State v. Allis

• Decision Date: 13 October 2017
• Docket Number: No. 2016-064,2016-064
• Citation: 2017 VT 96
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Christian Allis

2017 VT 96

State of Vermont v. Christian Allis

No. 2016-064

Supreme Court of Vermont

March Term, 2017

October 13, 2017

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

On Appeal from Superior Court, Franklin Unit, Criminal Division

Robert A. Mello, J.

Heather J. Brochu, Franklin County Deputy State's Attorney, St. Albans, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. DOOLEY, J. Defendant Christian Allis entered a conditional plea to a first offense for driving under the influence (DUI) in violation of 23 V.S.A. § 1201(a)(2), reserving the right to appeal the trial court's denial of his motion to suppress evidence obtained during law enforcement entry into his home. Defendant argues on appeal that the trial court's decision denying his suppression motion was in error because: (1) the police entered his home without consent; and (2) even if there was consent, the State failed to prove that the consent was voluntarily given. We hold that the State failed to meet its burden to prove consent to enter and, accordingly, reverse.

¶ 2. The facts as found by the trial court in defendant's civil suspension hearing may be summarized as follows. On October 5, 2015, a St. Albans police officer responded to a report of a motor vehicle crash at a parking lot in St. Albans. Upon arrival at the scene, the officer observed a pickup truck in a ditch near a telephone pole and tire marks in the gravel that suggested the vehicle had been doing "donuts." Front-end damage to the vehicle indicated that the vehicle had struck the pole before landing in the ditch. The officer checked the license plate registration and identified defendant as the vehicle's owner.

¶ 3. The officer testified that he then went to defendant's residence and, at the door, spoke with defendant's girlfriend, who also lived at the residence. Defendant's girlfriend testified that, upon answering the door, the officer asked for defendant, stating that he was investigating an accident. Defendant's girlfriend told the officer that she would see if defendant was home, though she knew that he was, and then shut the door and called to defendant, who came down to the kitchen. She then returned to the door and opened it, so that from the doorway defendant was visible to the first officer, as well as a second officer that joined him. As she explained in her testimony at defendant's civil suspension hearing: "[Defendant] came down into the kitchen and I had opened the door and I made a gesture to [the officer] that he's right there." She recalled that she then went into the kitchen while the officers asked defendant a few questions from the doorway, and "the next thing I know" the officers were in the kitchen. She did not see them come up the steps leading from the doorway to the kitchen and did not ask them to come in or verbally consent to a request from the officers to enter the residence. Nor did she tell them not to enter or to leave. She did acknowledge that she knew the officers' intent was to speak with defendant when she went to retrieve him.

¶ 4. The State did not ask the investigating officer whether he had permission to enter the house; and the officer did not testify to the gesture the girlfriend alleged she made. In fact, he testified that defendant came to the door. The officer testified that defendant appeared to be "heavily intoxicated" and that the officer detected an odor of alcohol. The officer asked defendant to step outside and, after additional questioning, arrested him for DUI and transported him to the station for blood alcohol testing. The test revealed that defendant had a blood alcohol content of 0.348%. The second officer did not testify.

¶ 5. Following a civil suspension hearing, defendant, through counsel, moved to suppress all evidence obtained subsequent to the officers' entrance into his residence. Defendant claimed that the officers' entry into his home was unlawful and that, therefore, the information obtained thereafter must be excluded. The trial court denied defendant's motion in a written ruling, concluding that defendant's girlfriend had "implicitly invite[d]" the officers into the home. The court found as fact that the investigating officer "interpreted her action as inviting him in." This appeal followed.

¶ 6. A trial court's decision on a motion to suppress is a mixed question of fact and law, "that is, whether the factual findings supported by the record lead to the conclusion, that, as a matter of law, suppression of evidence was or was not necessary." State v. Lawrence, 2003 VT 68, ¶ 9, 175 Vt. 600, 834 A.2d 10 (mem.). Thus, our review is two-fold with respect to whether consent was given. We "apply a clearly erroneous standard" to the trial court's factual findings and independently review its ultimate legal conclusion concerning suppression. State v. Stevens, 2004 VT 23, ¶ 10, 176 Vt. 613, 848 A.2d 330 (mem.) (quotation omitted).

¶ 7. Defendant asks us to hold that, as a matter of law, law enforcement may not enter a home unless officers request permission to enter and subjects explicitly grant such permission.Because the investigating officer did not ask to enter defendant's home and there was no explicit grant of permission, the rule defendant requests would decide this case in defendant's favor. But this rule would also require us to disregard the settled rule that "[c]onsent can result from conduct which would be understood by a reasonable person as conveying consent." Id. ¶ 13; see also Harris v. Carbonneau, 165 Vt. 433, 437, 685 A.2d 296, 299 (1996).¹

¶ 8. The necessary conduct can vary. In Stevens, the defendant implied consent to search her property when she retrieved the key to a kennel and opened the kennel for law enforcement at their request. Stevens, 2004 VT 23, ¶ 13. And in Harris, the defendant similarly implied consent when she opened an interior door, attempted unsuccessfully to open an exterior door, and then backed her wheelchair out of the way as a process server opened the door and entered. Harris, 165 Vt. at 437, 685 A.2d at 299.

¶ 9. The Fourth Amendment of the U.S. Constitution protects "[t]he right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures." And Chapter I, Article 11 of the Vermont Constitution guarantees "[t]hat the people have a right to hold . . . their houses . . . free from search and seizure." These provisions are implemented by the rule that a search is typically lawful only with probable cause and a warrant or with the voluntary consent of someone authorized to give such consent. State v. Zaccaro, 154 Vt. 83, 87, 574 A.2d 1256, 1259 (1990); see also Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

¶ 10. When the State seeks admission of evidence obtained during a search based on consent, the State bears the burden of demonstrating that someone authorized to consent did, in fact, voluntarily give such consent. State v. Sprague, 2003 VT 20, ¶ 23, 175 Vt. 123, 824 A.2d539 (holding that "[t]he State bears the burden . . . of demonstrating that the consent was freely given"); Florida v. Royer, 460 U.S. 491, 497 (1983) (affirming that "where the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained"); Bumper v. North Carolina, 391 U.S. 543, 548 (1968) ("When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.").

¶ 11. In analyzing this case, we start with the facts. Two witnesses testified to the relevant events. The State's witness—the investigating officer—testified that defendant came to the door; his testimony did not address the officer's entry into the house. Without stating so, the court rejected the officer's testimony. Instead, the court accepted most of the testimony from the other witness—defendant's girlfriend.

¶ 12. One of the findings could be based only on testimony from the officer: "Although [defendant's girlfriend] had not expressly stated that [the officer] could come into the house, he interpreted her action as inviting him in." There is no testimony from either witness that supports the last phrase of this finding—that the officer interpreted the girlfriend's action as an invitation to enter. The finding is clearly erroneous.

¶ 13. The court followed the above finding with the following finding: "Therefore, [the investigating officer] and another officer walked through the doorway that [defendant's girlfriend] had just opened for him, and they followed her into the entry way, up the short set of stairs and into the kitchen, where the officers met and spoke with the defendant." The finding is made misleading by the opening word "therefore," suggesting that the entry into the house occurred because the officer interpreted the girlfriend's actions as an invitation. It also appears to be misleading with respect to timing, specifying that the officer walked through the entry door intothe house just after it was opened. In fact, the only evidence was that after the girlfriend opened the door and walked up to the kitchen, a conversation started between defendant and the officers who were standing outside the door. At some point after asking defendant questions, the investigating officer entered the house through the open door and proceeded to the kitchen. While the officer entered the house through an open door, he did not do so just...