State v. Pitts, 07-077.

• Citation: 2009 VT 51,978 A.2d 14
• Decision Date: 22 May 2009
• Docket Number: No. 07-219.,No. 07-077.,07-077.,07-219.
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. Yosef E. PITTS. State of Vermont v. Sequoya Pitts.

978 A.2d 14

2009 VT 51

STATE of Vermont v. Yosef E. PITTS.

State of Vermont v. Sequoya Pitts.

No. 07-077.

No. 07-219.

Supreme Court of Vermont.

May 22, 2009.

Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Anna Saxman, Deputy Defender General, Montpelier, and Alison Arms, Office of the Public Defender, Burlington, for Defendant-Appellant

Sequoya Pitts, and Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant Yosef Pitts.

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

¶ 1. REIBER, C.J.

Defendants Yosef and Sequoya Pitts appeal from judgments of conviction, entered upon conditional plea agreements, for possession of illegal substances. Each claims that the trial court erroneously denied a motion to suppress based on an illegal search of Yosef's person and Sequoya's home.¹ We affirm in part and reverse in part.

¶ 2. The facts as revealed by the trial record and the court's findings may be summarized as follows. In late December 2005, two South Burlington police officers served a subpoena on an individual in connection with a major drug distribution case. The police had information that the individual in question had sold drugs from a white Jeep, accompanied by an Hispanic male from New York. While serving the subpoena, the officers observed a male who appeared to be Hispanic in the apartment. The individual appeared to be nervous about the officers' presence, and had a New York accent. He identified himself to the officers as defendant Yosef Pitts. After serving the subpoena, the officers waited outside the apartment, observed Yosef enter a taxi, and decided to follow. The officers called the taxi dispatcher and were informed that the taxi was going to an address on Henry Street in Burlington and that the taxi made the same run to the same address several times a day. This aroused the officers' suspicions further because drug dealers routinely use taxis to avoid detection.

¶ 3. As Yosef exited the taxi, the officers approached and asked if they could speak with him. One of the officers also asked the driver for permission to search the taxi for anything Yosef might have left inside. Yosef agreed to talk, and an officer asked him where he was going. He responded with the address on Henry Street. The officer inquired as to whether he had any identification; Yosef gave his name and further explained that he was from New York but had been living in Vermont with his sister. The officer then asked if he had any weapons on him. According to the officer. Yosef told him "I have a knife in my pocket, here," and the officer then "took the knife off [Yosef], and ... patted him down for weapons." During the pat-down search the officer felt a "big wad of cash" and asked Yosef how much was there: Yosef indicated several hundred dollars. The officer then asked Yosef if he had any drugs on him. Yosef indicated that he had "a little weed" in his pocket. The officer testified that Yosef "guided" him to the location of the drugs, which the officer then removed, revealing about two grams of marijuana. The officer indicated that he then obtained consent to a complete search of Yosef's person. When they were done, the officers placed Yosef in their cruiser and approached the house on Henry Street. The officer testified, and the court found, that their purpose in going to the house was "to corroborate Mr. Pitts' identity and see if there was drug use or drug dealing within the residence."

¶ 4. Yosef's sister, Sequoya, answered the door. After confirming her identity, the officers informed Sequoya that they had Yosef outside, that he had been coming to see her, and that they had taken a large amount of money and some marijuana from him. The officers sought and received permission to enter the house, where they observed what appeared to be a marijuana roach on a dresser in the living room. An officer then asked for permission to search the house, explaining that he could apply for a warrant but that it would take several hours and require leaving an officer at the scene. Sequoya was concerned about the effect of the search on her son, who would soon be returning from school, and signed a consent form allowing the search. Among other items, a search of the house revealed additional marijuana, cocaine, and assorted drug-related paraphernalia. Both defendants were subsequently charged with possession of illegal substances.

¶ 5. Yosef and Sequoya filed separate motions to suppress the drugs and other evidence taken from the searches. Yosef claimed that he was effectively seized without reasonable suspicion or probable cause during the encounter outside his sister's residence, and that all of the evidence elicited as a result of the illegal seizure must therefore be suppressed. He also claimed that his consent to the search of his person was in response to a "claim of lawful authority" and therefore involuntary. Sequoya similarly claimed that Yosef had been illegally detained without reasonable suspicion of wrongdoing, and that the illegal detention had tainted all of the evidence subsequently seized from her residence. She further asserted that her consent to the officers' search of the residence was involuntary. Following a joint hearing, the trial court issued separate written decisions. As to Yosef, the court concluded that the encounter with the officers was consensual and did not rise to the level of a seizure requiring reasonable suspicion of wrongdoing, and further concluded that Yosef had voluntarily consented to the search of his person, finding that there was "no evidence of physical or psychological coercion forcing Mr. Pitts to consent to the search." As to Sequoya, the court concluded that she lacked standing to challenge the stop and search of her brother, and that she voluntarily consented to the officers' entry and search of her home. Accordingly, the court denied the motions. Both defendants thereafter entered conditional pleas, reserving the right to challenge the court's rulings on appeal.

I.

¶ 6. In reviewing a motion to suppress, we apply a de novo standard to the trial court's legal conclusions and a clear-error standard to its factual findings. State v. Lawrence, 2003 VT 68, ¶ 9, 175 Vt. 600, 834 A.2d 10 (mem.). Yosef contends that he was effectively seized during the encounter with the police outside his sister's home; that the police lacked reasonable suspicion to justify the seizure; and that the illegality vitiated any subsequent consent to the search of his person. The claim requires us to determine at what point, if any, during the encounter with the police Yosef's right to be free from unreasonable search and seizure was implicated.

¶ 7. In balancing the individual's right to privacy against the state's interest in crime prevention and detection, courts—including our own—have distinguished various types of interactions between citizens and the police based on the degree of police intrusion and the concomitant level of justification required. Both the United States Supreme Court and this Court have recognized that a seizure does not occur when an officer merely approaches an individual and asks certain questions, and therefore no minimal level of suspicion of wrongdoing is necessary. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); State v. Sprague, 2003 VT 20, ¶ 26, 175 Vt. 123, 824 A.2d 539. The next level of intrusion occurs when a police officer has reasonable and articulable grounds to suspect that an individual is engaged in criminal activity. In these circumstances, the officer may briefly detain the individual to investigate the circumstances that gave rise to the suspicion, while ensuring that the detention is "reasonably related in scope" to the circumstances that justified it. Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Ford, 2007 VT 107, ¶ 4, 182 Vt. 421, 940 A.2d 687 ("Under both the Vermont and the United States Constitutions, we have recognized that a brief detention, its scope reasonably related to the justification for the stop and inquiry, is permitted in order to investigate the circumstances that provoked the suspicion." (quotation omitted)). 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" to believe that a crime has been committed. State v. Chapman, 173 Vt. 400, 403, 800 A.2d 446, 449 (2002).

¶ 8. The point at which mere questioning or "field inquiry" becomes a detention requiring some level of objective justification is not susceptible of precise definition. In Terry, the Supreme Court held that a seizure occurs "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." 392 U.S. at 19 n. 16, 88 S.Ct. 1868. The oft-stated standard for deciding this question is "whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." Bostick, 501 U.S. at 436, 111 S.Ct. 2382; see also United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (a seizure has occurred "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave"); State v. Paquette, 151 Vt. 631, 634, 563 A.2d 632, 635 (1989) ("A Terry seizure occurs when ... `a reasonable person would have believed he was not free to leave if he had not responded....'") (quoting State v. Kettlewell, 149 Vt. 331, 335, 544 A.2d 591, 593 (1987)). As the high court has observed, however, there is no "litmus-paper test for distinguishing a consensual encounter from a...