Search Shot Down in Vermont:

[Nagognog2]

Supreme Court rules search illegal, tosses drug evidence

Published: Thursday, May 31, 2007


A South Burlington police officer's search of a man following a roadside stop was illegal because the officer lacked cause to frisk the driver for drugs or make an arrest but proceeded anyway, the Vermont Supreme Court said in a recent ruling.

A unanimous high court threw out as evidence the discovery of 24.7 grams of cocaine in the pocket of Philip Chicoine, 42, of Winooski because the search violated the Vermont and U.S. constitutions, justices ruled. Without evidence, prosecutors must dismiss the case, Deputy Chittenden County State's Attorney Brooks McArthur said Wednesday.

"The investigating officer lacked probable cause to arrest, so the warrantless pat-down search was not justified," the court wrote in a four-page opinion called an "entry order," a term applied to rulings that neither make nor define new legal ground and instead apply statutes already on the books.

Chicoine, who has been free since the Dec. 30, 2004, incident, had pleaded guilty to drug-possession charges pending the appeal but will withdraw that admission. Chicoine's attorney, William Norful, also said he is "90 percent" sure he will file a lawsuit against the officer, Jack O'Connor, alleging civil-rights violations.

O'Connor faced public accusations two years ago of racial profiling when he confiscated thousands of dollars in cash from a Burlington minister during an investigation into "suspicious activity" possibly involving drugs, but no contraband was found and no charges were filed. Norful said O'Connor's history means a civil action could be the only way for him to learn proper police procedure -- despite the fact that the officer instructs colleagues on the topic.

"O'Connor, constitutionally, is a moving violation," Norful said. "He doesn't know the Constitution."

Chicoine is French Canadian, and Norful said race played no part in the incident.

O'Connor was off duty and unavailable for comment Wednesday, but his tactics have advocates. District Judge Edward Cashman upheld the search and arrest as legal; prosecutors defended the officer's actions; and Wednesday, McArthur and South Burlington Police Chief Trevor Whipple said they believe the facts supported O'Connor.

"We were concerned about potential destruction of evidence. This person was acting in a manner that was suspicious," Whipple said. O'Connor "did what he thought was best at the time. Now we regroup and say, 'The Supreme Court made it clear.' It helps us understand the lines."

Chicoine was arrested after O'Connor saw him drive away from a house that police were monitoring for possible drug activity. The officer stopped Chicoine for having a dim brake light but then questioned him about drugs, asked him to step out of the car, placed him in handcuffs, frisked him and removed the package of cocaine, according to court papers.

The officer argued that the search was justified because Chicoine drove away from a "suspected drug house," appeared to try to dispose of drugs, gave evasive answers and shielded the pocket in which the drugs were hidden, according to the Supreme Court. Justices and Norful said O'Connor overreached because mere suspicion of illegal conduct fails to establish directly the probable cause necessary for an arrest or search.

"He said, 'I pulled you over because your taillight was out, and oh, by the way, do you have any drugs?' And you can't do that," Norful said. "The level of inquiry a police officer is allowed to make must be reasonably related to the basis of the stop."

McArthur said the case hinged on judicial interpretation: "Frankly, it boils down to a difference of opinion between a District Court judge and the Supreme Court, and the Supreme Court is the law of the land."

Reputation Comments on this post:

good find.

[podge]

What a result ! Swim doesnt like the sound of this O Connor.....or any police officer who starts abusing their power for that matter. I wonder if the defendent tryed to push his luck and demand his package back as it was confiscated illegaly.....

[Police Officer]

Originally Posted by podge

I wonder if the defendent tryed to push his luck and demand his package back as it was confiscated illegaly.....

lol

What do you think the odds are of that happening?

[stoneinfocus]

There´s no pushin´ luck, if it was confiscicated earlier, by means that are not in line with the law, he can of course demand it back, in terms of law, it´s like it´s never existed in any record or, for any legal purpose, allowed to be registred and used against the owner, but to give the property back to the designated owner.

I always wonder how everyone stops at a point wher one could go ahaed in line with the law, just because somehow you feel like you did something wrong, and the lion´sgoing to chase you down at night, if you´re really taking your rights for granted.

That´s a good decision, just driving by, at a house, that´s monitored for drug activities and then being controlled for a dim light and -just in case, for this offense, is not what I would call police-work... it´s chasing down anyone, who´s remotely and/or by hazard somehow between the lines of a supposed to be crime scene, which is terrorizing with executiv constitutional power and that shall not be!

-but happens to be so, whenever an alternative culture, that´s not capitalistically motivated or commercially fucked-up, on the rise, but hey, conservatives are always right, you see, he found cocaine, so he must be right, damn did he right!

[podge]

True he should be intitled to his "package" back....but he really would be pushing his luck to think he wasnt gonna get busted shortly afterwards. lol.

[Rio Fantastic]

I don't know about this. It seems like the police officer did appear to have good reason to suspect the man had drugs on him, and after finding them, the police officer is going to be punished for it? That seems a bit unfair on somebody who is just trying to do his job.

[podge]

Originally Posted by podge

True he should be intitled to his "package" back....but he really would be pushing his luck to think he wasnt gonna get busted shortly afterwards. lol.

Iv never got quote myself before.

[stoneinfocus]

Originally Posted by podge

Iv never got quote myself before.

Would be intresting to hear about this handling of evidence.

I would say, if a judge declared the whole prodcedure to be wrong, the state has to give back all properties and evidence, putting the situation back to the point of where it had never happened.

He would get his package back ,which would be labled as "evidence L/5F23" sitting in a bag and no-one ever would have a business to get you busted, because of knowing what it is or suspecting to know.


You´d grab it walk out of there, the officer will be on the streets and most likely have forgotten about you, your car and details, nor would he be able pusuiting you and you´d go home, unattached.

This is, of course only the way, swim yould imagine this, how a free justice would or should handle it.

[stoneinfocus]

that´s not a job, and certainly not police work, to generalize evryone to be a suspect, just because he has some whitish, poder at his nostrils, or becuae he walks by a suspicious place.

Police work is based on evidence and consecutive investigation of evidence and not controlling anyone that seems of be like a suspect.

[Bajeda]

Originally Posted by Nagognog2

"We were concerned about potential destruction of evidence. This person was acting in a manner that was suspicious," Whipple said. O'Connor "did what he thought was best at the time. Now we regroup and say, 'The Supreme Court made it clear.' It helps us understand the lines."

I love particular rationalizations used by law enforcement at times. "He was looking suspicious" What exactly does that mean? The definition can change, from looking like a pot smoking hippie to simply being black. As a cop I'm sure you need to trust your gut at times, but you can't just ignore the laws set down to protect our freedoms.

Originally Posted by Nagognog2

The officer argued that the search was justified because Chicoine drove away from a "suspected drug house," appeared to try to dispose of drugs, gave evasive answers and shielded the pocket in which the drugs were hidden, according to the Supreme Court. Justices and Norful said O'Connor overreached because mere suspicion of illegal conduct fails to establish directly the probable cause necessary for an arrest or search.

A "suspected drug house"? You mean like how Ms. Kathryn Johnston's house was a "suspected drug house"?

Suspicion, suspicion, suspicion.... Report everyone!!

[chrisn]

Police in Vermont definitely seem to be trying to find drugs a lot these days. SWIM's friend, who is a bit of a reckless driver, was pulled over for speeding and not coming to a full stop for a right on red. First the cop asked if SWIM's friend had been drinking (which he hadn't), then the cop accused SWIM's friend of being high, and then for a good 5 minutes tried to coerce him into admitting he had smoked (which he hadn't) and to handing over the pot. He had absolutely no reason to believe this as the car had no smell, and the typical pot smoker doesn't drive fast at all. SWIM's friend just firmly said no, and after a while the cop gave up, looking fairly disappointed, and just wrote a quite expensive ticket. Maybe the fact that SWIM was wearing Pink Floyd pants didn't help, but he got to keep the bud that was in his pocket and smoke it later

[allyourbase]

I hope jack o'connor has to give up a half every single one of his meter-maid paychecks to pay restitution for violating this mans civil rights. I was once accused of driving away from a "suspected drug house" myself, and after a half hour search of my person and vehicle, the fascist finally allowed me to explain that the "drug house" was my aunt's place, and that I was feeding her exotic fish while she was on vacation.