State v. Roberts

STATE_V_ROBERTS.91-472; 160 Vt. 385; 631 A.2d 835


 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, 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.

                                 No. 91-472


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont
                                              Unit No. 1, Bennington Circuit

 Richard A. Roberts                           May Term, 1992


 Theodore S. Mandeville, Jr., J.

 Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant
   Attorney General, Montpelier, and Theresa St. Helaire, Bennington
   County Deputy State's Attorney, Bennington, for plaintiff-appellant

 Bonnie Barnes, Middlebury, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.   In this interlocutory appeal, the State contests the
 trial court's suppression of defendant's inculpatory statement, and
 defendant appeals the trial court's failure to suppress the fruits of a
 search of his residence, which he claims violated his rights under both the
 Fourth Amendment to the United States Constitution and Chapter I, Article
 11 of the Vermont Constitution.  We reverse the suppression of the statement
 and affirm the trial court's conclusion that the search did not violate
 defendant's constitutional rights.
      The search was conducted at a house leased to a John Cercena.
 Defendant was not a named lessee, but resided in the house in exchange for
 services provided to Cercena.  After the rent was two months in arrears, the
 phone had been disconnected, and attempts to reach Cercena had failed, the
 agent for the lessor went to the house to investigate and found on the front
 door a notice that electrical service had been discontinued.  She and a co-
 worker entered the house and discovered approximately fifteen cats.  There
 were several large bags of cat food open on the floor, and the cats had been
 urinating and defecating in the house, creating a strong, offensive odor.  A
 sliding glass door had been left partially open to allow the cats free
 access to the house.  The agent returned to her office and again attempted
 to contact Cercena.  She left a message on his son's answering machine at
 the son's residence in New York.  After waiting several days and still not
 hearing from Cercena, she contacted local police because of her concern for
 the cats.  A police officer accompanied her to the property to see whether
 the cats' condition required the attention of the animal control officer.
      While attempting to locate the cats in the house, the officer observed
 marijuana plants drying in an upstairs bedroom.  He also discovered a
 marijuana cultivation system in the cellar.  The officer was in the house
 for a total of five or ten minutes during the initial search, and later
 obtained a search warrant based on his observations.  Pursuant to the
 warrant, police seized marijuana and other evidence.  Some of that evidence
 -- mail, a birth certificate, and bottles of prescription medicine -- linked
 defendant to the premises.
      While on routine patrol the following day, a different officer recog-
 nized defendant operating a motor vehicle.  The officer stopped the vehicle
 and arrested defendant for felony cultivation of marijuana.  On the way to
 the station, defendant volunteered that he "[d]idn't have as big a hand in
 the operation as it appeared," or words to that effect.  The officer told
 defendant to say nothing further until he was processed.  During processing
 at the station, the officer explained to defendant that he had been arrested
 for a felony, that the officer would seek bail because defendant was from
 out-of-state, that another suspect, presumably Cercena, would be arrested
 and offered an opportunity to give a statement, and that if defendant made a
 statement the judge would probably consider it when determining the amount
 of bail.  When asked whether he wished to make a statement, defendant
 replied that he needed time to think about it.  A short while later, he
 advised the officer that he did want to make a statement.  After being
 informed of his rights as required by Miranda v. Arizona, 384 U.S. 436
 (1966), defendant signed a waiver and gave an inculpatory statement, which,
 according to defendant, was intended to convey an appearance of cooperation
 to the judge who would set bail.
      On appeal, the State argues that the trial court erred as a matter of
 law when it concluded on these facts that defendant's confession was not,
 considering the totality of the circumstances, the product of his free will.
 Defendant maintains that the officer should have advised him of his Miranda
 rights prior to engaging him in an extended conversation concerning, among
 other things, bail.  On cross-appeal, defendant argues that the warrantless
 intrusion into the Cercena residence was not justified by either the consent
 of the lessor's agent or the officer's reliance on abandonment of the
 property, and that the fruits of the search must therefore be suppressed.
                                     I.
      In determining the voluntariness of a statement, a court must examine
 it "in light of the 'totality of the circumstances.'"  State v. Beckley, 157
 Vt. 446, 448, 600 A.2d 294, 296 (1991) (quoting State v. Stanislaw, 153 Vt.
 517, 532, 573 A.2d 286, 295 (1990)).  We will uphold a trial court's ruling
 on voluntariness unless it is unsupported by the evidence or clearly
 erroneous.  Id. at 450, 600 A.2d  at 296.  Here, the findings of the trial
 court are unchallenged, but those findings do not support the court's
 conclusion that the statement was not the product of defendant's free will.
      We first address the officer's statement to defendant that his
 statement might result in reduced bail.  It is well established law that "a
 confession is inadmissible as involuntary if 'obtained by any direct or
 implied promises, however slight.'"  Id. at 448, 600 A.2d  at 295 (quoting
 Bram v. United States, 168 U.S. 532, 542-43 (1897)).  While the influence of
 a promise will render a confession inadmissible, State v. Comes, 144 Vt.
 103, 108, 472 A.2d 1253, 1256 (1984), mere predictions regarding the value
 of cooperation are not sufficiently coercive to render a subsequent
 confession involuntary.  See, e.g., United States v. Hart, 619 F.2d 325, 326
 (4th Cir. 1980) (officer's statement that cooperation could have an effect
 on bond reduction did not render confession involuntary); United States v.
 Ferrara, 377 F.2d 16, 18 (2d Cir. 1967) (absent prolonged interrogation or
 threats, statement to defendant that if he cooperated he would likely get
 out on reduced bail did not make confession involuntary); State v. Adkinson,
 338 S.E.2d 185, 187 (W. Va. 1985) (statement to defendant that if he
 cooperated he would probably get a lighter sentence, absent a promise to
 that effect, did not render confession involuntary).
      One court characterized a prediction, as distinct from a promise, as
 being "about future events beyond the parties' control . . . ."  United
 States v. Fraction, 795 F.2d 12, 15 (3d Cir. 1986).  Thus, this Court held
 in Beckley that a law enforcement officer's offer to convey the fact of the
 defendant's cooperativeness to the state's attorney was insufficient to
 render his confession involuntary.  157 Vt. at 449, 600 A.2d  at 296.
 Promises, on the other hand, convey the expectation of a benefit that the
 officer has, in the defendant's eyes, the power either to grant or
 withhold.  Hawkins v. Lynaugh, 844 F.2d 1132, 1139 (5th Cir. 1988); cf.
 Fillinger v. State, 349 So. 2d 714, 715 (Fla. Dist. Ct. App. 1977)
 (confession suppressed because officer told defendant that he would take
 her cooperation into account in seeking to establish amount of bond).
      The statement here under scrutiny -- that the judge responsible for
 setting bail "would probably consider" defendant's statement -- makes a
 prediction rather than a promise.  The officer did not personally promise to
 provide any benefit to defendant, other than to convey the fact of defend-
 ant's cooperation to the judge and indicate that the judge might consider,
 when setting bail, that defendant had given a statement.  Furthermore,
 nothing in the findings suggests that defendant perceived the officer as
 having the authority to directly provide him with any benefit.  Because the
 officer made no promise, his statement regarding bail did not render the
 confession here involuntary.
      Nor do the other statements by the officer justify suppression.
 Providing factual information regarding defendant's situation does not
 render the confession involuntary.  United States v. Barfield, 507 F.2d 53,
 56 (5th Cir. 1975), cert. denied, 421 U.S. 950 (1975).  It is also per-
 missible to advise a defendant of the nature of the charges against him.
 State v. Tapia, 767 P.2d 5, 9 (Ariz. 1988).  Here, the officer told
 defendant that he would be seeking bail based on defendant's out-of-state
 residency and that another suspect would be arrested and given an oppor-
 tunity to give a statement.  These statements provided defendant with
 factual information and did not contribute any coercive force to the
 circumstances which confronted him when he decided to give a statement.  We
 conclude that the statements made by the officer prior to defendant's
 decision to give a statement did not render his confession involuntary.
      The parties argue on appeal whether defendant was subjected to
 custodial interrogation prior to being given Miranda warnings.  The trial
 court concluded that the statement was involuntary and therefore did not
 reach the Miranda issues.  We decline to address the parties' question
 because it has not been ruled upon by the trial court and is outside the
 scope of interlocutory review.  Cf. V.R.A.P. 5(b)(allows appeal only from
 order or ruling).
                                     II.
      Defendant argues that the warrantless entry by police into the Cercena
 residence violated his Fourth Amendment and Article 11 rights and that the
 fruits of the resulting search should be suppressed.
                                     A.
      The Fourth Amendment to the United States Constitution provides that
 "[t]he right of the people to be secure in their persons, houses, papers,
 and effects, against unreasonable searches and seizures, shall not be
 violated . . . ."  As a general rule, the amendment prohibits warrantless
 entry into a person's home, which is a clearly defined zone of privacy
 protected by the express terms of the amendment.  Payton v. New York, 445 U.S. 573, 585 (1980).  The prohibition does not apply, however, where an
 officer has received consent from either the owner, Schneckloth v.
 Bustamonte, 412 U.S. 218, 222 (1973), or a third party who has common
 authority over the premises.  United States v. Matlock, 415 U.S. 164, 171
 (1974).  Although a landlord generally lacks the common authority required
 to grant permission to search the premises of his tenant, Chapman v. United
 States, 365 U.S. 610, 616-17 (1961), once a tenant has abandoned the
 property, the tenant loses the protections provided by the Fourth Amendment.
 Abel v. United States, 362 U.S. 217, 241 (1960).  Recently, the United
 States Supreme Court emphasized the reasonableness requirement of the
 amendment, holding that police conducting a search under an exception to the
 warrant requirement must be reasonable, though not always correct, in making
 the factual determinations necessary to establish the exception.  Illinois
 v. Rodriguez, 497 U.S. 177, 186 (1990).
      In Rodriguez, a former girlfriend of the defendant informed police that
 she lived in his apartment and had belongings there when, in fact, she did
 not have the common authority over the premises necessary for a valid third-
 party consent search.  The search was held to be reasonable because the
 facts available to the officers would satisfy a person of reasonable caution
 that the girlfriend had authority over the premises.
      Defendant argues that Rodriguez should not be extended to cases where
 there has been an apparent abandonment by a tenant and a subsequent consent
 by the landlord.  This argument was made and rejected in People v. Smith,
 561 N.E.2d 252, 260 (Ill. App. Ct. 1990).
         We see no principled distinction between a reasonable
         but erroneous belief by the police that a third party
         had "common authority" with the defendant over the
         premises in question, and a reasonable but erroneous
         belief by the police that a defendant had abandoned the
         premises in question.  Thus, [the entry by the police],
         based upon the circumstances before them and their
         reasonable belief that defendant had abandoned that
         residence, would have been lawful even if the trial
         court were later to find that belief to have been
         erroneous.

 (Emphasis in original.)  We agree that, if the officer had a reasonable
 belief that the premises had been abandoned, his entry was lawful even if
 the premises had not been abandoned.  The officer here learned from the
 lessor's agent that the rent was delinquent, the phone had been
 disconnected, the electricity had been shut off, the agent believed that the
 tenant had "skipped out," the cats were running loose around the residence,
 and the tenant had not replied to messages left on his answering machine at
 a residence in another state.  These facts lead to a reasonable inference
 that the premises had been abandoned and justify the entry by the officer.(FN1)
      Defendant argues that the presence of personal belongings throughout
 the house made it unreasonable to assume that the premises had been
 abandoned.  The court found, however, that the furnishings were of "very
 poor quality and of no value."  After the initial entry, the officer was
 confronted with a house reeking of cat urine and in disarray.  The agent
 described the house as destroyed with its furniture completely torn apart by
 the cats.  These circumstances would confirm the belief that the premises
 had been abandoned.  See United States v. Wilson, 472 F.2d 901, 903 (9th
 Cir. 1973) (no reasonable expectation of privacy for tenant who is two
 rental periods in arrears and leaves door open and apartment in disarray).
 Once inside the house, the officer came upon evidence of marijuana
 production.  He then left the premises and took the additional measure of
 obtaining a warrant before conducting a more thorough search and seizing
 evidence.  We conclude that the officer's actions were reasonable and did
 not violate defendant's Fourth Amendment rights.
                                     B.
      Defendant contends that the warrantless entry violated Chapter I,
 Article 11 of the Vermont Constitution, which he correctly points out may
 offer protections beyond those provided by the Fourth Amendment.  See State
 v. Savva, __ Vt. __, __, 616 A.2d 774, 779 (1991).  Article 11 provides
 "[t]hat the people have a right to hold themselves, their houses, papers,
 and possessions, free from search or seizure; . . . ."  The word
 "unreasonable," not appearing in the text, is "as implicit in Article Eleven
 as it is express in the Fourth Amendment."  State v. Record, 150 Vt. 84, 85,
 548 A.2d 422, 423 (1988).  Although a person's home is a place where one can
 generally expect privacy, State v. Blow, 157 Vt. 513, 517, 602 A.2d 552, 555
 (1991), the determination of the need for a warrant involves an objective
 inquiry: "whether a reasonable person should know that the occupant has
 sought to exclude the public."  State v. Kirchoff, 156 Vt. 1, 10, 587 A.2d 988, 994 (1991).
      Here, the result is the same whether analyzed under the Fourth
 Amendment or Article 11.  Given the condition of the premises and the
 numerous unanswered phone calls concerning the overdue rent, it was
 reasonable for the officer to conclude that the lessee of the property no
 longer sought to exclude the public.  Given the circumstances, the police
 did not violate defendant's federal or state constitutional rights when
 entering the house without a warrant, and the trial court did not err in
 refusing to suppress fruits of the subsequent search.
      The trial court's ruling suppressing defendant's confession is
 reversed; its ruling denying suppression of evidence seized during the
 search of defendant's residence is affirmed.  The cause is remanded.

                                         FOR THE COURT:


                                         Chief Justice


FN1.    Under 9 V.S.A. { 4462(a) a tenant has abandoned a dwelling unit if:
     (1)  there are circumstances which would lead a reasonable person to
 believe that the dwelling unit is no longer occupied as a full-time
 residence;
     (2)  rent is not current; and
     (3)  the landlord has made reasonable efforts to ascertain the tenant's
 intentions.