State v. Betts, 11–371.

• Citation: 75 A.3d 629,2013 VT 53
• Decision Date: 02 August 2013
• Docket Number: No. 11–371.,11–371.
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. Asim BETTS.

75 A.3d 629

2013 VT 53

STATE of Vermont

v.Asim BETTS.

No. 11–371.

Supreme Court of Vermont.

Aug. 2, 2013.

William H. Sorrell, Attorney General, and Evan P. Meenan, Assistant Attorney General, Montpelier, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General and Robert Regan, Legal Intern, Montpelier, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

REIBER, C.J.

¶ 1. Defendant Asim Betts was charged in June 2010 with felony possession of crack cocaine under 18 V.S.A. § 4231(a)(2) after the vehicle in which he was a passenger was stopped and he was transported to the police barracks. After the trial court denied a motion to suppress evidence and to dismiss the charges, defendant entered into a conditional plea agreement, reserving the right to appeal the trial court's suppression decision. Defendant argues that all evidence should have been suppressed under the Fourth Amendment to the United States Constitution and Article 11 of the Vermont Constitution because his consent to be taken to the police barracks for a strip search was invalid. We conclude that defendant's consent was obtained only in response to the threat of an unlawful warrantless arrest under both the Fourth Amendment and Article 11 and, therefore, reverse.

¶ 2. The facts may be summarized as follows.¹ On June 7, 2010, sometime after 10:16 a.m., a state trooper spoke with a confidential informant who said he had seen “White Steve,” whom the trooper knew from previous investigations to be Steven McCauley, and an unknown black male “in possession of a large amount of crack cocaine.” It was unclear how recently the informant had seen the men in possession of the drugs: According to the trooper's affidavit, the informant had seen the drugs at some point during the preceding twenty-four hours; the trooper later testified that the informant had seen the drugs more recently than that, some five hours before the stop. According to the trooper's testimony, the informant, whose identity was never revealed, “advised that ... White Steve was driving around in a white Ford Explorer, and had an unknown African–American male subject in the vehicle with him, and that individual had a significant amount of crack cocaine on his person.” The trooper testified that the informant, who had previously provided information that led to arrests and charges, did not provide any additional details regarding the quantity, packaging, or location of the drugs he purported to have seen.²

¶ 3. At about 11:30 a.m., while driving by on a public highway, the trooper spotted a white Ford Explorer at the location indicated by the informant and ran a license-plate check to verify it was McCauley's sport-utility vehicle. In doing so, the trooper learned that McCauley's license was suspended. The trooper did not stop the vehicle at that time but instead kept a “loose tail” for about two hours and forty-five minutes before pulling it over. The trooper confirmed that, during the lengthy period of time he observed the vehicle, he saw nothing that offered indicia of drug-related activity.

¶ 4. At the stop, the trooper first approached McCauley, who was driving; defendant occupied the passenger seat. The conversation was not recorded because the trooper was not wearing a functioning microphone. The trooper testified that he told McCauley that he was under suspension, did not have a front license plate, and that the trooper had received information about crack in the car. Several minutes after the initial stop, another officer arrived. From what can be discerned from the dashboard camera mounted in the trooper's cruiser, the other officer walked toward the Explorer's passenger side. Meanwhile, McCauley got out of the vehicle and continued to speak with the trooper. Both appeared from the cruiser video to be standing within earshot of the Explorer, where defendant remained seated, although, again the content of the conversation was not recorded.

¶ 5. Describing his interaction with McCauley, the trooper testified during the suppression hearing: “I explained to him the information that I had, and that I would be asking for consent [to search], and if not I was prepared to seize their persons and the vehicle to apply for a warrant.” In response to questioning, the trooper said he told the men that “they both would be seized, as would the vehicle.” The trooper in his testimony agreed that the men would be handcuffed while the trooper made contact with a judge and waited for the judge to review the warrant application. The trooper said: “I didn't explain it all in detail and that depth to them, but I told them that they would be seized, as would the vehicle, go to the barracks, and apply for a warrant.”

¶ 6. At some point during the conversation, McCauley told the trooper that he “was crazy, and that there was no drugs in the car or on their person” and agreed then to consent to a car and body search, according to the trooper's testimony. The trooper left McCauley with another officer to fill out a consent-to-search form and spoke with defendant, who remained in the Explorer. In his testimony during the first day of the suppression hearing, the trooper described the conversation as follows:

[Trooper]: I told him if the consent was denied, that these were the options that we had, and I was asking for a consent, and I explained to him the information that I had received, and that I had validated the information, that I would be seizing their persons and the vehicle, yes.”

[Question]: And that information was conveyed to Mr. Betts before he gave the verbal consent at the car to go ahead and search his person.

[Trooper]: Yes.

¶ 7. The suppression hearing recessed, and after a lengthy hiatus, began anew some weeks later. The trooper then testified that he merely explained the options to Betts after he had already given consent, stating “I don't recall the search warrant. I did explain to him, like I said, the information obtained from the informant, and he immediately said that he was not in possession, there was no crack in the vehicle, and I could search his person.”

¶ 8. Defendant similarly described the critical portions of his initial encounter with the trooper, testifying that the trooper told him “if you don't consent, then we'll put you in cuffs, and we'll bring you to the barracks, and then we'll get a warrant.” Regardless of the specific content of their conversation, the trial court in its decision found that, at a minimum, the trooper “explained that if consent was not given, he would seize them and would be applying for a search warrant.”

¶ 9. The trooper brought defendant back to his cruiser to fill out paperwork to consent to a body search. Before entering the cruiser, defendant agreed to empty his pockets. The pocket-dump revealed nothing drug related, and defendant was allowed to place everything back in his pants. Once inside the cruiser, where the recorder was operating, the trooper explained what defendant would be consentingto. In particular, the trooper told defendant that they would go to the barracks because a strip search could not be conducted in the public parking lot and that defendant would be handcuffed during the trip to preserve any evidence. The trooper read the consent form to defendant and noted that although he believed he had probable cause, a judge would need to approve a warrant if defendant did not consent. The trooper handed defendant the consent form and asked him to sign, which he did.

¶ 10. The trooper placed defendant in handcuffs, drove him to the barracks, and left defendant inside before returning to his cruiser to retrieve the dash video. As the trooper approached his cruiser, he saw what later proved to be crack cocaine on the ground beside the passenger door. The trooper went back inside and read defendant his Miranda warning. Defendant waived his rights by signing a form, and then acknowledged that the crack was his and that he had come from Connecticut to purchase it.

¶ 11. Defendant moved to suppress the evidence and dismiss the charges, alleging that his consent was not voluntary. The trial court denied the motions after determining that the alleged motor-vehicle violations justified the initial stop and that defendant voluntarily consented to a search, which necessitated a trip to the police station. The trial court concluded that “the observed motor vehicle code violation provided an objectively reasonable basis for the initial stop” and that “the immediate request for a consent to search did not impermissibly expand the duration of the stop.” In analyzing the circumstances surrounding defendant's purported consent, the trial court focused exclusively on the recorded interaction between defendant and the trooper inside the patrol car, at which time the trooper “asserted his opinion that he would be able to obtain a warrant” but “qualified that statement by indicating that a judge would have to agree with him that probable cause existed.” The court omitted any discussion of its own finding that the officer had threatened to “seize” defendant pending a warrant application.

¶ 12. Defendant appeals, arguing that the trial court erred in failing to suppress the evidence because defendant's transportation to the police barracks was unsupported by either a valid consent to the search that necessitated the trip or by probable cause. We reverse.

I.

¶ 13. Absent voluntary consent, defendant's transportation to the police barracks in handcuffs for a full-body strip search would undoubtedly constitute an arrest, rather than a mere investigative detention. See State v. Pitts, 2009 VT 51, ¶ 7, 186 Vt. 71, 978 A.2d 14 (“A full-scale arrest or the functional equivalent (i.e., where the level of restraint has become too intrusive to be classified as an investigative detention) requires the highest level of justification—probable cause.” (quotations omitted)...