State v. Sheehan

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State v. Sheehan (99-546); 171 Vt. 642; 768 A.2d 1275 

[Filed 29-Dec-2000]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-546

                             NOVEMBER TERM, 2000

State of Vermont	               }	APPEALED FROM:
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 1, Windham Circuit
George W. Sheehan	               }
                                       }	DOCKET NO. 390-3-99 Wmcr

                                                Trial Judge: Paul F. Hudson

             In the above-entitled cause, the Clerk will enter:

       Defendant George Sheehan appeals his conviction for driving while
  under the influence of  intoxicating liquor, 23 V.S.A. § 1201(a)(2).   He
  argues that the district court erred in refusing to  suppress all evidence
  derived from the warrantless nighttime entry into his home by police.  We 

       At 8:50 p.m. on February 26, 1999, two uniformed Wilmington police
  officers responded to a  dispatch of a motor vehicle accident without
  injuries on Route 100.  At the scene, they observed a  purple Pontiac Grand
  Am at rest on the side of the snow covered road.  No operator, passengers,
  or  keys were in the car.   Through a motor vehicle inquiry, the police
  discovered that the car was  registered to defendant's wife.  A witness
  observed the car skid off the road and the operator leave  the scene.  The
  witness gave police a description of the operator and shared his belief
  that the  operator was intoxicated.  Defendant's daughter drove by the
  scene and reported that her father  regularly drove the car, although her
  mother was the registered owner.  The daughter expressed  concern for her
  father's safety.

       At approximately 10:00 p.m., the police arrived at defendant's home
  and through a window  observed a man inside matching the description of
  that given by the witness.   The officers knocked  at defendant's door,
  identified themselves, requested defendant to identify himself and asked if
  they  could come inside to talk to him.   Defendant identified himself and
  allowed the officers inside his  home responding "sure, come on in."  Once
  inside, the officers asked defendant if he was okay, and  he responded that
  he was.  The officers observed defendant's eyes to be watery, and they
  smelled the  odor of intoxicating beverages on his breath.  Defendant was
  unsteady and swaying.   The officers  inquired about defendant's activities
  earlier in the evening.  Defendant became upset and asked what  the police
  were talking about.  One officer told defendant that they had removed his
  vehicle from a  field on Route 100.  Again, defendant asked what the police
  were talking about. One officer asked  defendant what type of car he drove. 
  Defendant started to say "Pontiac"  but stopped 


  himself.  The officer completed the word and defendant added "grape
  colored."  The officers asked  defendant where the car was located, and he
  responded that it was in the garage. The three walked  outside the house to
  the detached garage, but the vehicle was not there.   Defendant then led
  the  officers back into the house.  After this second entry, the officers
  advised defendant of their  suspicion that he had been driving while
  intoxicated.  They asked if he had been drinking and when  he had arrived
  home.  Defendant responded that he had his last drink at around 6:30 p.m.
  and that he  had been home since 6:30 p.m.  The officers asked if they
  could perform field sobriety tests on  defendant.  Defendant refused and
  was taken into custody and processed for DUI.  He consulted with  counsel
  before supplying a breath sample of .17.

       Defendant moved to suppress all evidence derived from the warrantless
  entry and arrest in his  home contending it violated Chapter I, Article
  Eleven of the Vermont Constitution because no  exigency existed and his
  consent was obtained by misrepresentation.  The court denied the motion 
  concluding that  there was no constitutional violation as defendant
  consented to the police officers'  entry and there was no evidence that the
  consent was not voluntary.  Defendant entered a conditional  plea of
  guilty, pursuant to V.R.Cr.P. 11 (a)(2), to DUI in violation of 23 V.S.A. §
  1201 (a)(2).  

       On appeal, defendant raises two issues: (1) does Article Eleven
  prohibit a warrantless  misdemeanor arrest in the home absent exigent
  circumstances or voluntary consent; and (2) is a  suspect's consent free
  and voluntary if he is not informed of the purpose for which the police
  seek to  enter his home at ten o'clock at night.  Resolution of both issues
  turns on whether defendant's consent  was voluntary.   "[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 to be determined by the
  totality of all the  surrounding circumstances.  Id.    The State bears the
  burden of proving that the consent was not the  product of duress or
  coercion.   Id. (citing Schneckloth, 412 U.S. at 248).  In determining the
  totality  of the circumstances, we have considered the scope of the
  invitation and whether the search  exceeded the scope.  See id. at 91, 574 A.2d  at 1261.

       Although conceding that his consent was not coerced or obtained by
  duress, defendant  contends the police deceived him because their request
  to enter the home to talk with him was a  pretext to gain entry to arrest
  him.  The court found that the police did not believe they had probable 
  cause to arrest defendant before they entered his residence.  Rather than
  seek entry to effect an arrest,  the police requested entry for the purpose
  of talking to defendant.  We uphold the court's finding   because it is
  supported by the evidence and is not clearly erroneous.  State v. Beckley,
  157 Vt. 446,  450, 600 A.2d 294, 296 (1991).   

       Under the totality of the circumstances here, the court was correct in
  concluding that  defendant's consent was voluntary.  The police did not
  exert any force or pressure to gain entry.   Appearing in uniform, the
  police identified themselves, then asked for defendant's consent to enter 
  the residence so that they could talk to him.  The scope of the
  conversation was not limited or  defined.  Defendant did not ask the police
  why they wanted to enter his home or for what purpose 


  they intended to talk.  On notice that two uniformed police officers wanted
  to engage him in an  unrestricted dialogue, defendant responded by inviting
  them into his home.   Once inside, the police  acted within the scope of
  their broad invitation and did precisely what they said they would, talk to 
  defendant.  Nothing about the police officers' behavior suggests that they
  engaged in trickery or  misrepresented their purpose in order to gain entry
  into defendant's home.  Defendant did not ask the  police to leave once
  alerted that they  were investigating an accident involving his vehicle. 
  On the  contrary, after walking outside with the officers, defendant again
  allowed them inside his home. The  court did not err in finding that
  defendant voluntarily consented to the police entry into his home.   See
  Zaccaro, 154 Vt. at 88, 574 A.2d  at 1259.

       Defendant argues that Zaccaro is inapplicable here because its holding
  is limited to the  situation where undercover officers conceal their true
  identities and  request and gain entry to engage  in illegal activity.   In
  Zaccaro, the defendant challenged the voluntariness of his consent because
  he  was unaware of the true identity of the undercover officer.  Because
  the undercover officer accepted  the general invitation to enter
  defendant's residence to engage in illegal activity, we concluded the 
  defendant "impliedly consented to a `search' of his home within the scope
  of his invitation."  Id. at  90, 574 A.2d  at 1261.  We did not hold that an
  invitation to engage in illegal activity was a  prerequisite to a voluntary
  consensual search.  Instead, such an invitation merely defined the extent 
  of the search and negated the defendant's claim that the officer's
  concealment of her true identity  made the consent involuntary.

       The cases relied on by defendant are inapposite.  Consent was not at
  issue in Welsh v.  Wisconsin, 466 U.S. 740 (1984).  The defendant's
  stepdaughter, not defendant himself, granted entry  to the residence. 
  Because the consent issue was never resolved below, the high court assumed
  there  was no consent and proceeded to its exigency analysis.   Id. at 743
  n.1.   Because there was no  consent and no exigency, the court held that
  the nighttime entry into the petitioner's home to arrest  him for a civil
  traffic offense was prohibited by the Fourth Amendment.

       The decision in McCall v. People, 623 P.2d 397 (Colo. 1981), is also
  unavailing.  In McCall,  the police, with the input of the district
  attorney's office, devised a plan to arrest defendant and his  two
  co-conspirators separately and without an arrest warrant in their
  respective homes.  The court  held that "[w]here, as here, entry into the
  home is gained by a preconceived deception as to purpose,  consent in the
  constitutional sense is lacking."  Id. at 403.  As discussed above, there
  was no  preconceived deception here.

       Defendant's reliance on State v. Bailey, 417 A.2d 915 (R.I. 1980), is
  also misplaced.  In Bailey,  the defendant admitted police for the limited
  purpose of using his telephone.  After making their call,  the police
  arrested defendant.  From this limited invitation, the court refused to
  "extrapolate . . . a  general consent that would legitimize any subsequent
  police conduct."  Id. at 919.  Here, the scope of  defendant's consent was
  sufficiently broad to encompass inquiry into his activities during the
  evening  and whether and how much he had been drinking.  The officers did
  not enter defendant's home to  conduct an arrest, but rather to talk with
  defendant.  We find defendant freely and voluntarily  allowed officers into
  his home.


       Once lawfully across defendant's threshold, the police observed signs
  of defendant's  intoxication warranting an arrest of defendant therein. 
  V.R.Cr.P. 3(a)(5).  That the arrest occurred  within defendant's home does
  not make it unlawful. 


                                       BY THE COURT:

                                       Jeffrey L. Amestoy, Chief Justice

                                       John A. Dooley, Associate Justice

                                       James L. Morse, Associate Justice

                                       Denise R. Johnson, Associate Justice

                                       Marilyn S. Skoglund, Associate Justice

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