SCOVT declines VRAP 5 appeal from denial of pretrial motion to suppress where conditional pleas is available.

State v. Lyford, 2016 VT 118 (mem.) (overruled by State v. Wesley Haynes, Tristan Harris and Dennis Magoon,2019 VT 44)

The criminal division of the superior court granted defendant's motion for permission to file an interlocutory appeal, pursuant to Vermont Rule of Appellate Procedure 5(b), from the court's decision denying defendant's pretrial motion to suppress and dismiss, which alleged an illegal canine search. For the reasons explained below, we dismiss the appeal as improvidently granted. See V.R.A.P. 5(b)(8) ("On its own or the appellee's motion, the Supreme Court may at any time dismiss the appeal as improvidently granted.").

Since 1989, a defendant, with the approval of the trial court and the State, may enter a conditional guilty plea while reserving the right to appeal "the adverse determination of any specified pretrial motion." V.R.Cr.P. 11(a)(2); id. Reporter's Notes-1989 Amendment. Generally, this Court does not accept interlocutory appeals of decisions denying motions to suppress in criminal cases unless a conditional plea is not available or practicable under the circumstances and the criteria in Rule 5(b) have been met.

This is consistent with our general rule that "an appeal will not lie to review the denial of a pretrial motion to suppress evidence on the claim of illegal search and seizure." State v. Blondin, 128 Vt. 613, 615-16, 270 A.2d 165, 166 (1970) (citing 13 V.S.A. §§ 7401, 7403 in support of "the general rule that an appeal should not be permitted in criminal causes until a final verdict, adverse to the appellant, has been rendered in the trial court," and noting that 12 V.S.A. § 2386 "affords limited variance to the general rule by granting discretionary authority" to the superior court "to permit an appeal before final judgment for the determination of questions of law"); see also ABA Minimum Standards for Criminal Justice, Criminal Appeals, Standard 21-1.3(b)-(c) (stating that defendants generally should not be permitted to take interlocutory appeals in criminal cases and that conditional plea procedure should be established to allow review after final judgment of decisions on contested pretrial motions such as motions to suppress evidence).

Although we recognize that on occasion this Court has accepted interlocutory appeals from decisions denying motions to suppress, in this case defendant has not indicated that a conditional plea is unavailable or impracticable under the circumstances, and the trial court has not made any findings indicating that the criteria set forth in V.R.A.P. 5(b) have been met. Accordingly, we decline to accept the appeal.




Appeal dismissed as improvidently granted.

SCOVT reverses drug conviction because evidence gathered after police determined defendant was not operating under the influence should have been suppressed.

State v. Nichole L. Dubaniewicz, 2019 VT 13 [filed 3/1/2019]

SKOGLUND, J. Defendant, Nichole Dubaniewicz, appeals her conviction for one count of possession of one gram or more of heroin. We find that the trial court erred in denying defendant’s motion to suppress, and therefore we reverse.

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

SCOVT vacates conviction under Rule 12(d) for lack of evidence of knowing possession of drug found in car

State v. Robert Scales, 2019 VT 7 [filed 2/2/2019]

REIBER, C.J. Defendant Robert Scales appeals the trial court’s denial of his motion to suppress and dismiss and his motion to dismiss for lack of a prima facie case. We reverse.

We agree with defendant that there was insufficient evidence to show he had any connection with the drugs except for his presence in the car. If anything, the evidence presented at the hearing—which included testimony that the bag also contained female clothing and a parking ticket associated with the driver—tended to show that the bag and its contents did not belong to defendant. The permissive inference alone, or taken together with the court’s findings, were insufficient to establish guilt or an element of the offense. See V.R.E. 303(d).

Thus, the State failed to meet its burden under Rule 12(d), and the court erred in denying the motion to dismiss for lack of a prima facie case. The motion to dismiss is reversed and the defendant’s conviction is vacated.

Divided court affirms conviction for refusal to take evidentiary breath test.

State v. Erika M. Schapp, 2019 VT 27 [filed 5/17/2019]

EATON, J. Defendant appeals a conviction of refusal to submit to an evidentiary breath test to determine blood-alcohol concentration. Defendant argues that (1) the court erroneously admitted evidence of her refusal to take a preliminary breath test (PBT), (2) the State failed to meet its burden of proving the “reasonableness” requirement for criminal refusal beyond a reasonable doubt, and (3) the State failed to prove that she refused the test. We affirm

ROBINSON, J., dissenting. The majority’s conclusion that refusal to consent to a roadside preliminary breath test (PBT) is admissible as evidence in connection with a charge of criminal refusal to take an evidentiary breath test pursuant to 23 V.S.A. § 1201(b) runs afoul of the Constitution. Because the erroneous admission of evidence concerning defendant’s refusal to submit to the PBT was not harmless, I respectfully dissent. I am authorized to state that Justice Skoglund joins this dissent.

Blood alcohol evidence suppressed because defendant reasonably believed police were recording call and reasonably felt inhibited in conferring with counsel.

 State v. Gagne, 2016 VT 68 (filed June 10. 2016).

ROBINSON, J. Before trial, defendant moved to suppress the results of his alcohol breath test on the ground that he was not able to meaningfully communicate with his lawyer before submitting to the test due to his belief—which turned out to be well-founded—that his conversation with counsel was being recorded by the police. The trial court denied the motion, and a jury convicted defendant of driving under the influence, On appeal, defendant argues that the trial court erred by denying his motion to suppress. We agree and reverse the conviction for driving under the influence.

In this case the officer forgot to turn off the recording device when defendant was about to speak to his attorney by phone. Defendant never asked the officer if he was being recorded, nor did he request that the police turn off the recording device, but throughout the booking process, defendant repeatedly stated that he knew that everything was being recorded. After a thirty minute conversation between defendant and counsel, defendant agreed to a breath sample, which resulted in a blood-alcohol concentration (BAC) of 0.121%.

Defendant moved to suppress the breath test results, arguing that defendant's belief that his conversation with counsel was being recorded caused him to feel inhibited in seeking legal advice. The court concluded that, although defendant thought his conversation was being recorded, his belief was not objectively reasonable, and he was therefore not entitled to suppression. That conclusion is a legal conclusion that we review anew, without deference.

We apply an objective test, asking whether a reasonable person in the defendant's position would have reasonably felt inhibited in communicating with counsel such that he or she was denied meaningful consultation with an attorney.

Given the officer's silence in response to defendant's multiple statements that he knew he was being recorded, we conclude that a reasonable person in defendant's position under the circumstances of this case would feel inhibited in conferring with counsel. Accordingly, the motion to suppress should have been granted, and we reverse the judgment of conviction for driving under the influence.