NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                            2019 VT 37

                                           No. 2017-365

State of Vermont                                                 Supreme Court

                                                                 On Appeal from
   v.                                                            Superior Court, Chittenden Unit,
                                                                 Criminal Division

Treyez L. McEachin                                               March Term, 2019


Nancy J. Waples, J. (motion to suppress and dismiss and motion for reconsideration);
Dennis R. Pearson, J. (judgment)

Sarah George, Chittenden County State’s Attorney, Andrew McFarlin and Zachary J. Chen,
 Deputy State’s Attorneys, Burlington, for Plaintiff-Appellee.

Matthew Valerio, Defender General, Rebecca Turner, Appellate Defender, and Anna Saxman
 and Amanda E. Quinlan, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.


PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.


        ¶ 1.   ROBINSON, J.         Defendant Treyez McEachin was convicted of three charges

pursuant to a conditional plea that preserved his right to appeal the denial of his motion to suppress

and dismiss. Defendant was charged with disorderly conduct based on fighting or violent,

tumultuous, or threatening behavior, as well as resisting arrest and simple assault on a police

officer. He argues that because his conduct in walking toward a police officer was not disorderly,

the disorderly-conduct charge should be dismissed. He contends that because the officer then

wrongfully prolonged their encounter, all evidence of his subsequent conduct, including his assault

of the officer well after he was taken into custody, should be suppressed, and the assault charge
should be dismissed. We agree that the disorderly-conduct charge should be dismissed, and

accordingly reverse the denial of the motion to dismiss that charge. We affirm the denial of the

motion to suppress the evidence underlying the assault charge, and affirm that conviction.

       ¶ 2.    The evidence presented at the hearing on defendant’s motion to suppress and

dismiss, viewed in the light most favorable to the State, is as follows. On New Year’s Eve in 2016,

four police officers were on foot patrol in Burlington when they received a report that a man was

spitting on the window of a local bar. They went to investigate and found defendant outside the

establishment. One of them, Officer Derek Hodges, said that defendant “was immediately verbally

combative”1 and called the officers “a death squad.” They asked defendant what was going on,

and defendant replied that he had been fired from his job. The officers asked defendant to leave,

and he did.

       ¶ 3.    Minutes later, defendant came walking down the sidewalk back toward the bar.

Officer Hodges could not recall where defendant was initially looking, but said, “I believe we saw

each other and made eye contact.” Officer Hodges testified that defendant “changed his trajectory

so he was walking directly towards me.” He said defendant “was looking away from me . . . as if

he was trying to . . . make it appear that he [wa]s not watching where he was going.” Defendant

came within four feet of Officer Hodges, and Officer Hodges put his arm out and pushed defendant

back; Officer Hodges said that if he had not done so, they would have collided. Officer Hodges

considered this “an officer safety issue” because of defendant’s earlier behavior outside the bar.

Officer Hodges said defendant looked surprised when he pushed him. Defendant stepped back



       1
         The trial court found, based on its review of the body-camera footage, that “[a]s he spoke,
Defendant’s body language was relaxed, and his tone of voice was calm.” In light of our duty
given the procedural posture to review the evidence “in the light most favorable to the State,” and
because the body camera may not have captured the beginning of the officers’ interaction with
defendant, for the purposes of our nondeferential review of the sufficiency of the evidence as a
matter of law, we credit Officer Hodges’s testimony that defendant was verbally combative
immediately after the officers’ arrival. State v. Scales, 2019 VT 7, ¶ 8, __ Vt. __, __ A.3d __.
                                                  2
and put his hands up. He exclaimed, “I was walking by.” Officer Hodges replied that defendant

had been in his personal space. Defendant told the officers he was going to his bus stop, which

required continuing down the street past the bar. The officers ordered him not to go that way.

       ¶ 4.    Defendant began yelling profanities. Officer Hodges said he told defendant to leave

and “actually kind of turned my back to kind of try to end the encounter,” but defendant stayed

where he was. Officer Hodges testified that “[a]fter he refused to [leave] and he started using more

profanities, that’s when we decided to take him into protective custody.” At the hearing, Officer

Hodges said that he considered defendant’s yelling “tumultuous,” but that he did not observe any

behavior by defendant that would indicate defendant might physically injure someone or become

violent.

       ¶ 5.    As the officers put defendant into a cruiser, he made his body go limp. He was

charged with resisting arrest for this conduct.2 Sometime after defendant was taken into custody,

he kicked a police officer.3

       ¶ 6.    Defendant was charged with disorderly conduct, simple assault, and resisting arrest.

He moved to suppress all evidence following the push and order not to walk by the bar, arguing

that they constituted an illegal stop and seizure without which none of his behavior that formed



       2
          Before oral argument, the State filed a notice of supplemental authority and concession
of error with this Court, explaining that because a taking into protective custody is not an arrest, it
did not oppose vacatur and remand of defendant’s conviction for resisting arrest. As it is this
Court’s general practice to reverse without discussion when the State has confessed error, we
vacate the conviction for resisting arrest. See State v. Vezina, 2015 VT 56, ¶ 20, 199 Vt. 175, 121
A.3d 1195.
       3
          At the hearing on defendant’s motion to suppress and dismiss, the parties’ evidence was
focused almost exclusively on the disorderly-conduct charge. The State did not introduce any
evidence concerning the assault charge. Defendant’s motion to dismiss, citing Officer Hodges’s
affidavit of probable cause, recounts that the alleged assault occurred after defendant was
transported first to the “ACT 1” facility, which declined to admit him, and then to the University
of Vermont Medical Center, where defendant allegedly struck Officer Hodges in the shoulder with
his foot while officers attempted to “extract” him from the police cruiser and place him in a
wheelchair.
                                                 3
the basis for the three charges would have occurred. He also argued that the disorderly-conduct

charge should be dismissed because there was insufficient evidence to support it. The State

countered that no illegal stop or seizure occurred: The temporary detention of the push was

justified because it would have been reasonable for Officer Hodges to believe he was in danger

when defendant walked toward him, and the officers had a reasonable basis to keep defendant from

walking by the bar. As to the disorderly-conduct charge, the State argued that “there is sufficient

evidence that the second interaction with the officers, taken in its entirety, did constitute disorderly

conduct by tumultuous behavior” because “[t]he combination of coming directly towards Ofc.

Hodges and nearly colliding with him and the violent verbal outburst made the defendant’s conduct

tumultuous.”

       ¶ 7.     The trial court held that Officer Hodges was justified in pushing defendant as an

act of self-defense, but the officers had no reasonable basis to order defendant to avoid walking by

the bar. It suppressed defendant’s statements made in response to the officers’ order to avoid the

bar, reasoning that the statements were the result of the officers having wrongfully prolonged their

encounter with defendant. The State did not challenge that suppression ruling on appeal. With

respect to the disorderly-conduct charge, the trial court concluded that, even excluding the

suppressed evidence concerning defendant’s verbal outburst following the order to go around the

bar, the evidence that defendant had walked toward Officer Hodges in such a manner that they

nearly collided was sufficient to support the disorderly-conduct charge. The trial court did not

directly address the assault charge, but by limiting its suppression order only to the statements

defendant made during the exchange following his encounter with Officer Hodges, rather than

extending it to everything that happened thereafter, the court essentially allowed the State to

proceed with that charge.

       ¶ 8.     Defendant moved for reconsideration, arguing that the suppressed statements had

provided the basis for the disorderly-conduct charge, and without evidence of those statements,

                                                   4
the charge should be dismissed. The court denied the motion, reasoning that defendant’s move

toward Officer Hodges could support the charge.

       ¶ 9.    Defendant and the State subsequently entered into a conditional plea agreement

pursuant to which defendant pled no contest on all three charges and could appeal the trial court’s

findings and orders regarding his motion to suppress and dismiss. See V.R.Cr.P. 11(a)(2).

       ¶ 10.   On appeal, defendant renews his argument that the disorderly-conduct charge

should be dismissed, arguing that his behavior could not be characterized as fighting, violent,

tumultuous, or threatening, as the statute requires. He also argues that because the trial court found

that the officers unlawfully prolonged the stop, it should have suppressed all subsequent evidence,

including the evidence of his later action in kicking a police officer.

       ¶ 11.   The State contends that defendant’s conduct of attempting to collide with the officer

constituted violent, tumultuous, or threatening behavior. It argues that because it had authority to

take defendant into protective custody,4 the offense of simple assault on a police officer, which

occurred while defendant was in protective custody, was causally unconnected to the order to stay

away from the bar, and thus even if that order wrongfully prolonged the encounter, suppression of

the assault is not warranted.

                                   I. Disorderly-Conduct Charge

       ¶ 12.   We conclude that the evidence, taken in the light most favorable to the State, does

not tend to show beyond a reasonable doubt that defendant committed the offense of disorderly

conduct through fighting or violent, tumultuous, or threatening behavior, and accordingly reverse

the trial court’s denial of defendant’s motion to dismiss.




       4
           Defendant did not contest the officers’ taking him into protective custody until oral
argument, at which point he argued there was no basis for the protective custody. We generally
do not consider issues raised for the first time at oral argument, and we decline to do so here. State
v. Sullivan, 2013 VT 71, ¶ 26 n.*, 194 Vt. 361, 80 A.3d 67.
                                                    5
       ¶ 13.   Whether the State has met its burden under Vermont Rule of Criminal Procedure

12(d) is a question of law, which we review without deference to the trial court. State v. Scales,

2019 VT 7, ¶ 8, __ Vt. __, __ A.3d __. Rule 12(d) allows a defendant to “move for dismissal of

the indictment or information on the ground that the prosecution is unable to make out a prima

facie case,” and the court must dismiss the indictment or information if the State “does not establish

by affidavits, depositions, sworn oral testimony, or other admissible evidence that it has

substantial, admissible evidence as to the elements of the offense . . . sufficient to prevent the grant

of a motion for judgment of acquittal at the trial.” V.R.Cr.P. 12(d)(1)-(2). In making this

determination, the court reviews the evidence “in the light most favorable to the State, excluding

modifying evidence” to determine whether it “would fairly and reasonably tend to show defendant

committed the offense, beyond a reasonable doubt.” Scales, 2019 VT 7, ¶ 9 (quotations omitted).

In this case, the sole evidence presented at the hearing on defendant’s motions to suppress and

dismiss was the testimony of two officers who were at the scene and three clips from their body-

mounted cameras. We rely solely on this evidence in assessing the sufficiency of the State’s case

as to disorderly conduct. See id. ¶ 16 (rejecting State’s invitation to review officer’s affidavit of

probable cause in reviewing trial court’s denial of defendant’s motion to dismiss because court

should review only evidence actually presented to trial court in Rule 12(d) hearing).

       ¶ 14.   A person commits the offense of disorderly conduct by “engag[ing] in fighting or

in violent, tumultuous, or threatening behavior” with an “intent to cause public inconvenience or

annoyance, or recklessly creat[ing] a risk thereof.” 13 V.S.A. § 1026(a)(1).5 While attempting to

collide with a police officer could in some circumstances constitute disorderly conduct, the

evidence here is insufficient to fairly and reasonably tend to show beyond a reasonable doubt that,



       5
          The disorderly-conduct statute identifies four other bases for a disorderly-conduct charge
that are not applicable here. See 13 V.S.A. § 1026(a)(2)-(5).

                                                   6
by walking toward Officer Hodges, defendant engaged in fighting or violent, tumultuous, or

threatening behavior.

       ¶ 15.   The evidence does not show that defendant engaged in fighting. “Fight” means “to

contend in battle or physical combat.” Fight, Merriam-Webster Online Dictionary, Merriam-

Webster.com [https://perma.cc/CQ7U-W769]. We have held, for example, that punching another

person can be fighting. State v. Albarelli, 2016 VT 119, ¶ 21, 203 Vt. 551, 159 A.3d 627. There

is no evidence in the record of physical combat; the record, viewed in the light most favorable to

the State, simply shows that defendant approached an officer too close, and the officer pushed him

back.6 The testimony of Officer Simon Bombard, one of the officers with Officer Hodges,

describing the moment when defendant walked toward Officer Hodges, underscores this point:

                        Q:    And when [defendant] arrived at your location, what
                              happened?

                        A:    He approached us again.

                        Q:    How did he approach you?

                        A:    How was his demeanor?

                        Q:    No, how did he approach you physically?

                        A:    He walked up to us.

                        Q:    And when he arrived, what happened?

                        A:    We engaged in another verbal conversation with him.

                        Q:    Specifically, before the verbal conversation, what
                              happened between him and any other officers who
                              were there?

                        A:    He approached Officer Hodges and Officer Hodges
                              had to push him back.


       6
          The State introduced body-camera footage, centered on Officer Hodges, that shows
Officer Hodges reach his arm out of the frame, then pivots to show defendant standing with his
hands up, saying “I was walking by.” There is no body-camera footage that shows defendant’s
approach to Officer Hodges.
                                              7
Officer Bombard then said he believed Officer Hodges had pushed defendant because defendant

had been aggressive the first time they spoke, and it was uncommon for someone in that situation

to return, so he believed defendant returned to confront the officers. Officer Bombard noted that

officers are trained to keep “a reactionary gap of at least five feet,” and Officer Hodges pushed

defendant because he had come closer than that. The officers’ testimony—while it might indicate

defendant was angry and behaving oddly—did not indicate defendant was engaged in anything

approaching fighting.

       ¶ 16.   We reject the contention that defendant engaged in violent behavior for similar

reasons. “Violent” means using “unjust and improper force.” State v. Amsden, 2013 VT 51, ¶ 18,

194 Vt. 128, 75 A.3d 612 (quotation omitted). We have found that the evidence supported a

finding of violent behavior where a defendant “kicked and resisted arrest and had to be restrained

with ankle cuffs, handcuffs, and a seatbelt” and attempted to bite a police officer. State v. Begins,

147 Vt. 45, 47, 509 A.2d 1007, 1008 (1986). Likewise, we found that the evidence supported a

finding of violent behavior where the defendant struck a woman on the arm, leaving a red mark.

State v. O’Connell, 147 Vt. 60, 67, 510 A.2d 167, 171 (1986). Here, however, there is no evidence

that defendant used any amount of force on Officer Hodges, let alone unjust and improper force.

       ¶ 17.   Likewise, the evidence does not support the charge that defendant engaged in

tumultuous behavior. While we have never conclusively defined “tumultuous behavior,” we have

relied on the dictionary definition of “tumult” to inform our understanding that it can mean “the

commotion and agitation of a large crowd” or a “violent outburst.” State v. Lund, 144 Vt. 171,

179, 475 A.2d 1055, 1060 (1984) (quotation omitted), overruled on other grounds by State v.

Dumont, 146 Vt. 252, 499 A.2d 787 (1985) and State v. Begins, 148 Vt. 186, 531 A.2d 595 (1987).

We have found that a hospitalized defendant engaged in tumultuous behavior when she was loud

and disruptive and repeatedly banged her hospital bed into the wall. Amsden, 2013 VT 51, ¶ 19.

For the same reasons that the evidence cannot support the charge that defendant engaged in

                                                 8
fighting or violent behavior, it does not support the charge that he engaged in tumultuous behavior.

The officers’ testimony—which is the only evidence as to what happened when defendant walked

up to Officer Hodges—does not indicate that defendant agitated a crowd or was engaged at that

time in a violent outburst or that his behavior was otherwise tumultuous. Officer Hodges’s

testimony is particularly instructive on this point. Officer Hodges acknowledged that as defendant

walked toward him, defendant’s arms were not swinging, he was not kicking, and his gait was

normal. When defense counsel asked, “Besides yelling and being very angry, did you, at any

point, observe [defendant] with clenched fists or any behavior that would indicate that he was

physical[ly] threatening anyone,” Officer Hodges answered, “Yes, I would say yelling the things

that he was yelling . . . is tumultuous behavior.” When asked if defendant’s conduct—“not what

he was yelling”—would indicate that he might injure someone or become violent, Officer Hodges

said no. Because the trial court’s order appeared to suppress both the fact and content of

defendant’s yelling, and we construe it as having done so, the only evidence that could support the

disorderly-conduct charge is the evidence of defendant’s conduct in walking toward Officer

Hodges, which Officer Hodges said did not indicate intent to injure or become violent. This clearly

does not rise to the level of tumultuous conduct. Even if the trial court had not suppressed the fact

of defendant’s subsequent yelling, the evidence would still not fairly and reasonably tend to show

defendant engaged in tumultuous conduct.

        ¶ 18.   Finally, we conclude that the evidence could not support a finding that defendant

engaged in threatening behavior, although this is the closest question. Threatening “behavior must

convey the intent to do harm to another person.” State v. Albarelli, 2011 VT 24, ¶ 18, 189 Vt.

293, 19 A.3d 130. The standard is “objective and turn[s] on how a reasonable person would view

defendant’s behavior.” Id. ¶ 14. For example, we have found that where a defendant grabbed an

officer’s flashlight and tried to take it, “the jury could find that the defendant attempted to take the

flashlight away from the officer to use as a weapon against him” and “the act of grabbing the

                                                   9
flashlight could be found to be threatening behavior, done to communicate the intent to harm.”

State v. Cole, 150 Vt. 453, 456–57, 554 A.2d 253, 255 (1988). In contrast, we found a defendant

did not engage in threatening behavior where he stood near a volunteer supporting the Obama

presidential campaign and came within two feet of one witness, ranted for twenty minutes against

the Obama candidacy, and occasionally gesticulated wildly. Albarelli, 2011 VT 24, ¶ 22. We held

this gave “no indication that he was going to harm” anyone. Id. We noted that the defendant’s

rant “did not target a specific individual” and his behavior had no “significant physical

component,” and that the absence of an explicit threat was not overcome by “a strong implication

that harm may come to [a particular person]” or a “comment or act coupled with an aggressive

move toward the victim.” Id. ¶¶ 20-23 (quotation omitted).

       ¶ 19.   While walking on a collision course toward a police officer could, like attempting

to take an officer’s flashlight, communicate an intent to harm the officer, walking at a normal gait

to within four feet of an officer, without any accompanying threatening words or gestures, does

not. This case is closer to Albarelli than Cole. Defendant’s behavior in returning to the group of

officers, at some point possibly looking at Officer Hodges and then looking away as he

approached, and coming within four feet of Officer Hodges had a more significant physical

element than the defendant in Albarelli’s conduct in standing near the volunteer table and ranting.

However, defendant did not explicitly threaten Officer Hodges, make any actions strongly

implying he would harm Officer Hodges, or make a “comment or act coupled with an aggressive

move toward” him. Id. ¶ 23 (quotation omitted). Unlike in Cole, where a jury could clearly find

that the defendant’s actions in grabbing the officer’s flashlight and attempting to take it strongly

implied an intent to harm the officer, defendant’s actions here were simply too ambiguous to

convey an intent to harm Officer Hodges.




                                                10
                                          II. Assault Charge

        ¶ 20.   We reject defendant’s argument that because the trial court found that the officers

unlawfully prolonged their encounter with him by ordering him not to walk by the bar, it should

have suppressed all subsequent evidence, including the evidence that he kicked a police officer

later that evening, for which he has been charged with simple assault on a law-enforcement officer.

We conclude that defendant’s action in kicking the officer is causally distinct from the officers’

actions in ordering him around the bar, and thus suppression is not warranted.

        ¶ 21.   We review a trial court’s factual findings on a motion to suppress for clear error,

and we examine the legal questions that the motion raises without deference to the trial court. State

v. Alexander, 2016 VT 19, ¶ 13, 201 Vt. 329, 139 A.3d 574. Defendant does not challenge the

trial court’s factual determinations, which included that after Officer Hodges reached out his hand

and pushed defendant away to prevent defendant from colliding with him, the officers ordered

defendant to take a route to his bus stop that did not take him past the bar. We will accordingly

review only the trial court’s legal conclusion that suppression was not warranted. State v. Cook,

2018 VT 128, ¶ 4, __ Vt. __, 203 A.3d 509.

        ¶ 22.   Evidence obtained as a result of an illegal search or seizure cannot be admitted at

trial if the State obtained that evidence “by exploitation of that illegality,” but it may be admitted

if the State came to the evidence “by means sufficiently distinguishable to be purged of the primary

taint” of illegality. Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quotation omitted).

Thus, evidence need not be suppressed as “ ‘fruit of the poisonous tree’ simply because it would

not have come to light but for the illegal actions of the police.” Id.; see also State v. Alexander,

157 Vt. 60, 63, 595 A.2d 282, 284 (1991) (noting fact that police caused challenged “stop in a ‘but

for’ sense is not sufficient to require suppression of the fruits of the stop”).

        ¶ 23.   Even assuming, as the trial court found, that the officers unlawfully prolonged their

encounter with defendant by ordering him around the bar and that, as defendant argues, his action

                                                  11
of kicking an officer later that night would not have happened but for the prolonged encounter, we

conclude that defendant’s assault on the officer is so causally distinct that the evidence of it could

not be characterized as fruit of the poisonous tree. A “defendant’s commission of a criminal act

in the course of an illegal arrest or search may be sufficient to dissipate the taint of illegality,” in

which case the evidence of the new criminal act may be admissible, even though it would not have

happened but for the illegal search or seizure. Alexander, 157 Vt. at 63, 595 A.2d at 285. Indeed,

“[s]trong policy reasons support treating these actions as ‘distinct’ crimes subject to prosecution

despite their close causal nexus to illegal police conduct.” Id. at 63-64, 595 A.2d at 285 (quoting

United States v. Bailey, 691 F.2d 1009, 1017–18 (11th Cir. 1982) for proposition that “extending

the fruits doctrine to immunize a defendant from arrest for new crimes gives a defendant an

intolerable carte blanche to commit further criminal acts so long as they are sufficiently connected

to the chain of causation started by the police misconduct”). Defendant’s new criminal action in

kicking the officer was causally distinct from the officers’ actions—even assuming, as the trial

court found, that the officers unlawfully prolonged their encounter with defendant—and thus need

not be suppressed. See id. at 62, 595 A.2d at 284.


       Defendant’s conviction of disorderly conduct is vacated and his motion to dismiss the
disorderly-conduct charge is granted. Defendant’s conviction for resisting arrest is vacated and
the charge is dismissed. The denial of defendant’s motion to suppress as it relates to the acts
underlying the assault charge, and his conviction on that charge, are affirmed.


                                                 FOR THE COURT:



                                                 Associate Justice




                                                  12
