State v. Barry, 2021-013

Docket Nº2021-013
Citation2021 VT 83
Case DateOctober 29, 2021
CourtUnited States State Supreme Court of Vermont

2021 VT 83

State of Vermont

Shannon C. Barry

No. 2021-013

Supreme Court of Vermont

October 29, 2021

On Appeal from Superior Court, Washington Unit, Criminal Division Mary L. Morrissey, J.

Alfonso Villegas, Washington County Deputy State's Attorney, Barre, for Plaintiff-Appellant.

Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.


¶ 1. In this interlocutory appeal, the State contests the trial court's order granting defendant Shannon Barry's motion to suppress statements she made to law enforcement officers before her arrest. We conclude that defendant was in custody and had not been advised of her rights under Miranda v. Arizona, 384 U.S. 436, 444 (1966), and therefore affirm the suppression order.

¶ 2. The parties do not dispute the following facts. In June 2019, the Barre City Police Department launched an investigation after Heather Larocque died from taking fentanyl-laced heroin. The investigation involved two officers: Detective Pontbriand to look into the death, and


Corporal Houle to unravel the drug-distribution network implicated in the death. The investigation led the officers to believe defendant sold the fentanyl-laced heroin to Larocque.

¶ 3. Based on this belief, on July 31, 2019, Corporal Houle made efforts to meet and speak with defendant. He first called defendant to request a meeting. Defendant asked if she needed a lawyer. Corporal Houle told her that she could bring an attorney if she wanted one, but she would not be in custody during the meeting. During a second phone call on August 1, defendant agreed to meet Corporal Houle the following day at the Barre police station. Corporal Houle told her he wanted to speak to her about Larocque's death.

¶ 4. Defendant did not show up for the August 2 appointment. Corporal Houle contacted defendant and rescheduled their meeting, but again, defendant did not show. This time she left a voicemail informing Corporal Houle she had forgotten that she had to be in court in Woodstock that day. On August 6, Corporal Houle called defendant approximately ten times to no avail. Receiving no response from defendant to his many calls, Corporal Houle "got the impression that [d]efendant did not want to speak with him."

¶ 5. On August 7, Corporal Houle and Detective Pontbriand went looking for defendant. They received some information that she might be in the Chelsea area and went there to try to find her. As they drove into Chelsea, they saw defendant walk into a convenience store. The officers parked their unmarked car at the side of the store. Corporal Houle entered the store and called out to defendant. He told her that they "needed to talk" and asked her to follow him outside. Defendant silently complied.

¶ 6. Outside, pursuant to the officers' request, defendant placed her handbag on the officers' car, where it remained for the rest of her conversation with them. Corporal Houle asked defendant if she had any weapons on her and if he could check to confirm. Corporal Houle conducted a pat down, which did not reveal any objects.


¶ 7. During the ensuing conversation, defendant stood at the side of the store with her back to the building, facing the officers' car. The officers stood on either side of the front of the car, roughly three to four feet from defendant. This location was visible from the main road. While the three were speaking, other people entered and exited the store. The officers wore plain clothes except for a duty vest with "POLICE" printed on the back and a badge displayed on the front. They both had holstered firearms.

¶ 8. Corporal Houle told defendant he "knew she sold heroin at the Dollar General in Williamstown and that she had met someone during their lunch [break] to get heroin prior to delivering it to [Larocque]." He also said they "knew somebody else was involved and hopefully [defendant] would work with [them]." In his affidavit, Corporal Houle described their approach to defendant as, "you're on the hook, you're involved with this, we know you were-do you want to help us move up the chain and maybe get some consideration, because again, you're not the one who supplied it." He asked defendant if she would be willing to provide information on the individuals who supplied her with the drugs sold to Larocque. Defendant provided inculpatory information, including details regarding her sale of drugs to Larocque, but declined to share anything further for fear for herself and her family.

¶ 9. At no point during the discussion, which lasted between ten and twenty minutes, did the officers tell defendant she was free to leave or to not answer their questions. Defendant never requested to leave but believed she would have been arrested if she had tried to do so. She did not feel threatened and did not feel the officers were being dishonest in their conversation with her. Throughout the conversation, defendant was not handcuffed, and the officers' weapons remained holstered. At the conclusion of the conversation, the officers arrested defendant. At no time prior to her arrest was defendant informed of her Miranda rights.

¶ 10. Defendant was charged with selling or dispensing a regulated drug with death resulting, in violation of 18 V.S.A. § 4250(a). Defendant filed a motion to suppress her statements


made to the officers at the store in Chelsea, arguing these statements were obtained in violation of her rights under the Fifth Amendment of the U.S. Constitution and Chapter I, Article 10 of the Vermont Constitution. Based on the undisputed facts, the trial court concluded defendant had been subjected to a custodial interrogation. The trial court granted defendant's motion to suppress, holding the officers violated defendant's rights under the Fifth Amendment and Article 10 when they subjected her to a custodial interrogation without first providing Miranda warnings.

¶ 11. The State now appeals the trial court's grant of defendant's motion to suppress, arguing it improperly found that defendant was in custody during her conversation with police. "In reviewing a custody determination on a motion to suppress, we follow a two-step process." State v. Lambert, 2021 VT 23, ¶ 21, __Vt.__, 255 A.3d 747. We accept the trial court's findings of fact unless clearly erroneous, and review the question of whether a suspect was in custody de novo. Id. In this case, there is no factual dispute and no claim any trial court finding is erroneous, so we proceed to a de novo review of the legal question of custody.

¶ 12. The Fifth Amendment and Article 10 provide individuals with a privilege against self-incrimination. U.S. Const. amend. V; Vt. Const. ch. I, art. 10. Article 10 and the Fifth Amendment are the same for the purposes of this right. State v. Rheaume, 2004 VT 35, ¶ 18, 176 Vt. 413, 853 A.2d 1259. To protect the privilege against self-incrimination, the U.S. Supreme Court established that an officer must use "procedural safeguards" before conducting a "custodial interrogation." Miranda, 384 U.S. at 444. These procedural safeguards, known commonly as Miranda warnings, require a suspect be informed that "he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. The remedy for a violation of one's Miranda rights is the suppression of statements made to an officer before warnings were provided. State v. Badger, 141 Vt. 430, 438, 450 A.2d 336, 341 (1982); Missouri v. Seibert, 542 U.S. 600, 608 (2004).


¶ 13. The right to Miranda warnings is triggered at the onset of a "custodial interrogation." Miranda, 384 U.S. at 444. An individual is in custody for purposes of Miranda when" 'there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.'" State v. LeClaire, 2003 VT 4, ¶ 16, 175 Vt. 52, 819 A.2d 719 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). The latter requires "an objective inquiry into the totality of the circumstances to determine if a reasonable person would believe he or she were free to leave or to refuse to answer police...

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