
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had authority to seize his car,2 and the deputy said that he would request a canine unit to search
the car. This inquiry was not reasonably within the scope of the suspended-license offense. As in
Alexander, “[t]he focus of [the] inquiry pivoted” from the suspended-license offense “that
supported the stop in the first place” to a new investigation, “arising from suspicion that defendant
was engaged in drug-related crimes.” 2016 VT 19, ¶ 18. “This new ‘mission’ prolonged the traffic
stop beyond the time necessary to effectuate the purpose of the traffic stop, and thus required
additional reasonable suspicion to support the extended seizure.” Id.
¶ 14. Contrary to the State’s argument, the fact that the deputy had not yet completed the
tasks associated with the suspended-license offense did not bring the drug investigation within the
lawful limits of the initial stop. “Authority for the seizure . . . ends when tasks tied to the traffic
infraction are—or reasonably should have been—completed.” Id. ¶ 16 (quotation omitted and
emphasis added). Police officers are under an obligation to “diligently pursue[] a means of
investigation that [is] likely to confirm or dispel their suspicions quickly.” Sharpe, 470 U.S. at
686. Certainly, “[a] court . . . should take care to consider whether the police are acting in a swiftly
developing situation, and in such cases the court should not indulge in unrealistic second-
guessing.” Id. But officers cannot delay completing a motor vehicle stop in order to launch “an
unrelated criminal investigation.” Alexander, 2016 VT 19, ¶ 17 (quotation omitted). “ ‘Citizens
do not expect that police officers handling a routine traffic violation will engage, in the absence of
justification, in stalling tactics, obfuscation, strained conversation, or unjustified exit orders, to
prolong the seizure in the hope that, sooner or later, the stop might yield up some evidence of an
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To seize defendant’s car while requesting a search warrant requires “probable cause that
the car contains evidence of a crime.” State v. Platt, 154 Vt. 179, 189, 574 A.2d 789, 795 (1990).
As explained above, the smell of burnt marijuana did not support reasonable suspicion, much less
probable cause. See Zullo, 2019 VT 1, ¶¶ 77, 81-83 (explaining that “seizure and search of
plaintiff’s vehicle . . . had to be supported by probable cause rather than the less-rigorous standard
of reasonable suspicion” and that “faint odor of burnt marijuana . . . did not, in and of itself, create
a fair probability that marijuana would be found in the vehicle”).
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arrestable crime.’ ” Sprague, 2003 VT 20, ¶ 17 (quoting Commonwealth v. Gonsalves, 711 N.E.2d
108, 112 (Mass. 1999)).
¶ 15. Moreover, the record shows that the officers here had failed to complete the tasks
associated with defendant’s offense only because they had chosen not to complete them. The
footage from the deputy’s body camera illustrates this. As the deputy walked to his car to fill out
the paperwork for the suspended-license offense, he told the other officers, “I’m going to let him
think that this is going to be a go and then I’m going to ask him to search his car.” The body
camera footage shows that the deputy spent several minutes filling out forms and then, when he
returned to defendant, he suggested the paperwork was still incomplete, saying: “Before I do all
the paperwork, just wondering if you’d let me search your car.” It is clear that the officers delayed
completing the traffic stop in order to pursue an unrelated criminal investigation without
reasonable, articulable suspicion that defendant was engaged in the suspected crime. This was
unlawful. See Alexander, 2016 VT 19, ¶ 16.
¶ 16. The State claims that Alexander compels a different conclusion. In that case, we
relied on the fact that the officer had “abandoned, or at least indefinitely suspended,” the tasks
associated with the initial stop to conclude that the officer’s subsequent drug-related investigation
prolonged the traffic stop. Id. ¶ 18. But Alexander did not create a bright-line rule centered on
the completion of a traffic stop. See id. Rather, Alexander held that an officer may not launch a
new inquiry, unrelated to the initial stop, without reasonable suspicion to do so. Id. Whether the
officer has completed the initial investigation is relevant, but not dispositive, in deciding whether
the officer’s inquiry is within the permissible duration of the initial stop.
¶ 17. Alternatively, the State claims that the extended stop was justified because the
officer had probable cause to arrest defendant for driving with a criminally suspended license,
citing Vermont Rule of Criminal Procedure 3(b), which authorizes warrantless arrest if an officer
has witnessed the defendant committing a misdemeanor. Defendant counters that according to
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Vermont Rule of Criminal Procedure 3(f), the officer would have had to release defendant with a
citation, so prolonging the detention was not justified. The State is correct that the deputy could
have arrested defendant for the suspended-license offense, which was committed in the officer’s
presence. V.R.Cr.P. 3(b) (providing that “law enforcement officer may arrest without a warrant a
person whom the officer has probable cause to believe has committed or is committing a
misdemeanor in the presence of the officer”). Defendant is correct that after being arrested, the
deputy would have had to release defendant with a citation. V.R.Cr.P. 3(f) (“A person who has
been arrested without a warrant for a misdemeanor offense shall be released on citation if . . . none
of the exceptions in subsection (c) of this rule apply . . . .”).
¶ 18. The parties’ disagreement about Rule 3 is immaterial. Essentially, the State’s
argument suggests that if officers have the right to detain a defendant further in order to arrest him,
but choose not to do so, whatever time they would have used to arrest the defendant they can now
spend on an unrelated purpose. This is incorrect. Probable cause to arrest a defendant for one
offense does not justify detention to investigate a different offense. Detention for arrest based on
probable cause, like detention for an investigatory stop based on reasonable suspicion, is limited
to its purpose. Cf. State v. Bauder; 2007 VT 16, ¶ 25, 181 Vt. 392, 924 A.2d 38 (“The finding of
probable cause is a decidedly fact-specific determination, turning on whether the particular
circumstances establish a nexus between the crime, the suspect, and the place to be searched.”
(quotation omitted)); Royer, 460 U.S. at 499-500 (explaining traffic stop based on reasonable
suspicion must be limited in scope and duration because “Fourth Amendment’s prohibition against
unreasonable searches and seizures has always been interpreted to prevent a search that is not
limited to the particularly described ‘place to be searched, and the persons or things to be seized,’
even if the search is made pursuant to a warrant and based upon probable cause,” and this
protection is not “diluted” in context of investigatory stop (citation omitted)).
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¶ 19. United States v. Bain, on which the State relies, does not disturb our analysis. 135
F. App’x 695 (5th Cir. 2005) (per curiam). In Bain, the Fifth Circuit stated that the officer had
probable cause to arrest the defendant for driving with a suspended license, and therefore
prolonging the defendant’s detention was constitutional. Id. at 696-97. Because the reported facts
are sparse, it is unclear whether defendant’s detention was prolonged in order to arrest defendant
for driving with a suspended license or for some other purpose. If Bain holds that an officer may
prolong a traffic stop to arrest a defendant for a particular offense based on probable cause that the
defendant committed that offense, then we agree with Bain. See Manning, 2015 VT 124, ¶ 12
(holding officer may prolong traffic stop after gathering additional information that justifies
prolonging stop). If, however, Bain holds that probable cause to arrest a defendant for one offense
justifies detention for a different offense, then we disagree with Bain. The other cases cited by the
State are inapposite and also do not disturb our analysis. See United States v. Johns, No. 13-cr-
00071, 2013 WL 4587744, at *4 (W.D. La. Aug. 27, 2013) (holding prolonged detention justified
when officers had probable cause to arrest defendant and “a litany of suspicious factors” that arose
during investigation “justified Defendant’s continued detention and eventual arrest”); United
States v. Forney, No. 3:12-cr-00381-FDW-DCK, 2013 WL 2317700, at *8-10 (W.D.N.C. May 28,
2013) (holding continued detention lawful because search-incident-to-arrest exception applied,
based on probable cause to arrest defendant, defendant’s admission that unregistered firearm was
in car, and passenger showed suspicious behavior, indicating “legitimate safety concerns to
support a search of the vehicle”).
¶ 20. Additionally, the State claims that the deputy was continuing to detain defendant
because he was waiting for information about whether defendant was in violation of conditions of
probation related to the suspended-license offense. The record does not support this view. The
body camera video shows the deputy telling another officer, “Last weekend, last week ago Sunday,
he was outside—we have two drug houses where people are buying—he was inside one of them.”
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The other officer asked what kinds of drugs were involved, and the deputy said heroin and cocaine.
The other officer then asked whether the deputy was going to give defendant a citation. The deputy
responded, “Yeah. I’m waiting for conditions, though, because if he’s got conditions, then . . . .”
The deputy subsequently told defendant he would not arrest him for the suspended-license offense
and would complete the citation paperwork, suggesting he would then release defendant; but he
told the other officers he was going to “let [defendant] think that this is going to be a go” and then
ask to search the car. No one mentioned conditions again for the rest of the stop. This record does
not support the State’s view that defendant was being detained pending a report on whether he was
in violation of conditions of release. Defendant’s continued detention was clearly due to the drug
investigation, not the suspended-license offense.
¶ 21. We conclude the officers unlawfully expanded the valid traffic stop into a drug
investigation without reasonable, articulable suspicion of criminal drug-related activity in
violation of Article 11.
III. Consent
¶ 22. We next address defendant’s argument that his unlawful detention invalidated his
consent. “In general, consent obtained during an illegal detention is invalid.” Alexander, 2016
VT 19, ¶ 31 (quotation omitted); see also State v. Winters, 2015 VT 116, ¶ 27, 200 Vt. 296, 131
A.3d 186 (holding that “[b]ecause defendant was illegally seized, his subsequent ‘consents’ to the
search of his person and car, which occurred very shortly thereafter, were tainted and ineffective”
(quotation omitted)). However, “evidence obtained by means of a valid consent following an
illegal detention may in some circumstances be admissible where the causal nexus with the original
illegality is sufficiently attenuated.” Sprague, 2003 VT 20, ¶ 31. “Voluntariness is to be
determined from the totality of the circumstances, with the State carrying the burden of
demonstrating that the consent was freely given and not coerced by threats or force, or granted
only in submission to a claim of lawful authority.” State v. Pitts, 2009 VT 51, ¶ 24, 186 Vt. 71,
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978 A.2d 14 (quotation omitted). “Among the factors to consider are the temporal proximity of
the illegal detention to the consent, and the presence of any intervening circumstances between the
two events.” Sprague, 2003 VT 20, ¶ 31 (quotation omitted). The State must prove consent was
voluntary “with clear and positive evidence.” Id.
¶ 23. Defendant here gave verbal and written consent. Because defendant was illegally
detained, unless the State shows by “clear and positive evidence” that the consent was voluntary,
we must conclude that defendant’s consent was invalid. Id. The State fails to do so here.
Defendant’s consent arose directly from his illegal detention. There was no intervening time, and
there were no intervening events. See Sprague, 2003 VT 20, ¶ 32 (holding there was “no evidence
that defendant’s compliance was anything other than a submission to the officer’s authority” and
“there were no intervening events to attenuate the taint of the initial illegality”). On the contrary,
defendant acceded to the search of his car in response to the sheriff’s erroneous claim that he had
probable cause to seize the car and “do up” a search warrant based on the thirty-day-old smell of
burnt marijuana. Defendant’s consent was “granted only in submission to a claim of lawful
authority,” and as such, it was invalid. Pitts, 2009 VT 51, ¶ 24.
¶ 24. In conclusion, we hold the officers unlawfully prolonged defendant’s traffic stop
without a reasonable, articulable suspicion that defendant was involved in drug-related crime, and
defendant’s subsequent consent to search his vehicle was invalid. Therefore, the warrantless
search was unconstitutional, and the trial court erred in denying defendant’s motion to suppress
the evidence and dismiss.
Reversed.
FOR THE COURT:
Chief Justice
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