State v. Calabrese
| Decision Date | 29 October 2021 |
| Docket Number | 2020-079 |
| Citation | 2021 VT 76 A |
| Court | Vermont Supreme Court |
| Parties | State of Vermont v. Devan Calabrese |
On Appeal from Superior Court, Windham Unit, Criminal Division John R. Treadwell, J.
David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.
Allison N. Fulcher of Martin, Delaney & Ricci Law Group Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen JJ.
¶ 1. Defendant appeals his convictions for aggravated assault with a deadly weapon, unlawful possession of a firearm, and violation of conditions of release, arguing that the court committed reversible error in denying his motion to suppress evidence of a bullet on the ground at the site of the alleged crimes, and permitting the State to introduce evidence that he made certain racially charged statements. We conclude that the trial court applied the incorrect legal standard to the suppression question and remand for additional factfinding and a reassessment of the motion. With respect to the court's admission of evidence that defendant made statements evincing racial animus, we conclude that the trial court did not abuse its discretion in admitting the testimony. We thus reverse the trial court's ruling denying defendant's motion to suppress and remand for further proceedings.[1] ¶ 2. The State charged defendant in September 2019 with aggravated assault with a deadly weapon, reckless endangerment, unlawful possession of a firearm, and violation of conditions of release, in connection with an altercation in which he was alleged to have threatened another person with a handgun. The State's witness, Trooper Waitekus, testified in the suppression hearing that on August 29, 2019, three individuals came to the police station and gave sworn statements that during a conversation at defendant's girlfriend's home, defendant "pulled [a gun] on them and they were basically ordered off the property at gunpoint." One of the witnesses also reported that he saw and heard a bullet eject out of the side of the gun when defendant cocked it.
¶ 3. Later that night, Trooper Waitekus spoke with defendant's girlfriend at her home where the incident was reported to have taken place. The trooper also requested to look around the property and did so. On cross-examination, he testified that he "d[id] not remember how thoroughly [the officers] checked the lawn for [the bullet]," and that their focus was on looking for defendant. The trooper then went to defendant's address, which his girlfriend provided, but did not find defendant there. The next day, the trooper spoke with defendant's friend who was also present during the altercation. Defendant, defendant's girlfriend, and defendant's friend each gave sworn statements that there was no weapon drawn during the altercation.
¶ 4. Two days later, Trooper Waitekus was dispatched to the girlfriend's home for a welfare check. Trooper Waitekus testified that he contacted the girlfriend's father, who was his electrician, in an attempt to locate the girlfriend, and the father offered to meet him at the girlfriend's house to check on her. The trooper stated that he "was alone at the time," and thought it was "probably good to bring a second person in this situation." The two met in the girlfriend's driveway after dark. The trooper knocked on the door, and when there was no response, he walked through an unlocked door. He testified that he proceeded to look for other people in the house, "breezed over the kitchen table to see if there w[ere] any notes" from the girlfriend indicating she was in trouble, and left after he "saw nothing . . . out of the ordinary."
¶ 5. Trooper Waitekus and the girlfriend's father left through the garage door. The trooper testified, [2] He also testified, "it was in my head to keep my eyes open [for the bullet]." According to the trooper, he was standing "on the edge of the driveway about . . . halfway between the house and the road" when he saw the bullet. When the defense asked whether he was shining a flashlight on the side of the lawn next to the driveway to look for the bullet, the trooper stated, "I would say that'd be highly possible, yes." He further testified, In response to the State's question as to whether the bullet was "in plain view," the Trooper responded, "Yes." When he saw the bullet, he said to the girlfriend's father, "oh, my God . . . don't move," and went to get his camera from his car. At the hearing on defendant's motion to suppress, the trooper conceded that in the photo he took, both ends of the bullet are partly obscured by grass. I. Motion to Suppress
¶ 6. Prior to trial, defendant moved to suppress the 9mm bullet recovered from defendant's girlfriend's yard, which the State sought to introduce as evidence. Specifically, defendant argued that the exclusionary rule applied because the trooper violated defendant's rights under Article 11 in conducting a warrantless search for the bullet on the girlfriend's property.
¶ 7. The trial court denied the motion. Citing a recent decision of this Court in State v. Bovat, 2019 VT 81, 211 Vt. 301, 224 A.3d 103, the trial court concluded that the trooper did not conduct a search at all because the driveway-as a "normal access route for anyone visiting"- was, at most, a semiprivate location. If state officials limit their movement to semiprivate areas to conduct their investigation, the court concluded, observations made from those points are not covered under the Fourth Amendment. The court thus concluded that the trooper was lawfully present in defendant's girlfriend's driveway when he observed the bullet and that there had been no steps taken to indicate that strangers were not welcome on the driveway.
¶ 8. On appeal from his conviction following a jury trial, defendant contends the trial court erred in denying his motion to suppress. As a threshold matter, we reject the State's argument that defendant lacks standing. On the merits, we conclude that the trial court denied defendant's motion to suppress on an erroneous basis. When the proper legal standard is applied, the record does not compel a conclusion that the trooper's search was either lawful or unlawful as a matter of law. Therefore, we reverse the suppression order and remand for further findings and analysis. A. Standing
¶ 9. The State argues that defendant lacks standing to argue that the trooper's recovery of the bullet from the ground next to defendant's girlfriend's driveway violated Article 11.[3]
¶ 10. Article 11 of the Vermont Constitution provides specifically that "the people have a right to hold themselves, their houses, papers, and possessions free from search or seizure." Whether defendant has standing to challenge the trooper's search is a question of law that we review without deference to the trial court. Baird v. City of Burlington, 2016 VT 6, ¶ 11, 201 Vt. 112, 136 A.3d 223.
¶ 11. Consistent with our Article 11 case law more generally, this Court has established a test for standing to assert an Article 11 violation that is more expansive than the federal test for standing to challenge a violation of the Fourth Amendment. In determining the contours of that test, we consider our own case law and also look for guidance to decisions from our sister state that applies a similar standing test. Applying our test, we conclude that defendant here has a "participatory" interest in the bullet used as evidence against him in his trial for the crime for which he is charged, and thus has standing to assert an Article 11 violation.
¶ 12. Vermont parts ways from the federal test for standing to challenge a government search. The federal test requires that an individual have a "legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143 (1978). This Court has declined to adopt the federal test on the ground that it is incompatible with the plain meaning and historic purpose of Article 11. State v. Wood, 148 Vt. 479, 482, 536 A.2d 902, 904 (1987). In Wood, we emphasized that Article 11 plays a crucial role in giving authority to the judiciary to protect the people from unlawful searches and seizures, "which are the means historically relied upon by a government seeking to impose its will upon a reluctant people," and we recognized that the courts apply this legal check every time they scrutinize a search in ruling on a motion to suppress. Id. at 488-89, 536 A.2d at 908. We observed that the federal test as redefined in Rakas, "curtails th[e] function of the judiciary by focusing on the defendant's ability to present a challenge rather than on the challenge itself, and by unduly limiting the class of defendants who may invoke the right to be free from unlawful searches and seizures." Id. at 489, 536 A.2d at 907-08; see also id. at 489 n.7, 536 A.2d at 908 n.7 ( that federal test does not promote restraint of officer discretion in field through use of search warrants).
¶ 13. We concluded that Article 11 "premises the protected right upon an objectively defined relationship between a person and the item seized or place searched, as opposed to a subjective evaluation of the legitimacy of the person's expectation of privacy in the area searched." Id. at 489, 536 A.2d at 908. To establish standing under Article 11, "a defendant need only assert a possessory, proprietary or participatory interest in the item seized or the area searched." Id. (...
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