State v. Sprague
Annotate this Case
State v. Sprague (2002-028); 175 Vt. 123; 824 A.2d 539
2003 VT 20
[Filed 21-Feb-2003]
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.
2003 VT 20
No. 2002-028
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Jonathan L. Sprague September Term, 2002
John P. Wesley, J. (Final Order)
Robert Grussing III, J. (Motion to Suppress)
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney
General, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Victoria Cherney, Appellate
Attorney, Montpelier, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse (FN1), Johnson and Skoglund, JJ.
¶ 1. SKOGLUND, J. The questions we address in this appeal are
whether a reasonable person in defendant's position would have felt free to
refuse a State trooper's request that he exit his vehicle, and whether a
police officer may automatically order a driver to exit a vehicle following
a routine traffic stop. We hold that the record evidence here did not
support a finding that defendant voluntarily exited his vehicle. We
further hold that a police officer must have a reasonable basis to believe
that the officer's safety, or the safety of others, is at risk or that a
crime has been committed before ordering a driver out of a stopped vehicle.
Finding no basis for the exit order in the circumstances of this case
involving a routine traffic stop for a speeding violation, we conclude that
the trial court erred in denying defendant's motion to suppress and
therefore that the judgment must be reversed.
¶ 2. The record evidence reveals the following. On October 3,
2000, at approximately 3:30 p.m, a State trooper operating a radar device
on Route 91 in the Town of Rockingham clocked a vehicle traveling at a rate
of seventy-nine miles per hour. Nothing in the record suggests that the
officer observed any indicia of drunk driving, or any other offense or
traffic violation, other than speeding. The trooper followed the car in
his cruiser, activated his blue lights, and parked behind the car after it
had stopped on the paved shoulder of the highway. A police videotape of
the events that followed, which was also transcribed, shows that the
uniformed officer approached the driver's side of the car and asked the
driver, "can I see your license and registration, please?" The driver,
later identified as defendant, handed these to the officer through the car
window. The officer asked defendant several additional questions
concerning the reason for the stop, and defendant indicated that he was
running late to pick up his son. The officer then said, "you mind having a
seat in my car while I check your license, please?" Defendant, in
response, exited the vehicle and started walking with the officer toward
the police cruiser.
¶ 3. As they approached the cruiser, the officer asked defendant
whether he had "any weapons, knives, sharp anything like that in your
pocket? Would you mind showing me what you have, quick, before you get in
my car?" Defendant thereupon emptied his pockets, revealing a small packet
which, in response to additional questioning, he acknowledged contained
marijuana. Under further questioning, defendant also acknowledged that he
possessed "a pipe and bag." The officer proceeded to pat down defendant,
found a prescription bottle which defendant indicated was for "panic
attacks," and entered the cruiser with defendant. Once inside, the officer
questioned defendant further about his marijuana use, work, and other
subjects. At one point, the officer reassured defendant, "you're not going
to end up in jail; you're going to drive away from here, okay?"
¶ 4. After several minutes, the officer completed writing up the
ticket, returned defendant's license, and announced, "Okay, this's done and
over with, Jon." The officer then indicated that he wanted to "just take a
quick peek in the car,"and addressed defendant as follows:
What I'm going to do is just - from this point forward, Jon,
it behooves you to be a hundred percent honest with me, okay? I'm
not going to pull any fast ones with you or anything like that,
I'm an up-front kind of guy. Okay?
What I want to do is take a peek at what you have in the
vehicle, okay? And I wouldn't mind going to your house and taking
a peek there, okay? Because based on what we've discovered right
now, is people who smoke dope carry dope with you and they have
dope at their house; okay?
Now, I can go the short route, or we can go the long route;
okay. It's entirely up to you. But what I want to do is I just
want to tell you everything now, okay; so you fully understand
everything.
You got a little bit more dope at the house?
¶ 5. Defendant, responded, "A tiny bit, not much." The officer
reassured defendant that he wasn't looking "to tear your place apart or
anything like that,"and had defendant sign a consent form for the search of
his vehicle and home, explaining that "[e]ssentially this is just for your
protection; okay?" After a search of the car, defendant drove home followed
by the officer and another trooper. A search of the home revealed several
marijuana plants.
¶ 6. Defendant was charged with possession of two ounces or more
of marijuana, in violation of 18 V.S.A. § 4230(a)(2). He moved to suppress
the evidence, arguing that the searches of his pockets, car and home were
non-consensual. In a supplemental memorandum, he argued for suppression on
the additional ground that any questioning beyond the traffic stop should
have been preceded by Miranda warnings. Following a hearing, the court
issued a written decision, denying the motion. The court ruled that
defendant had validly consented to the search of his pockets, car and home,
and that Miranda warnings were not required because defendant was never in
custody during the incident.
¶ 7. The public defender later substituted for defendant's retained
attorney, and filed a new motion to suppress, together with a cover letter
from successor counsel. The letter stated that the new motion had been
filed "to ensure that all issues have been raised and are preserved for
appeal,"and that the State and defendant had agreed to have the motion
decided based on the record of the prior hearing, including the testimony
and videotape previously admitted into evidence. In the event that the
court denied the motion, the letter stated that the parties had agreed to a
conditional plea, under terms previously reviewed by the court.
¶ 8. In addition to the arguments previously raised, the new motion
asserted that defendant had not freely exited his vehicle, that the
"request" that he exit constituted a further seizure requiring reasonable
suspicion of criminal activity under Chapter 1, Article 11 of the Vermont
Constitution, and that all evidence subsequently seized was tainted by the
initial illegality and should be suppressed. In its response, the State
noted that the court had previously decided all of the issues raised with
the exception of the question whether defendant had properly exited the
car, which it characterized as "the only issue now open for review by this
Court. . . . " As to this issue, the State asserted that defendant had
voluntarily consented to leave his vehicle, and that suppression was
therefore unwarranted.
¶ 9. The court later issued a written decision, denying the new
motion to suppress. The court observed that the claims relating to the
propriety of defendant's exit from the vehicle had been waived by his
failure to raise them in the initial suppression motion. Nevertheless, the
court went on to state that it had reviewed the new claims on the merits
and had concluded that the evidence and law did not support defendant's
assertion that his decision to exit the vehicle was involuntary, or his
argument that the officer's request to exit was improper. This appeal
followed.
I.
¶ 10. Defendant renews on appeal the claims raised below in the
successive motions to suppress. The State raises a procedural bar at the
threshold, however, arguing that the issues relating to defendant's exit
from the vehicle were not preserved for review because defendant failed to
raise them in the first suppression motion.
¶ 11. It is well settled that "absent plain error, issues neither
litigated nor decided below will not be addressed for the first time on
appeal." State v. Parker, 155 Vt. 650, 651, 583 A.2d 1275, 1276 (1990)
(mem.). The record here, however, shows that the State agreed that
defendant could raise the issues which it now claims are barred "to ensure
that all issues have been raised and are preserved for appeal,"
acknowledged in its opposition to the new motion that the issues remained
open to review, and addressed the legal and factual merits of the claims.
The trial court, moreover, indicated that it had reviewed the arguments,
and rejected them on the merits, albeit after indicating that they had been
waived. Both parties have now fully briefed the issues to this Court, as
well.
¶ 12. In these circumstances, we find that the basic purposes
underlying the preservation rule would not be served by declining to
address defendant's arguments. The parties had a full and fair opportunity
to litigate the issues, the court addressed them on the merits, and the
record is more than ample for purposes of affording meaningful appellate
review. See In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270-71 (2001)
("purpose of the preservation rule is to ensure that the original forum is
given an opportunity to rule on an issue prior to our review"); State v.
Wool, 162 Vt. 342, 346, 648 A.2d 655, 658 (1994) (preservation rule
facilitates development of adequate record for appeal). Coupled with the
fact that defendant's claims implicate fundamental constitutional rights,
these several considerations persuade us that appellate review is necessary
and proper. See State v. Kinney, 171 Vt. 239, 253, 762 A.2d 833, 844
(2000) (despite failure to preserve issue for appeal, we may review claim
for plain error where it strikes at heart of defendant's constitutional
rights).
II.
¶ 13. Although defendant's claims are explicitly grounded in state
constitutional and decisional law, any analysis must necessarily take
account of the United States Supreme Court's seminal decision in
Pennsylvania v. Mimms, 434 U.S. 106 (1977). There the high court
interpreted the Fourth Amendment to hold that when an automobile is
lawfully stopped for a traffic violation, a police officer may, as a matter
of course, order the driver to exit the vehicle. Id. at 111. In so
holding, the Court observed that the reasonableness of a search under the
Fourth Amendment turns on a balance between the public interest and the
individual's right to be free from arbitrary police interference. Id. at
109. On the public interest side, the Court thought it "too plain for
argument" that the state's asserted justification for routine exit orders -
officer safety - was "both legitimate and weighty." Id. at 110. As against
this interest, the Court characterized the intrusion on the driver's
personal liberty as "de minimis." Id. at 111. Thus, the Court ruled that
"once a motor vehicle has been lawfully detained for a traffic violation,
the police officers may order the driver to get out of the vehicle without
violating the Fourth Amendment's proscription of unreasonable searches and
seizures." Id. at 111 n.6. In Maryland v. Wilson, 519 U.S. 408, 415
(1997), the Court - based on similar reasoning - extended the rule to
approve routine exit orders to passengers.
¶ 14. Although many state courts that have addressed the issue have
adopted the Mimms rule, others, analyzing the issue on state constitutional
grounds, have explicitly rejected it. See Commonwealth v. Gonsalves, 711 N.E.2d 108, 110-11 (Mass. 1999); State v. Kim, 711 P.2d 1291, 1294 (Haw.
1985); see also State v. Mendez, 970 P.2d 722, 723-24 (Wash. 1999)
(accepting Mimms rule under state constitution, but declining to extend it
to passengers). While we have not explicitly addressed the issue, our
decisions have similarly applied a more demanding standard than Mimms in
the area of exit orders. In State v. Jewett, 148 Vt. 324, 327, 532 A.2d 958, 959 (1986), the defendant claimed that the police had violated his
rights under Chapter I, Article 11 of the Vermont Constitution by ordering
him out of his vehicle after an officer stopped him for erratic driving and
observed signs of intoxication. While recognizing the Fourth Amendment
rule announced in Mimms, we held that an order to exit one's vehicle is a
"further 'seizure' within the meaning of Article Eleven." Id. at 330, 532 A.2d at 961. We further held that such a seizure was "not, however,
completely outside the realm of legitimate law enforcement conduct where
the suspected criminal activity is DUI." Id.
¶ 15. Although Jewett did not expressly hold that some
justification for the "further seizure" represented by the exit order was
required under Article 11, the suggestion was implicit, and was so noted by
a number of courts and commentators. See, e.g., Gonsalves, 711 N.E.2d at
114 n.9 (citing Jewett as one of one several state decisions rejecting
Mimms); A. Small, Developments in State Constitutional Law: 1999, 31
Rutgers L. J. 1383, 1390 n. 49 (2000) (Vermont is one of three states to
have rejected Mimms). The suggestion implicit in Jewett was reinforced in
State v. Caron, 155 Vt. 492, 501, 586 A.2d 1127, 1132 (1990), where we
upheld an exit order after a motor-vehicle stop on the basis that the
police had a reasonable suspicion the occupants had committed a crime and
were armed and dangerous. "Where a police officer has made an initial stop
based on a reasonable suspicion that the occupants have participated in a
violent felony and there is a high likelihood that the occupants might be
dangerous, we see no reason to preclude the officer from taking the
protective measure of asking the occupants to step from the vehicle." Id.
¶ 16. Thus, we have consistently, albeit implicitly, adhered to the
rule - well after it was rejected in Mimms - that the test to determine
whether an exit order was justified under Article 11 is whether the
objective facts and circumstances would support a reasonable suspicion that
the safety of the officer, or of others, was at risk or that a crime has
been committed. What was implicit in Jewett and Caron we now determine to
make explicit. As explained more fully below, a rule requiring a minimal
level of objective justification for a police officer to order a driver
from his or her vehicle strikes the proper balance, in our view, between
the need to ensure the officer's safety and the constitutional imperative
of requiring individualized, accountable decisionmaking for every
governmental intrusion upon personal liberties.
¶ 17. We have long held that the police may stop and temporarily
detain a vehicle based on little more than a reasonable and articulable
suspicion of wrongdoing. State v. Lamb, 168 Vt. 194, 196, 720 A.2d 1101,
1102 (1998); State v. Ryea, 153 Vt. 451, 454, 571 A.2d 674, 675 (1990).
Implicit in this rule, however, is the corollary requirement that the
police intrusion proceed no further than necessary to effectuate the
purpose of the stop. Ryea, 153 Vt. at 455, 571 A.2d at 676. As the
Supreme Judicial Court of Massachusetts, in language strikingly applicable
to the facts of this case, has explained: "Citizens do not expect that
police officers handling a routine traffic violation will engage, in the
absence of justification, in stalling tactics, obfuscation, strained
conversation, or unjustified exit orders, to prolong the seizure in the
hope that, sooner or later, the stop might yield up some evidence of an
arrestable crime." Gonsalves, 711 N.E.2d at 112.
¶ 18. Nor is the additional intrusion occasioned by an order to
leave a stopped vehicle one that we would regard as "minimal." As Justice
Stevens, dissenting in Mimms, observed: "A woman stopped at night might
fear for her own safety; a person in poor health may object to standing in
the cold or rain; another who left home in haste to drive children or
spouse to school or to the train may not be fully dressed; an elderly
driver who presents no possible threat of violence may regard the police
command as nothing more than an arrogant and unnecessary display of
authority." Mimms, 434 U.S. at 120-21 (Stevens, J., dissenting). That a
small percentage of routine traffic stops may result in the detection of
more serious crime is no reason to subject the vast majority of citizens to
routine orders to leave their vehicles.
¶ 19. We believe further that dispensing entirely with the
requirement that an officer provide some reasoned explanation for an exit
order invites arbitrary, if not discriminatory, enforcement. See Mimms,
434 U.S. at 122 (Stevens, J., dissenting) (under majority rule "[s]ome
citizens will be subjected to this minor indignity while others - perhaps
those with more expensive cars, or different bumper stickers, or
different-colored skin - may escape it entirely"); Gonsalves, 711 N.E.2d
at 116 (Ireland, J., concurring) (noting dangers stemming from "unfettered
police power to order individuals out of automobiles without any
justification"). It may be that most officers would exercise such
unfettered authority responsibly and evenhandedly, but as Justice Kennedy,
dissenting in Wilson, aptly observed, "[l]iberty comes not from officials
by grace but from the Constitution by right." Wilson, 519 U.S. at 424
(Kennedy, J., dissenting).
¶ 20. Nor do we believe that such a rule will place law enforcement
officers at risk. The facts sufficient to justify an exit order need be
no more than an objective circumstance that would cause a reasonable
officer to believe it was necessary to protect the officer's, or another's,
safety or to investigate a suspected crime. While the rule may thus result
in relatively few cases where a cautious officer would lack an objective,
articulable basis for ordering a driver to leave a vehicle, as Justice
Kennedy noted, "[i]t does no disservice to police officers . . . to insist
upon [the] exercise of reasoned judgment." Id. at 423 (Kennedy, J.,
dissenting).
¶ 21. Applying this standard to the case at bar, we find the record
evidence to be virtually bereft of any reasonable, objective basis for the
officer's exit request, despite careful questioning of the officer on this
very point. Counsel inquired whether there "was . . . any safety concern
relative to ordering [defendant] out of his vehicle . . . ?" The officer
responded, "[t]here's always a safety concern," but provided no further
explanation specific to this stop. While the officer conceded that there
were times when he had not asked drivers to exit their vehicles during
traffic stops on Route 91, he acknowledged that there was nothing unusual
about this particular stop relative to safety that impelled him to do so.
He further acknowledged that there was no standard police policy for
questioning drivers in his cruiser rather than their own cars, and admitted
that he did it both ways. When pressed, the officer mentioned some factors
that might influence his decision, such as location, time of day and
traffic, but did not indicate that any of these had influenced his decision
concerning defendant. The weather on that early October afternoon was
clear, defendant's car was parked completely on the shoulder, and traffic
was light. The officer also acknowledged that defendant did not appear to
be armed or dangerous.
¶ 22. We are thus compelled to conclude that the record evidence
provides no objective basis for ordering defendant to leave his vehicle.
While given every opportunity, the officer did not indicate that he
believed his safety, or the defendant's, was at risk from passing traffic,
limited visibility, or any other hazard. There was obviously no concern to
separate defendant from other passengers in the vehicle, as defendant was
alone. There was no indication that defendant was engaged in any criminal
offense requiring further investigation outside the vehicle, such as DUI,
nor any suggestion that defendant was armed or dangerous. Therefore, we
conclude that the additional seizure represented by the officer's request
that defendant exit the vehicle was unsupported by the requisite showing of
need, and in violation of Chapter I, Article 11 of the Vermont
Constitution.
III.
¶ 23. The State asserts, however, that any lack of justification
was cured by defendant's voluntary consent to leave the vehicle. The
argument requires a careful review of the facts in light of the established
law governing consensual search and seizures. In this context, we have
adopted the federal standard, limiting the inquiry "to whether the consent
was voluntary, not whether there was a knowing and intelligent waiver. See
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 from the totality of the circumstances.
Id. The State bears the burden, in such an inquiry, of demonstrating that
the consent was freely given and not "coerced by threats or force, or
granted only in submission to a claim of lawful authority." Schneckloth,
412 U.S. at 233; see also State v. Sheehan, 171 Vt. 642, 643, 768 A.2d 1275, 1277 (2000) (mem.).
¶ 24. We have not definitively articulated the standard of review
of a trial court determination that a defendant voluntarily consented to a
search or seizure. While routinely observing that "[w]e review motions to
suppress de novo," State v. Chapman, __ Vt. __, __, 800 A.2d 446, 448
(2002); State v. Pierce, 173 Vt. 151, 152, 787 A.2d 1284, 1286 (2001);
State v. Graves, 170 Vt. 646, 646, 757 A.2d 462, 463 (2000) (mem.), we have
also on occasion appeared to apply a more deferential standard to the trial
court's determination. See, e.g., Sheehan, 171 Vt. at 643, 768 A.2d at
1278 (trial court did not err in finding that defendant had voluntarily
consented to police entry); State v. Badger, 141 Vt. 430, 444, 450 A.2d 336, 344 (1982) (noting that voluntariness of consent is factual question,
and holding that court's findings supported its conclusion). While the
federal appellate courts uniformly apply a clearly-erroneous standard to
the voluntary-consent issue, see United States v. Mendenhall, 446 U.S. 544,
557 (1980) (because trial court's finding of voluntariness was sustained by
the record, "the Court of Appeals was mistaken in substituting for that
finding its view of the evidence"); United States v. Solis, 299 F.3d 420,
436 (5th Cir. 2002) (appellate court reviews district court's finding of
voluntariness for clear error); State v. Thurman, 846 P.2d 1256, 1265 n.8
(Utah 1993) (collecting federal cases), many state courts hold that the
issue is a mixed question of law and fact requiring a two-step approach;
underlying findings of "historical fact" are reviewed under the clearly
erroneous standard, while the ultimate legal conclusion - or
"constitutional fact" - as to whether the historical facts establish
voluntariness is reviewed independently or de novo. See, e.g., Graham v.
State, 807 A.2d 75, 88 (Md. Ct. Spec. App. 2002); Vargas v. State, 18 S.W.3d 247, 253 (Tex. Ct. App. 2000); Thurman, 846 P.2d at 1268-1272; State
v. Phillips, 577 N.W.2d 794, 798-801 (Wis. 1998).
¶ 25. We need not specifically resolve the issue here, however, as
the trial court made no findings, and engaged in no reasoned analysis,
other than to state the bare conclusion that the car exit was not
involuntary. Hence, nothing in the court's decision is susceptible of
deferential review. Under these circumstances, we are compelled to review
the court's ruling for correctness, considered in light of the record
evidence as a whole.
¶ 26. The State's argument is premised principally on the fact that,
as revealed in the police videotape, the officer phrased the statement that
resulted in defendant's departure from the vehicle in the form of a
request, "[y]ou mind having a seat in my car while I check your license,
please?" The State correctly notes that mere questioning by the police
does not amount to a seizure, and that no coercion is present "so long as
the police do not convey a message that compliance with their request is
required." Florida v. Bostick, 501 U.S. 429, 434-35 (1991). The critical
inquiry is "whether a reasonable person would feel free to decline the
officers' requests or otherwise terminate the encounter." Id. at 436.
¶ 27. The Supreme Court has also instructed that there is no
"litmus-paper test for distinguishing a consensual encounter from a
seizure," Florida v. Royer, 460 U.S. 491, 506 (1983) (plurality opinion),
and that courts must therefore carefully consider the precise factual
setting and circumstances. As the high court has explained:
The test is necessarily imprecise, because it is designed to
assess the coercive effect of police conduct taken as a whole,
rather than to focus on particular details of that conduct in
isolation. Moreover, what constitutes a restraint on liberty
prompting a person to conclude that he is not free to "leave" will
vary, not only with the particular police conduct at issue, but
also with the setting in which the conduct occurs.
Michigan v. Chesternut, 486 U.S. 567, 573 (1988).
¶ 28. Viewing the circumstances here in their totality, we conclude
that a reasonable person in defendant's circumstances would not have felt
free to refuse when the officer asked him if he would "mind having a seat
in my car while I check your license." We base this conclusion on several
factors. First, the setting was inherently coercive; defendant had already
been seized by virtue of the initial motor-vehicle detention and the
officer's show of authority. See Ferris v. State, 735 A.2d 491, 502 (Md.
1999) (noting enhanced coercive nature of prior traffic detention in
holding that defendant's subsequent submission to officer's request that he
exit his vehicle was not voluntary); People v. H.J., 931 P.2d 1177, 1181
(Colo. 1997) ("[I]t strains credulity to imagine that any citizen, directly
on the heels of having been pulled over to the side of the road by armed
and uniformed police officers in marked patrol cars, would ever feel free
to leave or at liberty to ignore the police presence and go about his
business.") (Internal quotations and citations omitted). While perhaps not
"in custody" to the point of requiring Miranda warnings, see Berkemer v.
McCarty, 468 U.S. 420, 438-40 (1984), a driver detained for a motor-vehicle
violation is simply not in the same position as a person who is merely
approached and questioned by law enforcement officers on the street or in
an airport or common carrier. Cf. Bostick, 501 U.S. at 436 (police
questioning of bus passengers was not seizure under Fourth Amendment nor
inherently coercive); Royer, 460 U.S. at 497 (merely approaching and
questioning individual in public place does not amount to seizure under
Fourth Amendment).
¶ 29. We note, as well, that the officer's "request" to exit the
vehicle came almost immediately after his initial "request" to see
defendant's license and registration ("can I see your license and
registration, please?"). The latter request plainly communicated no more
choice to defendant than the former. See 23 V.S.A § 1601 (police officer
may demand and inspect driver's license and registration). Requiring a
person in defendant's position to distinguish the options legally available
to him in response to the two questions (no, he may not refuse the request
for license and registration but yes, he may refuse the request to exit the
vehicle because it is beyond the scope of the temporary detention) asks
more, in our view, than is reasonable or realistic to expect of the average
citizen. Furthermore, 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. Schneckloth, 412 U.S. at 249. The officer here gave
no indication to defendant that he could refuse to leave his vehicle, and
while the officer later claimed that he would have honored such a refusal,
he also acknowledged that in his eleven years as a law enforcement officer
he could recall only one person who had ever done so - a woman who did not
feel comfortable entering his cruiser.
¶ 30. We thus conclude that a reasonable person in defendant's
circumstances would not have felt free to refuse the officer's request. We
therefore hold that defendant was illegally seized when - absent any
objective danger to the officer or others, or a reasonable suspicion of
wrongdoing - he was required to exit the vehicle.
IV.
¶ 31. Because the seizure effected by the officer in requiring
defendant to exit the vehicle was illegal, we conclude that defendant's
subsequent "consents" to the search of his person, car, and home were
tainted and ineffective. (FN2) See Royer, 460 U.S. at 507-508 (where
defendant was illegally detained when he consented to search of his
luggage, "the consent was tainted by the illegality and was ineffective to
justify the search"). Accordingly, all of the evidence seized by the
police should have been suppressed. Although, to be sure, evidence
obtained by means of a valid consent following an illegal detention may in
some circumstances be admissible where the causal nexus with the original
illegality is sufficiently attenuated, State v. Phillips, 140 Vt. 210,
218, 436 A.2d 746, 751 (1981), the voluntary nature of any consent that
follows must necessarily be established by the State with clear and
positive evidence. See United States v. Sanchez-Jaramillo, 637 F.2d 1094,
1099 (7th Cir. 1980) ("The government bears a heavy burden of demonstrating
that consent given subsequent to an illegal detention was properly
obtained."); State v. Arroyo, 796 P.2d 684, 687-88 (Utah 1990) ("When the
prosecution attempts to prove voluntary consent after an illegal police
action . . . the prosecution 'has a much heavier burden to satisfy than
when proving consent to search' which does not follow police misconduct.")
(quoting United States v. Melendez-Gonzalez, 727 F.2d 407, 414 (5th Cir.
1984)). Among the factors to consider are the "temporal proximity" of the
illegal detention to the consent, and the presence of any "intervening
circumstances" between the two events. Sanchez-Jaramillo, 637 F.2d at 1099
(citing Brown v. Illinois, 422 U.S. 590, 603-604 (1975)).
¶ 32. The record here shows that defendant emptied his pockets
solely in response to the officer's "request," which was based on the
officer's stated concern that defendant not enter the police cruiser with
any weapons. As with the immediately preceding "request" that defendant
exit his vehicle, we discern no evidence that defendant's compliance was
anything other than a submission to the officer's authority. Furthermore,
there were no intervening events to attenuate the taint of the initial
illegality. See United States v. Jerez, 108 F.3d 684, 695 (7th Cir. 1997)
(illegal seizure "vitiated the appellants' subsequent consent" to search
where consent "followed almost immediately after the illegal seizure" with
"no intervening events of any significance"); Sanchez-Jaramillo, 637 F.2d
at 1100 (defendant's acquiescence to officer's request that he open
suitcase in the midst of illegal detention was not voluntary). The
officer's "request" was made in the immediate aftermath - indeed virtually
within seconds - of the illegal seizure, and was a direct exploitation of
that illegality, as the sole basis for the request was to facilitate moving
defendant from outside of his vehicle - where he had been illegally removed
- to inside the officer's cruiser. See Royer, 460 U.S. at 507-508
(exploitation of illegal detention was determinative factor in vitiating
defendant's consent to search luggage). Hence we cannot conclude the
State has carried its heavy burden of proving that the evidence obtained
from defendant's pocket was "sufficiently an act of free will to purge the
primary taint." Brown, 422 U.S. at 602 (quoting Wong Sun v. United States,
371 U.S. 471, 486 (1963)).
¶ 33. The same must also be said of defendant's submission to the
officer's subsequent requests to search his vehicle and home. As the
police videotape graphically reveals, the officer utilized the small amount
of marijuana illegally seized from defendant's pocket to leverage
defendant's additional consent to search for more contraband in these
additional locations. The coercive atmosphere and unequal tenor of these
exchanges was plainly established by the initial detention and continuing
seizure. As Justice Souter, speaking in a slightly different context,
aptly observed: "The scene was set and an atmosphere of obligatory
participation was established by this introduction. Later requests to
search prefaced with 'Do you mind . . .' would naturally have been
understood in the terms with which the encounter began." United States v.
Drayton, 563 U.S. 194, __, 122 S. Ct. 2105, 2116 (2002) (Souter, J.,
dissenting).
¶ 34. This is fundamentally a case about preserving personal
freedom. The erosion of liberty is a slow, subtle process and we are long
gone down the road before a memory of what we used to have causes us to
look back and notice our loss. Vermonters should be assured that when they
are stopped for speeding the consequence is a ticket and a fine, not a
license for law enforcement to exploit a temporary advantage. We hold that
the trial court erred in denying defendant's motion to suppress, and
therefore that the judgment must be reversed. Our decision renders it
unnecessary to address defendant's other claims. (FN3)
Reversed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Concurring
¶ 35. AMESTOY, C.J., concurring. When the public's interest in
the safety of its law enforcement officers is weighed against the
relatively minor intrusion upon the privacy interest of a driver ordered
out of a lawfully stopped vehicle, safety must prevail. Under the rule
formulated by the United States Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), and endorsed by a majority of the states, a law
enforcement officer may, consistent with the Fourth Amendment, routinely
require the driver to exit a lawfully stopped motor vehicle. This rule
recognizes that a police officer approaching a vehicle stopped on the
highway confronts grave risks, risks that - in the Supreme Court's judgment
- outweigh any benefit to be derived from subjecting the encounter to
after-the-fact judicial balancing. This is a judgment that I can readily
appreciate.
¶ 36. Nevertheless, I agree with this Court's determination that
our decisions have pointed in another direction, requiring some minimal
showing of necessity for removing the driver from his or her vehicle
following a routine traffic stop. As today's decision makes clear, and as
I wish to emphasize, however, the threshold showing for such an exit order
is relatively low. The test is simply whether a reasonably prudent officer
in the circumstances would believe that removing the driver from the
vehicle is necessary for the officer's safety or the safety of others, or
that criminal activity in addition to the traffic violation requires
further investigation.
¶ 37. Decisions applying similar tests from other states are
instructive in this regard. In Commonwealth v. Gonsalves, 711 N.E.2d 108,
112-113 (Mass. 1999), the seminal decision of the Supreme Judicial Court of
Massachusetts, the court emphasized that "[w]hile a mere hunch is not
enough . . . it does not take much for a police officer to establish a
reasonable basis to justify an exit order or search based on safety
concerns, and, if the basis is there, a court will uphold the order." In
Commonwealth v. Stampley, 771 N.E.2d 784, 786 (Mass. 2002), a state
trooper observed the driver and passengers of a stopped vehicle exhibit
unusual physical behavior, which included the driver bending forward and
reaching underneath the seat. In upholding the officer's exit order, the
court explained that "[t]he justification for an exit order does not depend
on the presence of an 'immediate threat' at the precise moment of the
order, but rather on the safety concerns raised by the entire circumstances
of the encounter." Id. at 789. Nor does conduct which can reasonably be
interpreted as suspicious need additional corroboration. Sufficient
justification for an exit order may be based on an occupant's bending or
ducking briefly out of sight, or reaching in some direction. Id. at
788-89.
¶ 38. A court deciding whether a police officer was justified in
ordering an occupant to step out of a vehicle must weigh the evidence "not
in terms of library analysis by scholars, but as understood by those versed
in the field of law enforcement." United States v. Cortez, 449 U.S. 411,
418 (1981); see State v. Stone, 170 Vt. 496, 506, 756 A.2d 785, 792 (2000)
(Amestoy, C.J., dissenting) (evidence that defendant hindered law
enforcement officer must be viewed from "the predicament of an officer
faced with the obligation to arrest an escapee in the remote area of a
darkened parking lot"). "Routine" traffic stops appear that way only after
the fact. An officer approaching a stopped vehicle on a roadside,
generally alone and frequently isolated, does not at that moment know what
may transpire. Accordingly, when a reasonably prudent police officer
perceives facts creating a "heightened awareness of danger," Stampley, 771 N.E.2d at 787, ample discretion must be afforded the officer to remove a
vehicle's occupants in order to better secure and control the situation.
With this understanding, I concur in the judgment.
_______________________________________
Chief Justice
------------------------------------------------------------------------------
Concurring
¶ 39. DOOLEY, J., concurring. I agree with the majority and join
the opinion to make it the opinion of the Court. I write, however, to make
two additional related points.
¶ 40. First, there is an alternative way to reach the same result
that is, to some extent, preferable. There is, in the many cases that
reach us involving search and seizure, the unstated assumption that there
are no limits on the powers of law enforcement officers except those we
find are embodied in the Constitution. The corollary to this assumption is
that neither the common law nor statutory law should be expected to play
any significant role in the definition of those powers. I find the
corollary and the assumption unfortunate. It discourages policy
formulation in the legislative branch and constitutionalizes every
decision, making it difficult to change.
¶ 41. In fact, police officers, like deputy sheriffs, are "entrusted
a portion of the sovereign authority of the State, and [their] duties are
performed in the execution of the law, in the exercise of power and
authority bestowed by law." Gross v. Gates, 109 Vt. 156, 162, 194 A. 465,
468 (1937) (emphasis added); see also 20 V.S.A. § 1914 (state police have
law enforcement power of sheriff). Much of the power of police officers is
governed by the common law. See, e.g., Holyoke Mut. Fire Ins. Co. v.
Horton, 100 Vt. 228, 231, 136 A. 385, 386 (1927). In the absence of power
derived from the common law, an officer's actions must be authorized by
statutory law. See Mazzolini v. Gifford, 90 Vt. 352, 354, 98 A. 904, 904
(1916) (because Legislature had not explicitly authorized arrest without a
warrant for crime of selling goods on Sunday, arrest was unlawful).
¶ 42. We have never defined the common law power of a police officer
to order a motor vehicle operator to exit the motor vehicle and enter the
police cruiser. Other state courts have, however, detailed this power.
Thus, in People v. Mickelson, 380 P.2d 658, 660 (Cal. 1963), the California
Supreme Court held: "If the circumstances warrant it, [the officer] may in
self protection request a suspect to alight from an automobile or to submit
to a superficial search for concealed weapons." That statement, which is
representative of decisions in the area, states the common law in terms
very similar to our statement of the constitutional rule in this decision.
It appears that the common law rule and the constitutional requirement are
the same.
¶ 43. The Legislature has not addressed the question before us, at
least in sufficient detail to form a grounds for our decision. Section
1012(a), (b) of Title 23 requires an operator who is stopped for a
suspected motor vehicle violation to "give his or her name and address and
the name and address of the owner of the motor vehicle" and to "produce his
or her operator's license and the registration certificate for the motor
vehicle." Section 1013 authorizes an enforcement officer to "make
reasonable orders in enforcement of this title or to prevent or alleviate
traffic congestion, property damage or personal injury." The general
authorization for "reasonable orders" provides us little guidance and, in
the absence of any justification, we would find that the order to exit was
not reasonable in this case.
¶ 44. In short, we can reach the same result without invoking the
Vermont Constitution and leave more flexibility to the Legislature for a
response.
¶ 45. My second point is that there is an additional, different
constitutional problem related to exit orders. It is apparent from the
large volume of incidents that give rise to the use of exit orders. The
Vermont Judicial Bureau opened 113,734 cases in Fiscal Year 2002, over
110,000 of which were based on traffic tickets. This means that the facts
of this case, at least up until the discovery of the drugs, were replicated
thousands and thousands of times during the course of the year. In many of
those cases, the officer ordered the driver, and possibly the passenger(s),
to exit from the vehicle; in many, the officer did not order an exit. This
record suggests there was no clear standard for that choice; it is based on
the officer's judgment. The record also suggests that the intrusiveness of
the encounter will increase if there is an exit order since it may involve
a search of the vehicle operator.
¶ 46. I do not think case-by-case adjudication will work well to
develop the law in this context. The weakness of a case-by-case
adjudication approach has been described by one commentator:
Both the authority of law enforcement officers to engage in
certain activities and the limits on that authority might be
developed in case law. Perhaps, however, this method is
unacceptably ineffective and expensive. It may not produce the
comprehensive guidelines necessary to acceptable administration of
police authority. Or, if the case law does produce comprehensive
guidelines, it may accomplish this only after a prolonged period
of uncertainty during which the authority is exercised within
insufficient limits. To the extent that the case law method
contains these defects, legislative action may be both desirable
and constitutionally necessary.
G. Dix, Nonarrest Investigatory Detentions in Search and Seizure Law, 1985
Duke L.J. 849, 912 (1985). This has been the criticism of the decision in
Commonwealth v. Gonsalves, 711 N.E.2d 108 (Mass. 1999). See A. Small,
Developments in State Constitutional Law, 31 Rutgers L.J. 1383, 1393-95
(2000).
¶ 47. Chief Justice Amestoy has attempted to avoid the deficiency of
case-by-case adjudication by describing the burden to justify an exit order
as very light. I am skeptical that this attempt will be entirely
successful, as Gonsalves itself demonstrates. Gonsalves involves a
passenger who was stopped in a taxicab at night. The events unfolded as
follows:
In the course of questioning the driver, the trooper trained his
flashlight on the occupants of the car, something which he
routinely did on such stops for his personal safety. The trooper
thought the defendant was extremely nervous. His hands were
trembling and moving from his lap to the seat and back to his lap
again, and he appeared to be breathing heavily. Because the
defendant appeared nervous, the trooper ordered him to step out of
the taxi.
711 N.E.2d at 110. Unlike this case, where the officer pointed to no facts
to justify the exit order, Gonsalves represents a judgment that some facts
are not enough, a judgment that may not be easy to apply.
¶ 48. More important, the constitutional requirement which we will
shape on a case-by-case basis does not address the uniformity of
application of any use of exit orders. With over 100,000 traffic stops per
year, I believe we have to be concerned how discretion to order this
additional seizure is exercised. In many respects, the situation is
comparable to DUI roadblocks, where we recognized that we were balancing
the public's safety interest against the privacy interest of motorists.
See State v. Martin, 145 Vt. 562, 568, 496 A.2d 442, 446-47 (1985). This
Court upheld roadblocks if they met a number of criteria:
In addressing the constitutionality of a particular DUI roadblock,
the trial court should review the roadblock's characteristics so
that when it balances the degree to which the roadblock serves the
public interest against the degree to which it intrudes upon an
individual's privacy, it will be better able to analyze which
criteria it must consider and how much weight it should give to
each one in deciding whether a roadblock has sustained all Fourth
Amendment challenges. As a general rule, a DUI roadblock will
pass constitutional muster if: (1) the initial stop and the
contact between the officers in the field and the motorist
involves an explanation of the nature of the roadblock and minimal
detention of a nonimpaired driver; (2) the discretion of the
officers in the field, as to the method to be utilized in
selecting vehicles to be stopped, is carefully circumscribed by
clear objective guidelines established by a high level
administrative official; (3) the guidelines are followed in the
operation of the roadblock; (4) approaching drivers are given
adequate warning that there is a roadblock ahead; (5) the
likelihood of apprehension, fear or surprise is dispelled by a
visible display of legitimate police authority at the roadblock;
and (6) vehicles are stopped on a systematic, nonrandom basis that
shows drivers they are not being singled out for arbitrary
reasons.
Id. at 571, 496 A.2d at 448. We applied the same standards under Article
11. See State v. Record, 150 Vt. 84, 88, 548 A.2d 422, 425 (1988); see
also State v. Berard, 154 Vt. 306, 314, 576 A.2d 118, 122 (1990) ("clear,
objective guidelines" required by Article 11 for random searches of prison
cells). I am not suggesting that all of the roadblock criteria are
necessary for exit orders. I do think the requirement of "clear, objective
guidelines" is applicable.
¶ 49. I have made these two points together because I believe the
issue before us is better resolved by the legislative and executive
branches because they are in the position to develop clear, objective
guidelines for the use of exit orders that are much preferable to our
case-by-case adjudication and much preferable to continuing constitutional
development in this area. Of course, if these branches develop an
authorization that conflicts with Article 11, we have to enforce the
constitutional requirement. We should, however, give these branches room
to develop a workable balance between officer safety, and the need to
investigate suspected criminal activity, and the privacy interests of the
operator and passengers.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Justice Morse sat for oral argument but did not participate in this
decision.
FN2. Although the trial court ruled that the consents to the search of
defendant's person, car and home were voluntary, it did not consider the
issue in the context of the immediately preceding illegal seizure resulting
from the car exit.
FN3. We note that defendant did not argue below, or on appeal, that
statutory authorization was necessary for the officer to remove a driver
from his or her vehicle following an ordinary traffic stop, and we
therefore need not consider this issue.
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