State v. Mountford

State v. Mountford (98-540); 171 Vt. 487; 769 A.2d 639 

[Filed 29-Dec-2000]


       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. 1998-540



State of Vermont	                         Supreme Court

                                                 On Appeal from
     v.	                                         District Court of Vermont,
                                                 Unit No. 3, Caledonia Circuit

Joseph W. Mountford	                         May Term, 1999


Mary Miles Teachout and Alan W. Cook, JJ.

Dale O. Gray, Caledonia County State's Attorney, and Alan M. Singer, Deputy 
  State's Attorney, St. Johnsbury, for Plaintiff-Appellee.

David C. Sleigh of Sleigh & Williams, St. Johnsbury, for defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       DOOLEY, J.   Defendant Joseph Mountford appeals from a judgment
  entered in the  Caledonia District Court on his conditional plea of guilty
  to a charge of possession of alcohol by a  minor in violation of 7 V.S.A. §
  657.  Summoned by an early morning complaint of a loud party at 
  defendant's home, police arrived to find the premises in disarray and
  defendant visible through a  window, apparently watching television.  When
  defendant ignored their entreaties, the police entered  without a warrant. 
  Defendant now challenges the district court's refusal to suppress the
  evidence  thereby acquired.  We conclude that the police were justified in
  entering the premises on an  emergency basis, but cannot determine from the
  record the subjective motive for their entry or  whether they exceeded the
  scope of constitutionally permissible activity.  Accordingly, we remand 
  the matter for further evidence and fact finding.

       After conducting an evidentiary hearing, the district court made the
  following findings.  Early  in the morning of March 15, 1998, the state
  police received a call from a resident of Lyndonville  complaining of a
  loud party next door at a residence to which state police had been summoned
  twice 

 

  before.  The two officers who responded found no party in progress when
  they arrived, but they did  notice beer cans and bottles strewn upon the
  lawn and front porch.  They proceeded to the front  porch and found the
  front door of the home open, the storm door closed and the glass in the
  upper  portion of the storm door  broken.  Through the door they observed
  that beer bottles and other debris  were strewn about the kitchen and that
  a telephone appeared to have been torn from the wall.  They  knocked on the
  door and announced themselves, receiving no response.  The officers then
  looked  through a window with a view into the living room and observed
  defendant seated on a couch and  staring at a television.  The officers
  sought to attract defendant's attention, first by shouting and  knocking
  and then by shining their flashlights through the window into defendant's
  eyes.  Defendant  was unresponsive.  The officers resumed knocking on the
  front door.

       At this point, defendant stood and walked toward another room.  He
  walked directly into a  wall, stumbled backward and then stumbled into the
  other room, disappearing from the officers'  sight.  The officers resumed
  knocking and announcing their presence.  Again receiving no response,  and
  believing that defendant was extremely intoxicated and/or in need of
  medical attention, the  officers entered the home and found defendant
  seated on the couch.  They questioned defendant and  learned that he was
  nineteen years of age, that he had been drinking, and that others had been
  present  but had left.  During the questioning, the troopers saw several
  more beer bottles and "illicit drug  paraphernalia" scattered about the
  residence.  One hour after they first arrived, they administered a  breath
  test to defendant and found that he had a BAC of .211.  They released him
  into the custody of  a roommate who arrived, after first giving him a
  citation to appear to answer a charge of possession  of alcohol by a minor. 

       Defendant moved to suppress all evidence obtained by the officers as a
  result of their  warrantless entry into his home.  The district court
  conducted an evidentiary hearing and denied  defendant's motion based on
  the so-called "community caretaking" exception to the constitutional 
  requirement of a search warrant.  See Cady v. Dombrowski, 413 U.S. 433, 441
  (1973) (noting that  such functions are "totally divorced from the
  detection, investigation, or acquisition of evidence  relating to the
  violation of a criminal statute"); State v. Marcello, 157 Vt. 657, 658, 599 A.2d 357, 

 

  358 (1991) (mem.) (applying Cady and noting "essential role" of police in
  assisting persons in  distress).  The court found that "police who have
  probable cause, based on specific articulable facts,  to believe that
  immediate entry is necessary to assist a person who may be in serious need
  of medical  aid, may enter without a warrant."  The court found that this
  test was met in this case.  Defendant  entered a conditional plea of guilty
  pursuant to V.R.Cr.P. 11(a)(2), reserving the right to appeal the  denial
  of the motion to suppress, and this appeal followed.

       Challenging the officers' warrantless entry into his home, defendant
  invokes both the Fourth  Amendment to the United States Constitution and
  its analog, Chapter I, Article 11 of the Vermont  Constitution.  Defendant
  relies primarily on the warrant requirement, which we have described as the 
  "first and foremost line of protection" afforded by these constitutional
  provisions.  State v. Morris,  165 Vt. 111, 115, 680 A.2d 90, 93 (1996). 
  "Requiring advance judicial approval before subjecting  persons to police
  searches represents a balance in which an individual's privacy interest
  outweighs  the burdens on law enforcement in obtaining a warrant."  Id. 
  Thus, the police are prohibited from  deciding on their own, without the
  approval of a neutral judicial officer, to invade a person's privacy 
  unless "exceptional circumstances" justify a departure from the warrant
  requirement.  Id.

       The State argues, however, that the warrantless intrusion of the
  police into defendant's  apartment is justified by their reasonable concern
  that defendant was in need of emergency  assistance.  It argues further
  that once the officers entered the apartment, they could use what  evidence
  was in plain view and interrogate defendant in the course of coming to his
  aid.  The district  court generally accepted this argument.

       As an adjunct to, or part of, the community caretaking exception to
  the warrant requirement, courts  have recognized an exception for entry to
  render emergency assistance. (FN1)  The United States  



  Supreme Court recognized such an exception in Mincey v. Arizona, 437 U.S. 385, 392-93 (1978),  and this Court did so in State v. Connolly, 133 Vt.
  565, 571, 350 A.2d 364, 368 (1975), although  neither case sets out the
  contours of the exception.  The leading case laying out the requirements of 
  the exception is People v. Mitchell, 347 N.E.2d 607 (N.Y. 1976), which
  held:

    [W]e think it necessary to articulate some guidelines for the 
    application of the 'emergency' doctrine.  The basic elements of
    the  exception may be summarized in the following manner:
         (1) The police must have reasonable grounds to believe that 
    there is an emergency at hand and an immediate need for their 
    assistance for the protection of life or property.
         (2) The search must not be primarily motivated by intent to 
    arrest and seize evidence.
         (3) There must be some reasonable basis, approximating 
    probable cause, to associate the emergency with the area or place
    to  be searched.

  Id. at 609.  Most courts that have considered this issue have accepted the
  Mitchell three-prong test, or  some variation of it.  See 3 W. LaFave,
  Search and Seizure: A Treatise on the Fourth Amendment §  6.6(a), at 392-93
  (3d ed. 1996).  See generally J. Decker, Emergency Circumstances, Police 
  Responses, and Fourth Amendment Restrictions, 89 J. of Crim. L. &
  Criminology 433, 440-41  (1999) (explaining three-pronged test similar to
  that in Mitchell).  We accept the Mitchell standard,  subject to refinement
  in future decisions and as explained below.

       In accepting the Mitchell test, we acknowledge that it requires us to
  delve into the subjective  motivation of police officers, an inquiry courts
  usually find inappropriate in Fourth Amendment  cases.  Whren v. United
  States, 517 U.S. 806, 813 (1996) ("we have been unwilling to entertain 
  Fourth Amendment challenges based on the actual motivations of individual
  officers").  Indeed, the  United States Supreme Court has "never held,
  outside the context of inventory search or 

 

  administrative inspection . . . that an officer's motive invalidates
  objectively justifiable behavior  under the Fourth Amendment."  Id. at 812;
  cf. State v. Hollis, 161 Vt. 87, 92-95, 633 A.2d 1362,  1365-66 (1993)
  (noting wide variety of circumstances in which courts have disregarded
  subjective  motivations of officers, and explaining circumstances in which
  legal justification for arrest may  support subsequent search, even if that
  justification does not comport with officer's actual motive for  arrest);
  State v. Towne, 158 Vt. 607, 629-30, 615 A.2d 484, 496-97 (1992) (noting
  that majority of  federal courts, in considering validity of arrest, have
  employed two-part test that limits Fourth  Amendment analysis to
  examination of objective legality of arrest).

       But in cases "addressing the validity of a search conducted in the
  absence of probable cause,"  such as administrative or inventory searches,
  the Supreme Court has indicated that examining the  subjective motivations
  of officers is necessary to assure that the civil or quasi-criminal
  searches do  not serve as a pretext for criminal investigations.  Whren,
  517 U.S. at 811-12; see United States v.  Cervantes, 219 F.3d 882, 889-90
  (9th Cir. 2000) (although Whren did not address whether  motivation of
  officer is relevant to reasonableness of searches under emergency-aid
  doctrine, it  suggests, by distinguishing between cases that require
  probable cause and those that do not, that  motivation of officer is
  relevant whenever no probable cause exists, as is always true in emergency-
  aid cases); 1 LaFave, supra § 1.4, at 21-22 (Supp. 2000) (given way in
  which Whren distinguished  inventory and administrative searches,
  pretext-type claims will still be viable in cases involving  searches made
  without probable cause).

       The distinguishing feature of community caretaking and emergency
  assistance searches is  that they are generated from a desire to aid
  victims rather than investigate criminals.  Thus, as is the  case with
  administrative and inventory searches, police are not required to
  demonstrate probable  cause to believe that a crime has taken place.  As a
  result, most jurisdictions have adopted the three-part Mitchell test
  requiring courts to find that the primary subjective motivation behind such
  searches  was to provide emergency aid.  See State v. Jones, 947 P.2d 1030,
  1037 (Kan. Ct. App. 1997) (citing  jurisdictions that have adopted Mitchell
  test); Salt Lake City v. Davidson, 994 P.2d 1283, 1287 (Utah  Ct. App.
  2000) (same); but see State v. Carlson, 548 N.W.2d 138, 141-42 (Iowa 1996) 

 

  (abandoning subjective-motivation prong in emergency assistance cases);
  People v. Davis, 497 N.W.2d 910, 921 n.12 (Mich. 1993) (declining to
  decide whether to adopt subjective element of  emergency assistance
  doctrine). In doing so, the courts seek to assure that the emergency
  assistance  doctrine is not used as a subterfuge to allow officers to
  search for evidence of crime under  circumstances in which no probable
  cause existed.  See Gallmeyer v. State, 640 P.2d 837, 842  (Alaska Ct. App.
  1982); People v. Ray, 981 P.2d 928, 937-38 (Cal. 1999).  For the same
  reasons, we  agree that the subjective-motivation prong should be part of
  the test.

       Having adopted the Mitchell test, we now turn to its application to
  the facts of this case.  The  parties' positions centered almost
  exclusively on the first element of the Mitchell test, with defendant 
  arguing that there was no real emergency and the State arguing that there
  was.  Courts have  developed various formulations of this element,
  emphasizing particular aspects of an objective test.   See People v. Amato,
  562 P.2d 422, 424 (Colo. 1977) (use of emergency doctrine "must involve an 
  immediate crisis and the probability that assistance will be helpful");
  Commonwealth v.  DiGeronimo, 652 N.E.2d 148, 154 (Mass. Ct. App. 1995)
  ("authorizes warrantless entry when a  police officer . . . reasonably
  believes that a person within the dwelling is in need of immediate 
  assistance because of an imminent threat of death or serious injury"); City
  of Troy v. Ohlinger, 475 N.W.2d 54, 57 (Mich. 1991) ("Where the police
  have probable cause, based on specific, articulable  facts, to believe that
  immediate entry is necessary to assist a person who may be in serious need
  of  medical aid, they may enter without a warrant."); State v. Follett, 840 P.2d 1298,1302 (Or. Ct. App.  1992) (police must "have reasonable grounds
  to believe that there is an emergency and an immediate  need for their
  assistance for the protection of life" and "emergency must be a true
  emergency"); La  Fournier v. State, 280 N.W.2d 746, 749 (Wis. 1979)
  (justification for emergency exception "is the  compelling need for
  immediate action by police officers to render emergency aid and assistance
  to a  person whom they reasonably believe to be in distress and in need of
  that assistance").  

       For purposes of this case, we do not need to refine the first element
  beyond its description in  Mitchell.  We do acknowledge, however, two
  additional conflicting considerations.  First, we must  be careful when we
  evaluate, by hindsight, actions taken by police based on an immediate    

 

  reaction  to the circumstances that faced them.  As Chief Justice (then
  Circuit Judge) Burger  explained: "[T]he business of policemen and firemen
  is to act, not to speculate or meditate on  whether the report is correct. 
  People could well die in emergencies if police tried to act with the  calm
  deliberation associated with the judicial process."  Wayne v. United
  States, 318 F.2d 205, 212  (D.C. Cir. 1963).  Thus, we should be
  deferential in evaluating a police decision that intervention  was
  necessary in response to an apparent emergency.  See generally Decker,
  supra, at 458.  On the  other hand, "a warrantless search is considered
  unreasonable unless justified, [and] the burden is on  the prosecution to
  show that the search falls into one of the exceptions to the Fourth
  Amendment  search warrant requirement."  State v. Ibey, 134 Vt. 140, 144,
  352 A.2d 691, 693 (1976); accord  State v. Blades, 626 A.2d 273, 278 (Conn.
  1993) (state has "burden of demonstrating that a  warrantless entry falls
  within the emergency exception").  

       We conclude that, based on the information before them, the officers
  could reasonably  believe that defendant was in need of immediate,
  emergency medical attention.  As defendant argues,  we do not believe that
  either the knowledge that defendant was drunk, see DiGeronimo, 652 N.E.2d 
  at 155-56; Bray v. State, 597 S.W.2d 763, 766, 768 (Tex. Crim. App. 1980)
  (presence of man who  was "very intoxicated" as a result of injection of
  some type of narcotics not an emergency to warrant  entry), or the failure
  of defendant to open the door, see State v. Geisler, 610 A.2d 1225, 1236-37 
  (Conn. 1992), is sufficient to authorize emergency intervention.  In this
  case, however, there was  more than defendant's apparent drunkenness. 
  Defendant was alone, without anybody to assist him  should he need it.  His
  lack of responsiveness to the officers' knocking and yelling, and to the 
  flashlight beam directly in his eyes, indicated a very serious level of
  impairment.  Although  defendant could walk, he walked directly into a
  wall, which reinforced the officers' concern about his  impairment.  We
  conclude that the circumstances present here would lead a reasonable
  officer to be  concerned about alcohol poisoning or risk of serious
  accidental injury.  See Howes v. Hitchcock, 66 F. Supp. 2d 203, 216 (D.
  Mass. 1999) (unsupervised teenage drinking party created "dangers of 
  alcohol poisoning, accidents, and violence associated with such gatherings,
  as well as the risk to  public safety posed by the possibility of the
  partygoers getting into their cars"); Ohlinger, 

 

  475 N.W.2d  at 56-57 (entry into dwelling justified where flashlight shined
  through bedroom window  showed defendant, who had earlier left scene of
  auto accident holding his head, bleeding and not  moving); State v.
  District Court, 577 P.2d 849, 852-53 (Mont. 1978) (view through open door
  of  person slumped over kitchen table, not moving but with hair dryer on
  and in his hand, sufficient to  allow entry into dwelling); State v.
  Sanders, 506 P.2d 892, 894 (Wash. Ct. App. 1973) (sight through  window of
  defendant "standing in a crouched position, swaying back and forth,"
  combined with  defendant's inability to state telephone number to operator,
  was sufficient to allow warrantless entry).  Therefore, entering the home
  without a warrant could be lawful on these facts, as long as the other 
  elements of the Mitchell test were satisfied.  

       We cannot, however, readily determine, based on the record before us
  on appeal, that the  second and third elements of the Mitchell test were
  met.  The court made no explicit finding that the  officers' decision to
  enter the dwelling was motivated primarily by the desire to assist
  defendant.  See  Mitchell, 347 N.E.2d  at 609.  Instead, the court returned
  to the first element, the objective standard,  to conclude that the
  officers "had good reason to enter the premises for the purpose of
  rendering aid  or assistance."  We can understand why the court made no
  finding on the subjective second element.  The only evidence before the
  court was the affidavit of one of the officers and the testimony of both 
  of them at the suppression hearing.  Neither officer was asked why he
  entered the dwelling, and as  discussed below, there is little evidence of
  what the officers did after they entered.  The evidence  indicates that
  they entered the dwelling about five minutes after arriving, and
  administered an  alcosensor test to defendant an hour after arriving. 
  There is no indication what they did in the  intervening fifty-five minutes
  except to interrogate defendant.  See 3 LaFave, supra § 6.6(a), at 402 
  ("Any conduct within by the officer which is in any way inconsistent with
  the purported reason for  the entry is a just cause for healthy
  skepticism.").  

       Similarly, we have inadequate evidence and findings on the third
  element of the standard,  that there must be a reasonable basis to
  associate the emergency with the place to be searched.  This  element of
  the Mitchell test implements the constitutional requirement that "the scope
  of a  warrantless search must be commensurate with the rationale that
  excepts the search from the warrant 

 

  requirement."  Cupp v. Murphy, 412 U.S. 291, 295 (1973).  

       In this case, the officers found beer bottles and evidence of
  marijuana use in the living room  where defendant was found and in other
  parts of the house.  Assuming a lawful entry, the physical  evidence found
  in the living room was in plain view and could properly be seized.  See
  People v.  Amato, 562 P.2d  at 423; State v. Blades, 626 A.2d  at 278
  (evidence in plain view during course of  search pursuant to "legitimate
  emergency activities" can be seized).  But we have no evidence to  judge
  whether the scope of the search was lawfully extended to the remainder of
  the house.  On  remand, the answer to this question will again depend on
  whether the officers were required to enter  the remainder of the house to
  respond to the emergency.  Or, put another way, whether the scope of  the
  officers' activities exceeded their justification for being there.  

       This case, however, involves more than the physical evidence described
  above.  Defendant  also moved to suppress the fruits of his interrogation
  and the result of the alcosensor test  administered while the officers were
  in the house.  Again, this is an issue of scope.  The fruits of the 
  interrogation and alcosensor test are analogous to physical evidence
  obtained from another room in  the house.  Although different from physical
  evidence, the standard is the same-if the evidence is not  sufficiently
  connected to the rendering of emergency assistance, it must be suppressed. 
  See State v.  Geisler, 610 A.2d  at 1231 n.13, 1237; New York v. Harris, 495 U.S. 14, 20 (1990).  This holding is  consistent with those of other
  courts.  See United States v. Brand, 556 F.2d 1312, 1317 n.9 (5th Cir. 
  1977) (police "must confine their intrusion to the scope of the original
  invasion unless a warrant or  one of the exceptions to the warrant
  requirement justifies a more thorough or wide ranging search");  Ohlinger,
  475 N.W.2d  at 57 ("The officer may not do more than is reasonably necessary
  to determine  whether a person is in need of assistance, and to provide
  that assistance."); Lubenow v. North Dakota  State Highway Comm'r, 438 N.W.2d 528, 533 (N.D. 1989) (Levine, J., concurring) (emergency  doctrine
  "must be strictly construed to keep the intrusion as limited as possible,
  so that law  enforcement officers are not permitted to invoke the doctrine
  capriciously to circumvent the warrant  requirement to seize evidence they
  anticipate discovering"); see also 3 LaFave, supra §

 

  6.6(a), at 401 ("Once it is determined that the suspicion which led to the
  entry is without substance,  the officers must depart rather than explore
  the premises further.").  We cannot determine from the  evidence and the
  court's findings whether suppression of fruits of the interrogation or
  results of the  alcosensor test are justified.

       Although it is clear that the court's findings do not cover all the
  elements of the Mitchell  standard, it is less clear what our remedy should
  be.  As we stated above, the prosecution had the  burden to show that an
  exception to the warrant requirement applied, but its evidence failed to
  make  a complete showing.  Defendant sought to suppress any evidence
  gathered inside defendant's  dwelling, but its legal memoranda relied only
  on the lack of an emergency to justify entry into the  dwelling.  

       As we indicated at the outset, this is a case of first impression, and
  the parties have failed to  anticipate what governing legal standards we
  would require.  In such circumstances, we conclude  that the appropriate
  remedy is a remand for factual development and findings consistent with
  this  opinion.  See State v. Malinowski, 148 Vt. 517, 523-24, 536 A.2d 921, 925 (1987).

       The decision of the district court denying defendant's motion to
  suppress evidence gathered  from the warrantless entry of defendant's
  dwelling is reversed and remanded for further proceedings  consistent with
  this opinion.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  We prefer to view the emergency assistance exception as separate
  from the community  caretaking exception, although both involve the police
  operating outside of a criminal law  enforcement role.  As the Supreme
  Court made clear when it announced the latter exception to the  warrant
  requirement in Cady v. Dombrowski, 413 U.S.  at 441, the premise of the
  doctrine is "the  extensive regulation of motor vehicles and traffic" and
  "the frequency with which a vehicle can  become disabled or involved in an
  accident on public highways."  Thus, "the extent of police-citizen  contact
  involving automobiles will be substantially greater than police-citizen
  contact in a home or  office" and, with regard to the former, police often
  find themselves engaged in "community  caretaking functions, totally
  divorced from the detection, investigation, or acquisition of evidence 
  related to the violation of a criminal statute."  Id.  The existence of a
  "community caretaking"  exception to the warrant requirement is, at its
  heart, a "recognition of the distinction between motor  vehicles and
  dwelling places."  Id. at 447.  Thus, Cady and its progeny, see Colorado v.
  Bertine, 479 U.S. 367 (1987), and South Dakota v. Opperman, 428 U.S. 364
  (1976), and our own decision in  Marcello, 157 Vt. at 657, 599 A.2d  at 358,
  largely involve requirements properly applicable to  automobile searches. 
  By keeping the emergency assistance and community caretaking exceptions 
  separate, we emphasize that we must view their elements separately.