State v. Trudeau
Annotate this Case
State v. Trudeau (95-494); 165 Vt 355; 683 A.2d 725
[Opinion Filed 26-Jul-1996]
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. 95-494
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Addison Circuit
Alex Trudeau April Term, 1996
Matthew I. Katz, J.
Sandra W. Everitt, Addison County Deputy State's Attorney, Middlebury,
for plaintiff-appellant
Robert Appel, Defender General, and Judith A. Ianelli, Appellate
Attorney, Montpelier, for defendant-appellee
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
ALLEN, C.J. The State of Vermont appeals a decision by the Addison
District Court granting defendant's motion to suppress marijuana seized
from his vehicle by a police officer during a DUI investigation. We
reverse.
On December 31, 1994, at approximately 1:30 a.m., a Middlebury police
officer observed a vehicle being operated in an erratic manner. Before the
officer could stop the vehicle, it turned into the parking lot of
Middlebury Beef and Supply, which was closed. The vehicle was occupied by
defendant and two passengers. While speaking with defendant, the officer
noticed signs that defendant was under the influence of alcohol, including
an odor of alcohol, watery eyes, and slurred speech. The officer used his
flashlight to look into the passenger compartment of the vehicle and
observed an open can of beer on the floor behind the driver's seat. After
conducting field sobriety tests, the officer determined that defendant had
been driving while under the influence.
Before placing defendant in the cruiser, the officer conducted a "pat
down" search and
discovered a small pipe with burnt residue in defendant's pocket. At that
time, the officer noticed an odor of marijuana on defendant's person. The
officer handcuffed defendant and placed him inside the police cruiser.
During the preceding events, the two passengers exited defendant's
vehicle. One passenger walked over and proceeded to get into another
vehicle, which he said that he owned. He shortly returned to the other
passenger, and both remained near defendant's vehicle. The officer noticed
that the passengers also appeared intoxicated. After placing defendant in
the cruiser, the officer approached the passengers to inquire if they
needed assistance in contacting rides home.
The officer then returned to defendant's vehicle to retrieve the beer
can as evidence. He opened the rear door of defendant's vehicle, and while
reaching for the can, noticed a partially exposed, clear-plastic baggie
under the back seat containing green "plantish material." When the officer
removed the bag, which was later found to contain 4.3 grams of marijuana,
he also recovered a second pipe. The officer conducted a further search of
the passenger compartment and found 0.4 grams of marijuana in a zippered
coin purse.(FN1)
Defendant was charged with possession of marijuana in violation of 18
V.S.A. § 4230(a)(1). Defendant filed a pretrial motion to suppress the
marijuana, arguing that it was seized pursuant to a warrantless search
without probable cause in violation of the Fourth Amendment to the United
States Constitution and Chapter I, Article 11 of the Vermont Constitution.
The trial court granted the motion to suppress, concluding that the beer
can had de minimis evidentiary value in a DUI prosecution and was therefore
a pretext for the seizure of other evidence not in plain view. The State
appeals.
The State argues that the court erred by granting the motion to
suppress because the seizure of the marijuana was valid under the "plain
view" exception to the warrant requirement.
During the officer's questioning of defendant, he observed an open beer can
on the floor of defendant's vehicle. While retrieving the beer can as
evidence, the officer's vantage point changed and the partially exposed
baggie of marijuana came into view. Therefore, in order to determine if
seizing the marijuana fits the plain-view exception to the warrant
requirement, we must first decide if the officer's retrieval of the beer
can was proper under the plain-view doctrine.
In Horton v. California, 496 U.S. 128 (1990), the United States
Supreme Court established the requirements for the plain view exception to
the warrant requirement. First, it is "an essential predicate to any valid
warrantless seizure of incriminating evidence that the officer did not
violate the Fourth Amendment in arriving at the place from which the
evidence could be plainly viewed." Id. at 136. Second, "not only must the
item be in plain view[,] its incriminating character must also be
immediately apparent." Id. Finally, "not only must the officer be
lawfully located in a place from which the object can be plainly seen, but
he or she must also have a lawful right of access to the object itself."
Id. at 136-37.(FN2) Here, the officer's seizure of the beer can was lawful
because the plain-view requirements from Horton are met.
As for the first prong of the plain-view test, the officer, while
standing next to defendant's vehicle, observed the beer can. Because
defendant's vehicle was located in a parking lot open to the public, the
officer was lawfully present when he observed the beer can. Moreover, it is
"beyond dispute that [the officer's] action in shining his flashlight to
illuminate the interior of [defendant's] car trenched upon no right secured
to the [defendant] by the Fourth Amendment." Texas v. Brown, 460 U.S. 730,
739-40 (1983). Therefore, the first prong of the plain-view test is met.
Second, we must determine if it was "immediately apparent" to the
officer that he had
incriminating evidence before him. Defendant argues that the beer can is
not "evidence of a crime" in a prosecution for DUI. Under Vermont law, a
person shall not operate a motor vehicle "when the person's [blood] alcohol
concentration is 0.08 or more." 23 V.S.A. § 1201. Defendant argues that a
beer can is not evidence of DUI because it cannot be used to prove
defendant's blood-alcohol concentration. In essence, defendant contends
that an officer on the scene should evaluate the legal relevancy of
evidence and assess its potential usefulness at trial. We disagree.
In Texas v. Brown, the Supreme Court conceded that the phrase
"immediately apparent" was "very likely an unhappy choice of words, since
it can be taken to imply that an unduly high degree of certainty" is
necessary prior to seizing an object. 460 U.S. at 741. According to the
Court, this prong of the plain-view doctrine is satisfied whenever "`there
is probable cause to associate the property [in plain view] with criminal
activity.'" Id. at 741-42 (quoting Payton v. New York, 445 U.S. 573, 587
(1980)). "[P]robable cause is a flexible, common-sense standard. It merely
requires that the facts available to the officer would `warrant a man of
reasonable caution in the belief' that certain items may be contraband or
stolen property or useful as evidence of a crime." Id. at 742 (citation
omitted) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).(FN3)
Here, the beer can satisfies these requirements.
When asked about the beer can, the officer testified that it was
standing upright on the floor [of the vehicle], [and] it was open . . . .
Just with a quick look with a flashlight of the interior of the
compartment I could look down, I could observe the can. I observed that it
was a beer can and that there was liquid in it.
An officer would have probable cause to associate with the crime of DUI a
partially full beer
can in a vehicle driven by a person who had failed a road-side sobriety
test. For example, evidence that a partially full beer can was found
within the driver's reach could be used to impeach a defendant who denies
drinking any alcohol. Here, the officer testified that defendant claimed
to have consumed only one beer earlier in the evening and that defendant
and the other passengers denied possession of the beer can found on the
floor of the vehicle. He also testified that, as a result of the partially
full beer can, he noted in his DUI processing report that "defendant may
have been drinking while driving."
In conducting its analysis, the trial court considered relevant the
officer's testimony that beer cans seized by the police routinely are not
saved. That the beer can was not retained as evidence is irrelevant
because an officer could seize the beer can to confirm that it was
partially full, cold, and contained an alcoholic beverage. Here, the
officer testified that on every DUI processing report he notes the number
of containers, the brands, the size of the containers, and the amount of
liquid present in the containers. The DUI processing report in this case
also contained such information. Because the State could rely on the
officer's testimony about the beer can, retention of the beer can for
presentation as physical evidence was not necessary. The second prong of
the plain-view doctrine is satisfied.(FN4)
The third prong of the plain-view doctrine -- that the officer had
legal access to the beer can -- is also met in this case. The Court in
Horton stated:
This [final requirement] is simply a corollary of the familiar
principle . . . that no amount of probable cause can justify a warrantless
search or seizure absent "exigent circumstances." Incontrovertible
testimony of the senses that an incriminating object is on premises
belonging to a criminal suspect may establish the fullest possible measure
of probable cause. But even where the object is
contraband, this Court has repeatedly stated and enforced the basic
rule that the police may not enter and make a warrantless seizure.
Horton, 496 U.S. at 137 n.7 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971)) (emphasis added). In reference to the above quotation,
one commentator discussed its applicability to the situation where an
officer observes contraband in a vehicle located in a public parking lot:
Does [the above quote] mean that while the viewing is proper (and thus
could be testified to), the police are nonetheless without authority to
enter the car to seize that which they have observed? Not likely. The
above language makes specific reference to premises, where the courts have
been most reluctant to permit warrantless entry and search for evidence.
But under the Chambers-Carney line of cases the warrantless search of
vehicles on probable cause has been upheld even absent true exigent
circumstances, and this is why there can generally be no objection to
warrantless entry of a vehicle to seize incriminating objects known to be
there.
3 W. LaFave, Search and Seizure § 7.5(a), at 576-77 (3d ed. 1996)
(citations and footnotes omitted); see also California v. Carney, 471 U.S. 386, 392-93 (1985) (motor vehicle exception to warrant requirement
justified by exigency of motor vehicle mobility and reduced expectation of
privacy in motor vehicles); Michigan v. Thomas, 458 U.S. 259, 261 (1982)
("justification to conduct . . . warrantless search [does not] depend upon
a reviewing court's assessment of the likelihood in each particular case
that the car would have been driven away, or that its contents would have
been tampered with, during the period required for the police to obtain a
warrant"); United States v. Alexander, 835 F.2d 1406, 1409-10 (11th Cir.
1988) (mobility of motor vehicle sufficient to satisfy exigency
requirement).
Under Chapter I, Article 11 of the Vermont Constitution, however, we
have said that mobility is not a per se exigent circumstance and that the
burden is on the State to show that evidence might be lost before a warrant
could be obtained. State v. Savva, 159 Vt. 75, 91, 616 A.2d 774, 783
(1991). Nevertheless, exigent circumstances, as construed in motor vehicle
cases, exist in this case. Defendant's vehicle would have remained in a
public parking lot, and the two other occupants of the vehicle, neither of
whom were arrested, would have had access
to the vehicle and the evidence contained therein. See, e.g., Wright v.
State, 391 S.E.2d 791, 792 (Ga. Ct. App. 1990) (when other persons with
access to vehicle and who might remove or destroy evidence are not in
custody, warrantless search with probable cause is reasonable); State v.
Elliot, 605 P.2d 930, 934 (Haw. 1980) (exigent circumstances where arrest
drew public attention to vehicle and defendant's friends remained on scene
with motivation to tamper with vehicle and contraband contained therein);
State v. Redfearn, 441 So. 2d 200, 202 (La. 1983) (exigent circumstances
where vehicle parked on public street and defendant's friend left at
scene). Therefore, the seizure of the beer can was lawful under the
plain-view exception to the warrant requirement of the Fourth Amendment and
under Chapter I, Article 11 of the Vermont Constitution.
Having found that the seizure of the beer can was lawful under the
plain-view doctrine, we must next determine if the officer's seizure of the
marijuana was also lawful under the plain-view doctrine. First, the
officer viewed the partially exposed baggie of marijuana when he opened the
door and reached into the vehicle to retrieve the beer can from the floor
of the back seat. Because, as discussed above, the officer could lawfully
reach inside the vehicle to seize the beer can, he "did not violate the
Fourth Amendment in arriving at the place from which" he viewed the baggie.
Horton, 496 U.S. at 136. Second, according to the officer's testimony, it
was "immediately apparent," id., that the green "plantish material" in the
baggie was marijuana. Therefore, the officer had probable cause to believe
that the baggie contained contraband. Id. Finally, because the officer
had legal access to the beer can and infringed on no privacy or possessory
interests when he seized the baggie, he had "a lawful right of access" to
the marijuana. Id. Therefore, all of the plain-view requirements are
satisfied with respect to the seizure of the marijuana, and the trial court
erred in granting defendant's motion to
suppress.(FN5)
Reversed and remanded.
FOR THE COURT:
_______________________________________
Chief Justice
------------------------------------------------------------------------------
Footnotes
FN1. The State stipulated to suppression of the 0.4 grams of
marijuana contained in the zippered coin purse because it was searched
without consent or warrant.
FN2. In Horton, the Court eliminated the requirement from Coolidge v.
New Hampshire, 403 U.S. 443, 469 (1971), that the police officer discover
the evidence "inadvertently." Horton, 496 U.S. at 138-41.
FN3. The court considered the question of whether seizing the beer
can was "really a pretext for seeing whatever else is in the car." Even if
an ulterior motive for seizing the beer can exists, it is irrelevant under
the objective probable-cause determination of Brown, 460 U.S. at 742. See
also Whren v. United States, 64 U.S.L.W. 4409, 4410-11 (U.S. June 11, 1996)
(reaffirming principle that ulterior motive does not invalidate police
conduct that is justifiable on the basis of probable cause to believe that
violation of law has occurred).
FN4. The officer also testified that the Town of Middlebury has an
open-container ordinance. The ordinance reads: "No person shall have in
their possession an open container containing any malt or vinous beverage .
. . in any vehicle located on Town property unless a permit has been
issued." Middlebury, VT., Alcoholic Beverage Restrictions § 301 (1993).
"A person who has in his or her possession an open container containing any
malt or vinous beverage . . . while on Town property without a permit . . .
shall be subject to a fine not in excess of $1,000." Id. § 701. The beer
can also constituted evidence of a violation of the open-container
ordinance.
FN5. The State argues that the marijuana was properly seized as a
search incident to arrest. New York v. Belton, 453 U.S. 454, 460 (1981).
Because we have determined that the marijuana was properly seized under the
plain-view exception, we do not reach that issue.
----------------------------------------------------------------------------
Dissenting
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. 95-494
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Addison Circuit
Alex Trudeau April Term, 1996
Matthew I. Katz, J.
Sandra W. Everitt, Addison County Deputy State's Attorney, Middlebury,
for plaintiff-appellant
Robert Appel, Defender General, and Judith A. Ianelli, Appellate
Attorney, Montpelier, for defendant-appellee
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J., dissenting. A closer look at the officer's testimony and
his written affidavit in support of the information tells a story different
from that recounted by the majority. According to the affidavit, after
arresting defendant for DUI and discovering the marijuana pipe in his
pocket, the officer
next checked the defendant's car . . . . Under the driver's seat [he]
found a silver metallic marijuana pipe with burnt residue. [He] also
located a ziplock baggie with a green material in the same location. On
the console near the gear shift [he] located a second smaller amount of a
plant like material rolled in a sandwich baggie. This baggie was located
inside a zippered coin pouch.
Nowhere in the affidavit did the officer indicate that he returned to the
car in order to retrieve the open beer can, or that the bag containing
marijuana was visible. His discovery of the
marijuana inside the zippered pouch suggests that he did not limit himself
to observing items in plain view. Indeed, the officer's testimony at oral
argument confirms this:
Q. Well, as part of your training . . . you're taught for example,
that you're not to go into closed containers in cars?
A. No, as a matter of fact I was taught that search incident to
arrest I'm allowed to do certain things as a protective sweep.
. . .
Q. And so in your mind, you thought you had permission or authority
then to go through whatever was in the car, whether it be in the glove
compartment or under the seat or wherever to see what was in it?
A. Only in a search for someplace that a weapon could easily be
retrieved from.
Based on the affidavit and the officer's understanding of the law, the
sequence of events is clear. After arresting defendant, handcuffing him,
and placing him in the police cruiser, the officer undertook a search of
defendant's vehicle, including a search of a closed container that the
State concedes was improper. See State v. Savva, 159 Vt. 75, 90-91, 616 A.2d 774, 782-83 (1991) (suppressing evidence found in warrantless search
of closed containers in vehicle; search was not supported by exigent
circumstances because officer could have seized container and applied to
magistrate for warrant). Despite the straightforward language of his
affidavit ("[u]nder the driver's seat I found [the pipe and bag of
marijuana]"), however, at the hearing the officer presented a new story:
while retrieving the open beer can, he noticed a ziplock sandwich bag
containing green plant material partially sticking out from under the seat.
When he pulled out the bag, the pipe fell out as well. At best, the
officer's description of evidence falling into his lap, as it were, is
questionable; when considered in light of the affidavit, which mentions
none of this, the story becomes incredible.
I recognize, of course, that this Court ordinarily gives deference to
the factual findings of the trial court. See State v. Zaccaro, 154 Vt. 83,
86, 574 A.2d 1256, 1258 (1990) (Court will not disturb trial court's
findings of fact unless they are unsupported by the evidence or clearly
erroneous). It is the responsibility of the finder of fact to evaluate the
credibility of a witness. See State v. Ives, 162 Vt. 131, 135, 648 A.2d 129, 131 (1994) (trial court determines credibility of witnesses and
persuasive effect of testimony). Here, however, the trial court made no
factual findings and suppressed the evidence on the basis that the open
beer can had minimal evidentiary value. The only explicit reference to the
officer's testimony is somewhat skeptical ("I think [the officer] even said
that he could see [the beer can] was partially filled [by] shining the
flashlight through the top. I don't know how much you can see through the
top of an open beer can but that was his testimony, we accept it."). At
any rate, given the trial court's rationale for its decision, the court had
no need to evaluate the officer's story.
Nonetheless, the majority's reversal of the trial court assumes that
the bag of marijuana and the pipe were in plain view. Indeed, the majority
merely recounts the officer's testimony as the facts of the case without
mentioning the contrary affidavit. Given the lack of findings and the
inherent implausibility of the officer's testimony, I cannot join this
decision. I would affirm the trial court's decision suppressing the
marijuana and the pipe.
_______________________________________
Associate Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
