Pubdate: Sun, 13 Apr 2014
Source: Times Argus (Barre, VT)
Copyright: 2014 Times Argus
Contact: http://www.timesargus.com/apps/pbcs.dll/section?category=OPINION03
Website: http://www.timesargus.com/
Details: http://www.mapinc.org/media/893
Author: Carl Etnier
Note: Carl Etnier is a freelance writer who lives in East Montpelier.

STOPPING DRUGS ON VERMONT HIGHWAYS

At about 1:30 a.m. on Feb. 5, Vermont State Police Trooper Kevin
Hughes and patrol commander Sgt. Michael Studin pulled over a Chrysler
300 and a red Honda Accord traveling together on Interstate 91 in
Springfield.

Studin's affidavit says the Chrysler's windshield was cracked and one
of the Honda's taillights was cracked.

The police found one of those minor violations only after the
Chrysler's driver gave permission to search the car. Hidden inside a
spare tire in the Chrysler's trunk were 740 one-dose bags of heroin,
Studin said.

That same day, the driver and passenger in the Chrysler, Samantha
Eldred and Jose Rodriguez, of Barre, were arraigned on a charge of
felony trafficking of heroin, which carries a penalty of up to 30
years in prison and a fine of up to $1 million.

How did this seemingly routine traffic stop turn into a major drug
bust?

The troopers' deductions are indicative of how state police develop an
eye for suspicious-looking cars and phony-sounding stories from
drivers, or use intelligence from various sources to intercept some of
the growing flow of heroin into the state, according to those who
monitor and train the police.

'Good policing'

Vermont State Police rarely ask to search vehicles they stop, but when
they do they find contraband with what one researcher calls "a
remarkable success rate."

Jack McDevitt of Northeastern University co-wrote a report that
analyzed a year's worth of Vermont State Police data on traffic stops
spanning 2010 to 2011. During that time, the report states, police
searched 1 percent of vehicles they stopped, compared with 5 percent
to 15 percent in other U.S. jurisdictions. But of the 547 vehicles
Vermont State Police searched in that period, they reported finding
contraband in 73 percent of them -- compared with only 5 percent to 30
percent of the time elsewhere.

McDevitt described the success rate of searches as "good
policing."

When police search someone and don't find anything, he said, "it
becomes a really negative experience for the person who was searched.
They develop negative attitudes toward the police, and they're less
likely to report crimes and work with the police to solve crimes."

The amount of heroin in Vermont has grown rapidly in recent years.
Gov. Peter Shumlin's State of the State address in January cited $2
million in heroin and other opiates entering the state weekly, as
addicts shift from prescription opiates to heroin. The Vermont
Department of Health reports 21 people in the state died from heroin
overdoses in 2013, which is as many as in the years 2004 to 2010
combined. (There were nine deaths each year in 2011 and 2012.)

State police Capt. Matt Birmingham, who heads the Drug Task Force,
said that in Vermont's previous heroin "bubble" 15 years ago, an
investigation seizing 100 one-dose bags "would be big. Today, 1,000
bags, 5,000, 10,000 bags we're seeing in seizures. That's becoming
routine now."

McDevitt and Birmingham both pointed to police training as a reason
for the high success rate of vehicle searches in Vermont.

"Troopers are highly trained in criminal interdiction by experienced
troopers all over the country," Birmingham said. "They know what very
little things, which (to) the untrained eye might be insignificant,
but to the trained eye, put together with some other bread crumbs, can
start to paint a picture of criminal interdiction."

Spotting activity

Studin, the trooper who pulled over the 2002 Chrysler that turned out
to be transporting 740 bags of heroin, trains recruits at the Vermont
Police Academy in criminal interdiction. He went beyond the bare facts
of his affidavit on the stop to explain how he decided first to stop
the cars, then to search the Chrysler.

Studin was parked in a U-turn area at the time he heard Hughes radio
in the two cars' tag numbers and receive information that each was
registered to someone with a Barre address. That caught his attention.

"Barre is one of the destination towns for illegal narcotics," he
said. "When we hear towns like Rutland, Barre, Windsor and so forth,
those are things that spark our interest."

Hughes had not seen any violations that would give him a legal reason
to pull over the cars, but Studin noticed the cracked windshield on
the Chrysler as the cars passed, and when he pulled out, he saw the
1997 Honda's cracked taillight.

Now they had probable cause.

When Studin pulled his cruiser out of the U-turn area, the Honda
accelerated rapidly and passed the Chrysler, according to Studin. Both
had been traveling at 55 mph before that.

"It appeared as though the red car was trying to lure us to go get
him, which is something you see from time to time," Studin said. Since
two troopers were following the cars at that point, the maneuver
didn't work.

Hughes followed the Honda and pulled it over, and Studin pulled over
the Chrysler. The Honda was also searched, and no heroin was found,
though police said the search turned up 2 grams of marijuana and a
bottle of Inositol, which is used to cut the purity of heroin. The
driver of the Honda was also charged with heroin trafficking, but that
charge was later dropped.

Studin approached the Chrysler and found Eldred and Jose Rodriguez in
the front seat, and a small child in the back seat. On questioning,
Eldred told him the car belonged to her uncle.

"This is something we see quite a bit in these types of drug cases,"
said Studin. "This way we can't take ownership of the car for seizure
purposes, if it doesn't belong to them."

Other indicators of drug trafficking that Studin noted included that
the two adult passengers were not related to one another, and that
they were driving late at night on a trip Eldred told him had been to
Hartford, Conn.

"Hartford is one of the major source cities for narcotics to Vermont,"
Studin said.

About using the indicators, Studin said, "One of them by itself
usually doesn't mean much, maybe even two of them don't mean much. But
when they start accumulating, you have four, six, eight that don't
make sense, that are outside the norm of the motoring public, that's
when you should be asking to search the car."

Studin asked Eldred to accompany him to his car and questioned her
further. She admitted having what Studin paraphrased as "a little bit
of marijuana in the vehicle." Having admitted to drugs in the car, she
agreed to allow a search.

Asked why somebody carrying heroin would consent to a vehicle search,
Studin said he couldn't speak for Eldred but guessed she "believed it
was hidden well enough that we wouldn't find it."

It's easy to understand how heroin, inside the car's spare tire in the
trunk, might have seemed well hidden to the casual observer. But the
spare tire looked unusual to Studin. For one thing, it didn't fit that
particular vehicle. And the bead was off the rim, so it wasn't
inflated and couldn't be used.

"That was very odd," said Studin. "If you're going to have a spare
tire in the car, you'd think it would fit the car and be fully
inflated." Furthermore, the rim showed pry marks, indicating someone
had used improper tools to get the tire off the rim. When Studin
pulled the unattached side of the tire away from the rim, he said, he
saw a concealed package larger than a softball. He'd found the heroin.

Intelligence

In other cases, it's intelligence about a particular vehicle that
leads to an initial traffic stop. Birmingham said the task force's
covert network of informants was one source of intelligence. "We pass
information on to troopers all the time about drug runs that are happening."

Both Birmingham and Studin cited widespread sharing of information
across Vermont law enforcement, with other states, and with federal
authorities.

For example, driving a Vermont-registered car in the wrong part of
town in Holyoke or Springfield, Mass., is enough to get the attention
of Vermont troopers. Gary Scott, head of the state police's Traffic
Operations Unit, said police in those cities notify Vermont State
Police when they see a car with Vermont plates in what he called
"known drug areas."

Vermont troopers can then check databases to see whether the car owner
"has any type of drug involvement or things in the past. Past
indicators can lead to that type of behavior still going on."

Armed only with tips, Vermont police look for some sort of violation
- -- changing lanes without signaling, or an object like fuzzy dice or
air freshener dangling from the rearview mirror . The stop gives them
the opportunity to find a reason to ask the driver to allow a search
or, if the driver refuses and the trooper has already found probable
cause of a crime, to get a warrant.

However, police must tread carefully when requesting to search a
vehicle. Both federal and Vermont courts allow police to stop a car to
look inside or question someone inside it about drugs, as long as they
have probable cause to believe a violation has occurred, even if it's
just a cracked taillight. But a large number of court cases have
revolved around when a person stopped by one or more armed officers is
coerced or truly feels free to consent to a search.

For example, Studin carefully specified that when he asked Eldred to
get out of her vehicle and sit in his car for questioning, that he
told her there would be no consequences if she declined. That's after
a 2003 Vermont Supreme Court decision in State v. Sprague threw out a
driver's conviction for marijuana possession.

The trooper in that case had asked a driver pulled over for speeding
to come to his cruiser for questioning. Once the driver was out of the
car, the trooper asked to search him for weapons and found marijuana.
The court ruled that the trooper, through his choice of words, had
illegally coerced the defendant to exit the vehicle, making the search
illegal.

Last year in another case, State v. Betts, the Vermont Supreme Court
threw out a cocaine conviction because a trooper had given the
defendant a choice without a choice: Consent to a search, or I'll go
to the barracks and get a warrant for a search. It was an empty
threat; the Supreme Court wrote that the trooper's observations were
not enough to trigger a search warrant.

In at least three other drug cases in the last two years, courts have
ruled that Vermont State Police have gone too far in turning a traffic
stop into a vehicle search or, in one case, that the traffic stop
itself was unwarranted.

Slippery slope

The source of intelligence also is important for the constitutionality
of searches. In the Betts case, for example, the trooper had received
information from a confidential informant that the defendant was
carrying cocaine. The trooper followed the car for almost three hours
without finding indicators of drug trafficking.

Nonetheless, the informant's tip would have been probable cause under
Vermont law if the informant or the informant's tip was deemed
credible. The court ruled the unnamed informant's tip was not
credible. Cases like this seem to have helped make Vermont police
cautious about initiating searches.

Scott, of the Traffic Operations Unit, said, "We want to make sure we
have an actual violation. That's what we harp on all the time with the
troopers. They can't just be stopping cars. If they walk up to a car
and there are no indicators -- maybe it's got the mother lode in it --
that's it. They need to cut their losses and move on. We don't want
the bad case law."

Defense attorney David Sleigh questions the use of indicators. He
expressed skepticism that indicators can be useful, calling them
"meaningless gloss." Told about how Rodriguez's and Eldred's Honda and
Chrysler attracted initial attention from state police because they
appeared to be traveling north together to a drug hot spot, Sleigh
pointed out that most of Vermont is north of Springfield, where this
stop took place -- and there are a lot of towns that could be
considered drug hot spots.

"If you have articulable probable cause that a specific person is
trafficking drugs, stop him on that basis, and don't add all this
meaningless stuff," he said.

Sleigh also objected to police asking any questions of drivers stopped
for minor traffic violations, other than for license and registration.
However, the court decisions he provided showed courts giving latitude
to police to ask investigatory questions, as long as the questioning
is "reasonable and tailored to" the officer's "objective and
particularized basis for suspecting additional wrongdoing," as the
U.S. District Court for Vermont put it in a 2012 decision. Drivers and
passengers are not required to answer the questions.

Last year, the news agency Reuters revealed that the federal Drug
Enforcement Agency was passing tips to other law enforcement agencies
based on warrantless wiretaps and instructing the agencies to conceal
the source of the tips. According to the article, the DEA told the
agencies to use "parallel construction" to make up a plausible
scenario for prosecutors and the courts about how they came to suspect
a defendant. When asked about use of parallel construction, both
Studin and Scott said they had no knowledge of it happening in Vermont.

More data?

In the face of the vast uptick in heroin trafficking in recent years,
have Vermont State Police continued to be "remarkably successful" in a
low rate of searches and a high rate of finding contraband?

Robert Appel, who stepped down earlier this year after 13 years as
executive director of the Vermont Human Rights Commission, is upset
that we don't know. The data McDevitt studied were from about the time
the current large volumes of heroin began entering Vermont. The state
police have nearly three more years of data on traffic stops, which
also contain information about the extent to which state police
conduct bias-free policing.

"They won't do further analysis on it, because they say they have no
money in a $100 million budget," Appel said.

Vermont State Police Maj. Bill Sheets, head of its bias-free policing
program, said the department would request a bid from McDevitt to
extend his analysis to the new data, after this fiscal year ends June
30.

Carl Etnier is a freelance writer who lives in East Montpelier.
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