• Stopping drugs on Vermont highways
    By
     | April 13,2014
     

    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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