State v. Bauder

• Decision Date: 16 March 2007
• Docket Number: No. 04-438.,04-438.
• Parties: STATE of Vermont v. Brian E. BAUDER.
• Court: Vermont Supreme Court

924 A.2d 38

2007 VT 16

STATE of Vermont v. Brian E. BAUDER.

No. 04-438.

Supreme Court of Vermont.

March 16, 2007.

Robert Simpson, Chittenden County State's Attorney, and Colin McNeil, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Henry Hinton, Appellate Defender, and Stephanie Pessin, Law Clerk (on the Brief), Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

¶ 1. JOHNSON, J.

The question presented in this case is whether law-enforcement officers may routinely search a motor vehicle without a warrant, after its occupant has been arrested, handcuffed, and secured in the back seat of a police cruiser, absent a reasonable need to protect the officers' safety or preserve evidence of a crime. We hold that such warrantless searches offend the core values underlying the right to be free from unreasonable searches and seizures embodied in Chapter I, Article 11 of the Vermont Constitution. Accordingly, the trial court judgment to the contrary is reversed.

¶ 2. During the early morning hours of September 23, 2003, South Burlington police officer David Solomon observed a vehicle on Shelburne Road that appeared to be traveling at a speed of forty-five to fifty miles per hour in a thirty-five mile-per-hour zone. The officer followed the vehicle, which weaved several times and continued to travel in excess of the speed limit. Based on these observations, the officer activated his blue lights. The vehicle, in response, pulled into the lot of a service station on Shelburne Road.

¶ 3. While speaking with the driver, later identified as defendant, the officer detected a faint odor of intoxicants and observed defendant's eyes to be watery and bloodshot. At the officer's request, defendant exited the vehicle and performed a number of field sobriety tests. Based on his further observations, the officer arrested defendant for driving under the influence (DUI), handcuffed him, and placed him in the rear of his police cruiser. A woman passenger in the vehicle was identified, released, and left the scene. Defendant produced an unsigned bill of sale that purported to vest title to the vehicle in himself, but a check of the vehicle registration failed to identify defendant as the vehicle's owner. A further records check disclosed that defendant's Texas driver's license was suspended.

¶ 4. After defendant was arrested and placed in the police cruiser, Officer Solomon and another officer who had arrived as backup searched defendant's car. Officer Solomon later testified that he routinely searches the vehicles of drivers arrested for DUI under the "incident-to-arrest" doctrine, confining his search to what he described as the "lungeable" area of the vehicle, i.e., the area that the driver or passengers could potentially reach. The officer acknowledged, however, that he did not feel in any danger from defendant, who was handcuffed and seated in the back of the police cruiser at the time of the search. Nor did the officer harbor any concern that evidence in the vehicle might be removed or destroyed.

¶ 5. In their initial search of the vehicle, the officers discovered the head of a parking meter behind the driver's seat, a pipe with burnt residue in an open compartment attached to the driver's door, and an empty beer can and a glass jar containing fragments of a green leafy substance under the driver's seat. The officers opened the jar and smelled the contents, confirming their suspicion that it had contained marijuana. Officer Solomon also detected a very faint odor of marijuana in the vehicle, although he acknowledged in his affidavit that the odor was not consistent with having been freshly smoked.

¶ 6. Having previously concluded that they would not permit the vehicle to be driven from the scene absent proof of ownership and insurance, the officers further determined — based on their initial search — to impound the car, tow it to the police station, and apply for a search warrant. A warrant was granted, and the subsequent search of a backpack on the back seat of the vehicle uncovered a clear plastic bag containing a white powdery substance, later determined to be 7.2 grams of the drug ecstasy.¹

¶ 7. Defendant was charged with possession of marijuana, possession of ecstasy, and possession of stolen property. He moved to suppress all of the evidence on the ground that it had been discovered pursuant to an illegal search incident to arrest. In his memorandum in support of the motion, defendant urged rejection of the federal Fourth Amendment standard set forth in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which automatically permits the warrantless search of a motor vehicle following the arrest of its operator under the search-incident-to-arrest doctrine. Defendant argued for a more protective standard under Chapter I, Article 11 of the Vermont Constitution, to require a showing by the government that exigent circumstances justified the warrantless search to secure the officers' safety or preserve evidence of a crime.²

¶ 8. Following a hearing in which Officer Solomon testified to the circumstances of the stop and search, the court issued a written decision denying the motion to suppress. The court found that the warrantless search comported with both state and federal law as a search incident to arrest. Defendant later entered a conditional plea of guilty to one count of possession of ecstasy, and received a suspended sentence of two to five years and an order of restitution, all stayed pending the outcome of this appeal.

¶ 9. A motion to suppress evidence presents a mixed question of fact and law. While we uphold the trial court's factual findings absent clear error, we review the trial court's conclusions of law de novo. State v. Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280.

¶ 10. As noted, this appeal presents a fundamental question concerning the extent to which Article 11 authorizes a search incident to arrest following a motorist's arrest for DUI. In addressing this issue, we do not write on a clean slate. While we have recognized that the Fourth Amendment and Article 11 both seek to protect our "`freedom from unreasonable government intrusions into ... legitimate expectations of privacy,'" State v. Kirchoff, 156 Vt. 1, 6, 587 A.2d 988, 992 (1991) (quoting Oliver v. United States, 466 U.S. 170, 187, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (Marshall, J., dissenting)), we have also long held that our traditional Vermont values of privacy and individual freedom — embodied in Article 11 — may require greater protection than that afforded by the federal Constitution. See State v. Rheaume, 2005 VT 106, ¶ 8 n. *, 179 Vt. 39, 889 A.2d 711 (recalling the extensive case law holding that Article 11 "affords individuals greater privacy rights than its federal counterpart in certain circumstances"). Recently, for example, we held that law-enforcement officers must have a reasonable basis to believe that their safety is at risk or a crime requires investigation to order a driver stopped for a motor vehicle violation out of his or her vehicle. State v. Sprague, 2003 VT 20, ¶ 16, 175 Vt. 123, 824 A.2d 539. Although the United States Supreme Court has ruled — to the contrary — that the Fourth Amendment permits routine exit orders in such circumstances, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), we concluded in Sprague that "a rule requiring a minimal level of objective justification ... strikes the proper balance ... 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." Sprague, 2003 VT 20, ¶ 16, 175 Vt. 123, 824 A.2d 539.

¶ 11. Sprague is especially instructive for our purposes here because it illustrates the principles that this Court applies in weighing the competing interests of individual freedom and effective law enforcement that invariably underlie Article 11 cases. In Mimms the Supreme Court embraced a "bright-line" rule for officers to follow by allowing them to order drivers out of their vehicles without any particularized suspicion or safety concern. In Sprague, however, we rejected administrative simplicity as an adequate basis for a seizure when weighed against the individual's right to be free from arbitrary police intrusions. "[D]ispensing entirely with the requirement that an officer provide some reasoned explanation for an exit order," we observed, "invites arbitrary, if not discriminatory, enforcement." Id. ¶ 19. Hence, we required an individualized showing of some "objective circumstance" that would cause a reasonable officer to believe the order was necessary to protect the officer's safety or to investigate a suspected crime. Id. ¶ 20.

¶ 12. Although the specific holding in Sprague was new, its basic reasoning was consistent with many of our earlier decisions. A similar balance was struck, for example, in Kirchoff, where we rejected a Supreme Court ruling that privacy in land may not extend beyond the immediate area surrounding the home, observing that "[t]his per se approach cannot be squared with Article 11." 156 Vt. at 8, 587 A.2d at 993. State v. Savva similarly stands for the principled rejection of "bright-line" rules or administrative efficiency as adequate grounds for dispensing with the constitutionally based warrant requirement. 159 Vt. 75, 616 A.2d 774 (1991). Confronted, as in Kirchoff, with several longstanding Supreme Court precedents — in this case granting police authority to automatically search closed containers within a vehicle — we nevertheless rejected the high court's "bright-line tests ... because these tests fail to do justice to the values underlying Article 11." Savva, 159 Vt. at 87, 616 A.2d at 781 (quotation omitted).

¶ 13. The...