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State v. Nagel, 2020 VT 31
This is another traffic-stop-expansion case. We would stop having these cases and SCOV would stop reversing these cases if traffic stops would stop getting unlawfully expanded. Just sayin’.
Here’s what happened. A deputy sheriff ran a registration check on a vehicle (why? Unclear, but not impermissible) and learned it belonged to Mrs. Nagel. He knew Mrs. Nagel was married to Mr. Nagel, and that Mr. Nagel had a suspended driver license. The sheriff also remembered that Mr. Nagel visited residences that were associated with suspected drug activity. He looked at the driver, believed it was Mr. Nagel, and pulled him over.
So far, so good. Mr. Nagel doesn’t have a license. You need a license to drive a car lawfully. Mr. Nagel didn’t appear to be driving the car lawfully. The police may pull him over.
The deputy then spoke to Mr. Nagel, confirmed that his license was suspended, and said he’d issue a citation with a future court date. Mr. Nagel reasonably expected he’d be on his way in a short time. The deputy went back to his cruiser and apparently said to another deputy that he was going to make Mr. Nagel think the citation would be the end of it, but would then really ask to search his car.
A different deputy asked Mr. Nagel to get out of his car and patted him down. Then the first deputy asked to search. Mr. Nagel said there were no drugs in the car, to which the police responded that they knew he was associated with people who sell drugs and therefore they wanted to search his car. When he continued to disagree, the deputy lobbed a police favorite: that they’d impound his car and get a warrant and search it anyway, and then for good measure added that they had plenty of probable cause because he smelled a faint hint of burned marijuana.
Dude. This is Vermont. Much of the state smells faintly of burned marijuana.
Mr. Nagel finally agreed to the search. The police searched and found some heroin and also some prescription drugs of some sort. Curiously, there’s no indication here that they found marijuana. Hmm.
Mr. Nagel was cited and challenged the legality of the extension of the search. The trial court denied his motion and he pled guilty on the condition he could appeal to the Vermont Supreme Court.
The Vermont Constitution provides greater protections to citizens against unlawful searches and seizures than does the Fourth Amendment. Because this case involves the review of a constitutional issue, the Supreme Court reviews de novo, or anew, on the legal issues. Because a suppression motion involves a mixed question of fact and law, the Supreme Court also looks at the factual findings, but reviews those only for clear error.
Mr. Nagel concedes the original traffic stop was fine. He didn’t have a license, he broke the law by driving without a license; he got caught fair and square. The problem was when the police decided to expand the scope of that stop to ask to go on a fishing expedition to find drugs that may or may not be there. Sure, Mr. Nagel may have been suspected of engaging in drug activity, and he may have been known to have gone to drug-related locations, but none of that was an issue in the context of this traffic stop. All they actually really concretely knew was that Mr. Nagel drove without a license.
Chapter I, Article 11 of the Vermont Constitution protects citizens against unreasonable searches and seizures. It’s well-settled law that when a law enforcement officer turns on his or her take-down lights to stop a car that it’s a seizure. Any seizure has to be based on probable cause, which isn’t as much as a preponderance of the evidence, but is certainly more than a hunch. And a seizure can only last as long as it needs to last for law enforcement to investigate the issue presented by the original probable cause. However, a seizure can be expanded if actual new probable cause presents itself.
So, let’s suppose the facts were different. Suppose the deputy saw Mr. Nagel driving without a license and stopped him. So far, so good. But upon approaching the car, suppose the deputy was able to see through the window that Mr. Nagel had a visible brick of heroin sitting on the front seat next to him. At this point the deputy has new information related to a criminal offense, and he got that information in an entirely lawful way. The deputy may now expand the original seizure to investigate this additional information.
Law enforcement officers cannot, however, expand an original seizure to go fishing around in the hopes of finding new information to justify the expansion of the search. In criminal procedure, the ends don’t get to justify the means. The means need to bring the goods in order to support the ends. Or something like that.
In Mr. Nagel’s case, the police didn’t have any actual information that he had drugs in the car. They just suspected he might because of tangential information they knew about his movements and associates. Law enforcement also tried to say the odor of 30-day old burnt marijuana justified a search but that’s stupid in this context and I’ll tell you why: there was no evidence that Mr. Nagel was burning marijuana in his car at the time of the stop. Here’s the thing about smells: they linger and get trapped in fibers. One of my friends in high school inherited the old family car as her car. Her dad was a pipe smoker. They also had a Saint Bernard. She was a great friend and she kept her car really clean, but it smelled so strongly of historical pipe and dog nobody ever wanted to ride with her. If possession of a dog could be used to expand a seizure, she would have gotten searched every other dang day, even though it would have been patently obvious when the saint Bernard was or was not in the car.
The point here is that even though Mr. Nagel may have been known to police as someone involved in some amount of drug activity, there was no evidence that on this day he was doing that.
We’re not done. The sheriff deputy then decided he was going to take some time in doing his paperwork as a way to expand the timeframe and, I guess, bring additional investigation under the umbrella of the original stop. Except that doesn’t work, either.
Just making something take longer doesn’t locate additional sufficient facts upon which there may actually be probable cause to extend the stop. It just makes it take longer. The State tried to argue that the deputy was still completing his paperwork for the suspended license issue when additional investigation was started. SCOV bats this away and says the record supported a finding that the deputy wasn’t done with the paperwork because he chose not to finish it so that they could expand the seizure.
A deputy ordered Mr. Nagel out of his car, patted him down, and then asked to search the car. Mr. Nagel said no. That’s when the deputy said he had authority to seize his car, but actually he didn’t, and now there’s a new problem.
Eventually Mr. Nagel consented to the search, but the problem there is that (a) it was done as a part of an unlawful detention and (b) his consent may not have been given voluntarily.
Generally, consent obtained during an illegal detention is invalid. However, sometimes even in an illegal-detention situation consent can be validly given. But to determine whether that’s the case, the court has to examine the totality of the circumstances surrounding the consent. Because the State would be the proponent of the consent, the State has the burden of demonstrating the consent was given validly, and not as a product of threats, force, or coercion.
Here, Mr. Nagel was under an unlawfully extended seizure. Nothing occurred during that time to make the seizure lawful. In fact, the longer the seizure lasted, the worse the facts got, as the deputy incorrectly told Mr. Nagel he had the authority to seize the car based on an old, lingering smell of burnt marijuana. So, no. Not better.
So, SCOV reverses this one.