State v. Stevens
Annotate this Case
State v. Stevens (2002-447); 176 Vt. 613; 848 A.2d 330
2004 VT 23
[Filed 10-Mar-2004]
[Motion for Reargument Denied 1-Apr-2004]
ENTRY ORDER
2004 VT 23
SUPREME COURT DOCKET NO. 2002-447
SEPTEMBER TERM, 2003
State of Vermont } APPEALED FROM:
}
} District Court of Vermont,
v. } Unit No. 1, Windsor Circuit
}
Peggy A. Stevens }
} DOCKET NO. 1481-11-01 Wrcr
Trial Judge: Paul F. Hudson
In the above-entitled cause, the Clerk will enter:
¶ 1. Defendant Peggy Stevens appeals an order from the Windsor
District Court denying her motion to suppress evidence of the condition of
animals seized pursuant to 13 V.S.A. § 354(b)(3). The court found that
defendant consented to the search of the animals and, in any event, the
search and seizure was justified by exigent circumstances. The court also
found that defendant failed to timely seek waiver of a requirement to post
security to avoid forfeiture of the animals. We conclude that the search
was consensual and that defendant waived her opportunity for the animals to
be held in custodial care, and affirm.
¶ 2. There is no dispute about the underlying facts. On August 7,
2001, a neighbor was passing by defendant's home. It was an extremely hot
day, and the neighbor was aware that defendant kept numerous animals in a
kennel-like structure on her property. Concerned that the animals were
overheating, he decided to check the kennel. When he inspected the kennel,
he found the windows nearly closed and the one fan he could see
inoperative, and he heard the animals whimpering. He promptly called the
Bethel State Police.
¶ 3. Sergeant Jocelyn Stohl and Trooper Peter Gravaltis responded
to the call. Sergeant Stohl introduced herself and explained she was there
to check the animals. Appellant stated she knew the police would be coming
by, and Stohl responded, "then it shouldn't be a problem." Defendant then
went into her house, retrieved the kennel key, and unlocked the door. At
no time did Stohl inform defendant she could refuse the inspection, nor did
Stohl obtain verbal or written consent to enter the kennel.
¶ 4. Inside the kennel, Stohl found nineteen animals. Most of the
kennel windows were closed, the fans inside the kennel provided limited air
circulation, a strong ammonia smell filled the air, and the outside
temperature exceeded ninety degrees. The animals were panting, and the
cats and small dogs could not reach their water. After checking the
kennel, Stohl asked defendant if there were additional animals inside
defendant's home. Defendant told Stohl there were, and Stohl asked if she
could see them. Inside defendant's home, Stohl found twenty-four animals
kept in padlocked cages in a small room. No windows were open, no fans
were inside, many of the animals were without water, the cages were dirty,
and a heavy ammonia odor was present.
¶ 5. After her inspection of defendant's kennel and home,
Stohl determined the animals required protective custody. Pursuant to 13
V.S.A. § 354(b)(3) (an officer who determines an animal's life is in
jeopardy may seize the animal without a warrant), Stohl removed most of
defendant's animals. Two days later, Stohl returned to defendant's home
with a search warrant and seized the remaining animals.
¶ 6 Defendant was charged with six counts of cruelty to
animals under 13 V.S.A. § 352(4). The State then moved under § 354(d) "for
an order requiring [defendant] to forfeit any and all rights in the
animal[s] prior to final disposition of the criminal charge." Pursuant to
State's motion, a hearing was held in the Windsor District Court. At the
hearing, defendant opposed the State's motion arguing that Stohl's initial
search of her kennel was in contravention of her Fourth Amendment rights.
Specifically, defendant argued that this was a warrantless search and none
of the exceptions to the warrant requirement applied because defendant did
not consent to the search and Stohl did not act pursuant to emergency
circumstances. Consequently, defendant contended that all evidence of the
animals should be suppressed as derivative of the initial illegal search
and her animals should be returned.
¶ 7. The district court denied defendant's motion to suppress,
finding both that defendant consented to the search and that Stohl acted
under emergency circumstances. Accordingly, the court granted the State's
motion and ordered that defendant forfeit the animals. Under 13 V.S.A. §
354(f), if a criminal defendant posts a $30.00 per animal security deposit
within forty-eight hours after the hearing, the seized animals will remain
in custodial care until the disposition of the criminal charges. This
requirement can be waived by the court for good cause shown, but if the
requirement is not waived and the security deposit is not paid, the court,
upon motion by the state, must order the animals immediately forfeited.
Id.
¶ 8. In this case, defendant filed a motion to waive the security
deposit requirement six days after the district court's decision was
issued. The district court denied defendant's motion as untimely, found
there was no good cause for defendant's failure to pay the security
deposit, and ordered the animals immediately forfeited. Following a jury
trial, defendant was acquitted on all six counts of cruelty to animals.
(FN1) This appeal followed.
¶ 9. In this appeal, defendant argues that the district court
erred because: (1) defendant did not consent to the initial search; (2)
Stohl did not act pursuant to emergency circumstances; and (3) defendant's
motion to waive the security deposit was timely. Because defendant's
counsel conceded at oral argument that the motion to waive the security
deposit was untimely, we address the third issue only summarily.
¶ 10. Recently, in State v. Lawrence, 2003 VT 68, 9, 14 Vt. L. Wk.
221, we explicitly adopted a two-step approach for reviewing appeals from
denials or grants of motions to suppress: "We will apply a clearly
erroneous standard to the trial court's underlying historical facts, while
reviewing the ultimate legal conclusion . . . de novo." We employ the
Lawrence standard in considering the issues before us.
¶ 11. The State grounds the validity of the search of the kennel
and house first on defendant's consent. "[T]he inquiry in a consent search
context is restricted to whether the consent was voluntary, not whether
there was a 'knowing' and 'intelligent' waiver of a constitutional right."
State v. Zaccaro, 154 Vt. 83, 88, 574 A.2d 1256, 1259 (1990) (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 241-42 (1973). Voluntariness is a
question of fact and the totality of the circumstances are considered when
determining whether consent was freely given. Schneckloth, 412 U.S. at
227; State v. Sheehan, 171 Vt. 642, 643, 768 A.2d 1275, 1277 (2000) (mem.).
¶ 12. Defendant makes three main arguments why there was no consent
in this case: the officer never requested consent to search so that
defendant was acting in response to an assertion of lawful authority;
defendant never affirmatively gave consent; and the officer failed to
inform her of her right to refuse consent. As to her first argument, we
recognize that granting access in "submission to a claim of lawful
authority" is not consent. State v. Sprague, 2003 VT 20, 23, 824 A.2d 539. Here, however, there was no assertion of lawful authority to inspect
the animals without defendant's consent. See id. at 26 (no unlawful
seizure occurs based on officer's request at the roadside to operator to
exit the vehicle if the officer does not convey a message that compliance
is required); 3 W. LaFave. Search and Seizure § 8.2(a) (1996) (collecting
cases). The officer's statement did not convey or imply that she intended
to search the kennels or house irrespective of defendant's consent.
¶ 13. As to her second argument, we conclude that the record is
clear that defendant gave consent by her action of going into the house,
obtaining the key to the kennel and opening the kennel. Consent can result
from conduct which would be understood by a reasonable person as conveying
consent. See Harris v. Carbonneau, 165 Vt. 433, 437, 685 A.2d 296, 299
(1996); see also United States v. Gordon, 173 F.3d 761, 766 (10th Cir.
1999) ("Non-verbal conduct, considered with other factors, can constitute
voluntary consent to search"); United States v. Turbyfill, 525 F.2d 57, 59
(8th Cir. 1975) (consent to enter dwelling implied from acts of opening
door and stepping back); State v. Copeland, No. 01-1864, 2003 WL 553996, at
*3 (Iowa Ct. App. 2003) ("Consent does not necessarily have to be given
verbally but may be found in gestures and non-verbal conduct as well"). In
this instance, defendant's conduct in enabling the officers to enter the
kennel clearly showed her consent to such entry.
¶ 14. On this point, defendant argues that we should require an
explicit written statement of consent. The obtaining of such a statement
may be good police practice, but it is not constitutionally required. Our
past decisions have relied on oral expressions of consent, without a
writing, see Sheehan, 171 Vt. at 643, 768 A.2d at 1277; Zaccaro, 154 Vt. at
90, 574 A.2d at 1261, and we see no reason to distinguish between conduct
that conveys consent and a verbal statement of consent. Defendant also
argues that we must consider defendant's conduct in the context of the
court's finding that she acted with reluctance and disgust. While these
findings might go to whether defendant acted voluntarily, as discussed
below, they do not undermine the conclusion that she gave consent.
¶ 15. Finally, defendant argues that considering all the factors,
her consent was not voluntary. She particularly relies upon three factors.
First she emphasizes that Sargent Stohl never informed her she could refuse
Stohl's request. Although, Stohl's failure to put defendant on notice of
her right to refuse the search is a factor for us to consider, it is merely
one factor and not a dispositive one in this case. See Sprague, 2003 VT 20
at 29 ("while a suspect's knowledge of the right to refuse is not
essential to a finding of consent, it is plainly a factor to be taken into
account"). As we discuss below, we think the factors showing that the
consent was voluntary outweigh those to the contrary.
¶ 16. Defendant also argues, relying on Sprague, that the initial
search's setting was inherently coercive. In Sprague, we considered
"whether a reasonable person in defendant's position would have felt free
to refuse a state trooper's request that he exit his vehicle." 2003 VT 20,
at 1. In concluding that a reasonable person would not have felt free to
refuse, we found it persuasive that this was a traffic stop, that the
officer's request defendant exit the vehicle came immediately after his
request to see defendant's license and registration, and that the officer
gave no indication that defendant could refuse the request. Id. at 28-29.
Here, defendant argues the setting was inherently coercive because her
property had been searched several times before and therefore, she felt she
could not refuse Stohl's request. This argument is unpersuasive. In
previous searches, the animals' care was found satisfactory, and there was
never any indication that defendant would suffer negative consequences if
she refused a future search. We cannot conclude here that an inherently
coercive environment prevented voluntary consent to a search.
¶ 17. Nevertheless, defendant contends that, as in Sprague, she did
not have enough time to consider Stohl's request, and therefore her consent
was not freely given. The facts are very different that those in Sprague.
Defendant's response to the officers indicated that she knew they were
coming and, therefore, had time to determine her actions. Moreover,
defendant left the officer's presence when she went to retrieve the kennel
keys, and, during that time, she had an opportunity to fully consider the
officer's request to search. We cannot conclude that defendant was forced
to act in haste.
¶ 18. In State v. Badger, 141 Vt. 430, 444, 450 A.2d 336, 344
(1982), we found that a sixteen-year-old boy's consent to seize clothing
and shoes as evidence was not voluntary because of his youth, his emotional
state, the misleading statements of the police, the failure to give him
Miranda warnings even though he was in custody, and his father's
unfamiliarity with the criminal justice system. We concluded, based on
these factors, that consent was obtained in an "inherently coercive
atmosphere." Id. In Sprague, we found that defendant's exit from his
vehicle at the officer's request was not consensual because an inherently
coercive atmosphere existed as a result of the officer's stop of the
vehicle, the "request" to exit followed a request, which could not be
refused, to show the operator's license and registration, and the officer
did not inform the operator that he was free to refuse the officer's
request. 2003 VT 20, at 28-29. None of the factors in Sprague or Badger
are present here, with the single exception that the officer here also did
not advise that defendant could refuse consent for the search. Defendant
acted with disgust and reluctantly, but neither mental state is
inconsistent with voluntary consent. Overall, the factors demonstrating
voluntariness outweighed those suggesting that the consent was involuntary.
¶ 19. Considering the totality of the circumstances, we conclude
the district court correctly found defendant freely consented to the
initial search of the kennel. Accordingly, the searches and seizures that
followed were valid. We need not reach whether the search was also
justified by exigent circumstances.
¶ 20. Defendant's final argument is that the district court erred
by denying her motion to waive payment of the required security deposits
following the forfeiture hearing. Section 354(f) of Title 13 requires a
defendant to post a security deposit of $30 per animal within forty-eight
hours of the forfeiture hearing to prevent the immediate forfeiture of
seized animals pending final disposition of criminal charges. Here, the
forfeiture hearing concluded on August 21, 2002, but the district court did
not issue its decision until one week later, on August 28. The court and
the parties assumed that, when the forfeiture decision is not made at the
conclusion of the hearing, the forty-eight-hour period begins to run from
the date of the decision rather than the conclusion of the hearing.
Nevertheless, the court determined that defendant's waiver motion was still
untimely because it was not filed within forty-eight hours of the court's
August 28 decision. The court also determined that defendant had failed to
demonstrate good cause for obtaining a waiver. We uphold the court's
ruling that defendant's motion was untimely filed. Assuming that the
operative date for the running of the forty-eight-hour period is the one
accepted by the district court and the parties in this case - the date of
the forfeiture decision - defendant's motion had to be filed by Friday,
August 30, 2002.
¶ 21. Defendant's argument that V.R.C.P. 6(e) gave her an
additional three days to file the motion is unavailing. Both V.R.C.P. 6
and V.R.Cr.P. 45(e) provide an additional three days to respond within a
period of time prescribed by a rule or statute when service is by mail, but
those rules were amended more than twenty years ago to clarify that the
additional time is not available when service by mail is made by a court
rather than a party. See V.R.C.P. 6(e) ("three days shall be added to the
prescribed period unless the notice or other paper is served by the
court"); V.R.Cr.P. 45(e) (same); see also Reporter's Notes - 1982
Amendment, V.R.Cr.P. 45 ("Subdivision (e) is amended to provide that
additional time is not available after service by mail if service is made
by the court."). Here, the district court served a copy of its August 28
decision on the same day in accordance with the rules, see V.R.Cr.P. 49(b);
V.R.C.P. 5(b), and defendant acknowledged obtaining the decision on August
29. Yet, defendant's motion to waive payment of the deposits was not filed
until Tuesday, September 3. Thus, defendant has failed to demonstrate that
the court erred by denying her motion as untimely filed. Nor do we find
any basis for overturning the district court's decision under V.R.Cr.P. 2,
which provides that the rules "shall be construed to secure simplicity in
procedure, fairness in administration, and elimination of unjustifiable
expense and delay."
Affirmed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned
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Footnotes
FN1. Although defendant was acquitted, she argues that the constitutionality
of the search remains a live issue because, if the searchwas invalid, she
would be entitled to the return of her animals from the current owners.
The State has not contested this argument or claimed that the appeal is moot.
Accordingly, we reach the merits of the constitutional issue without
addressing mootness or the validity of defendant's argument that she would
be entitled to return of the animals if she prevails.
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