State v. Peterson, 05-349.

Citation2007 VT 24,923 A.2d 585
Decision Date06 April 2007
Docket NumberNo. 05-349.,05-349.
PartiesSTATE of Vermont v. James PETERSON.
CourtUnited States State Supreme Court of Vermont

John T. Quinn, Addison County State's Attorney, and Christopher E. Perkett, Deputy State's Attorney, Middlebury, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Kelly Green, Appellate Defender, Montpelier, for Defendant-Appellant.

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

¶ 1. DOOLEY, J.

The issue in this case is the scope of the exclusionary rule in criminal cases, specifically, whether physical evidence obtained as a result of a violation of defendant's Miranda rights must be excluded at trial. We conclude that under the Vermont Constitution, Chapter I, Article 10, and the Vermont exclusionary rule, physical evidence obtained in violation of Miranda rights must be suppressed. We reverse in part and remand.

¶ 2. Defendant James Peterson appeals the denial of two suppression motions. Both involve a core set of undisputed facts. Defendant was looking for his girlfriend and drove his car next to a police vehicle so that he and the officer could speak out of their windows. Upon speaking to defendant, the officer smelled marijuana through the vehicle window. During the conversation, defendant admitted that he had been convicted of a drug offense and that he had a marijuana "roach" in his vehicle. The officer than asked defendant to exit the vehicle, which he did.

¶ 3. The officer patted defendant down; he found no weapons, but smelled the odor of marijuana emanating from the front pocket of defendant's sweatshirt. The officer patted the pocket and, feeling nothing, used his flashlight to look inside the pocket, where he saw green flakes of marijuana plant. When asked, defendant admitted he had picket the marijuana earlier that day from a plant or two he had at home for personal use. The officer then asked defendant for consent to search both his vehicle and his home; defendant consented to these searches both verbally and in writing. The written consent form identified defendant's residence to be searched as "3141 Jersey St. & property" in Panton, Vermont.

¶ 4. After searching defendant's vehicle and finding a burned marijuana cigarette as well as a blanket smelling of marijuana, the officer and a state police trooper proceeded to defendant's residence. Defendant was placed in handcuffs for protection of the police, but was advised by the officer that he was not under arrest. The handcuffs were removed upon arrival at defendant's residence and were intermittently taken on and off while the officers conducted the home search. During the home search, the officer located a garbage bag containing a significant amount of marijuana and marijuana paraphernalia. Defendant led the officers to one marijuana plant growing behind his house.

¶ 5. Upon completion of the home search, the officer informed defendant that they would proceed to the Vergennes Police Department for processing. He placed defendant in handcuffs and instructed him to walk in front of the officer. During the walk, the officer expressed that he doubted so much marijuana came from just one plant, and asked defendant whether he had other marijuana plants. He did not inform defendant of his Miranda rights. Defendant eventually admitted to the existence of other plants. The officer asked defendant to show him the other plants, and the two men walked through a wooded area with high brush to a plot where twenty-seven growing plants were located. The plot where the twenty-seven plants were growing is not on, nor visible from, defendant's property.

¶ 6. As a result of the search, the police charged defendant with felony possession of more than twenty-five plants of marijuana, 18 V.S.A. § 4230(a)(4), and felony possession of marijuana consisting of an aggregate weight of one pound or more. Id. § 4230(a)(3). Defendant moved to suppress "all evidence obtained by Vermont Law Enforcement Officials subsequent to his being taken into custody," asserting the officers in question violated his rights to be free from self-incrimination and unlawful search and seizure under both the Vermont and United States Constitutions. Defendant's primary argument was that the police had engaged in custodial interrogation, but failed to give defendant the required warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the finding of the twenty-seven marijuana plants was the result of the unwarned interrogation. The State responded primarily that the search was pursuant to defendant's consent.

¶ 7. Following the testimony and argument on the motion, the court sua sponte requested that the parties brief the impact of United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004). After receiving the additional briefing, the court denied defendant's motion to suppress, basing its denial on Patane. The court concluded that defendant was in custody at the time he was questioned about possible additional marijuana plants, and as such was entitled to Miranda warnings at that time prior to further interrogation. Since it was undisputed that the police did not give defendant Miranda warnings, the court held that any statements made after defendant was in custody were made in response to interrogation that violated Miranda. The court denied the motion to suppress the twenty-seven plants, however, under Patane, which held that physical evidence uncovered as a result of a Miranda violation need not be suppressed. Patane, 542 U.S. at 636, 124 S.Ct. 2620. The court rejected defendant's additional argument that Patane is not good law under the Vermont Constitution.

¶ 8. Following the decision, defendant entered into a conditional plea of guilty allowing him to appeal the denial of his motion to suppress. See V.R.Cr.P. 11(a)(2). Defendant raises two issues on appeal: (1) whether the search of defendant's pocket, vehicle, and home violated the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution; and (2) whether the twenty-seven marijuana plants must be suppressed.

¶ 9. We conclude that the first issue defendant seeks to raise is not before us. As we stated above, defendant's motion to suppress was limited to evidence obtained after defendant was taken into custody. The motion specifies that defendant was taken into custody after the police had searched his home and he led them to the one plant growing behind the house. He never challenged the search of his pocket, vehicle, or home in that motion. In an appeal based on a conditional plea, we are limited to review of the decision on the motion specified in the plea agreement. V.R.Cr.P. 11(a)(2). In this case, the motion did not include the first issue defendant seeks to raise on appeal.

¶ 10. Defendant nevertheless urges that we address the first issue because (1) the trial court never responded to defendant's suppression arguments, but instead redirected defendant's challenge to the applicability of Patane, or (2) as a matter of plain error. The first ground does not help defendant; his motion to suppress never challenged the search of the pocket, vehicle, or home, and the only evidence he sought to suppress was the twenty-seven marijuana plants. His second ground — that we should conduct plain error review — responds to his nonpreservation, but not to the scope of review on a conditional plea. As we stated, we are limited on review of a conditional plea to the motion specified in the plea agreement, here defendant's motion to suppress. Our conditional plea procedure is based on Federal Rule of Criminal Procedure 11. Reporter's Notes, V.R.Cr.P. 11. The decisions under the federal rule are clear that a defendant cannot raise appeal issues separate from the pretrial motion specified in the plea agreement. See 1A C. Wright, Federal Practice & Procedure § 175, at 238-39 (3d ed. 1999) (collecting cases). Thus, if the specified motion challenges one search, the defendant cannot challenge the validity of a separate search on appeal. United States v. Echegoyen, 799 F.2d 1271, 1275-76 (9th Cir.1986).

¶ 11. This leaves us solely with the second issue raised by defendant — the legality of the use of the twenty-seven marijuana plants as evidence. Although this issue is broadly stated, it has become relatively narrow because of the decision of the district court and the scope of the parties' argument. The State originally argued that the property on which the plants were found was within the scope of defendant's consent to search, but the district court found otherwise. The district court also found that defendant was in custody when he was interrogated about the location of other marijuana plants, and, therefore, the police violated Miranda in failing to give him the required warnings prior to the interrogation. Finally, the district court concluded that if the governing law was stated in Patane, the motion to suppress had to be denied. The parties have not challenged these findings and conclusions. Thus, the issue for us is narrowed to whether we will follow United States v. Patane under the Vermont Constitution.

¶ 12. Patane involved an arrest of a convicted felon for violating an abuse prevention order. 542 U.S. at 634, 124 S.Ct. 2620. Without completing Miranda warnings, the arresting officer asked the defendant whether he had a gun because gun possession was illegal for a felon, and there was a report that the defendant had a gun. Id. at 635, 124 S.Ct. 2620. Under persistent questioning, the defendant told the officer that he had a gun in his bedroom and gave permission to retrieve it. Id. When the defendant was charged with illegally possessing a firearm, he moved to suppress the gun as the fruit of a confession given as a result of a custodial interrogation without Miranda warnings. Id.

¶ 13. A majority of the United States Supreme Court concluded that the gun was admissible, but...

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