State v. Powers

• Decision Date: 14 October 2016
• Docket Number: No. 15-076,15-076
• Citation: 157 A.3d 39
• Parties: STATE of Vermont v. John POWERS
• Court: Vermont Supreme Court

157 A.3d 39

STATE of Vermont
v.
John POWERS

No. 15-076

Supreme Court of Vermont.

September Term, 2015
October 14, 2016

Christina Rainville, Bennington County Chief Deputy State's Attorney, Bennington, for Plaintiff-Appellant.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellee.

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William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Amicus Curiae Office of Attorney General.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

DOOLEY, J.

¶ 1. In this interlocutory appeal, the State challenges the trial court's suppression of two sets of statements that defendant made to his probation officer. The trial court determined that suppression was warranted because the probation officer did not provide defendant with the warnings required by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State argues that Miranda warnings were not required because defendant was not in custody at the time he made his incriminatory statements. We agree with the State with respect to the first set of statements and reverse the decision to suppress those statements; we reverse and remand the trial court's decision with respect to the second set of statements for further findings on the issue of custody and a new decision consistent with this opinion.

¶ 2. At the time of the alleged offense, defendant was on a community furlough under the supervision of the Vermont Department of Corrections (DOC) following a conviction for a forcible sexual assault on a thirteen-year-old girl. A probation officer supervised defendant on furlough from 2009 until his arrest in April 2014. During that period, the officer and defendant met approximately twice a week. Defendant was on the "highest level of supervision," such that probation officers were permitted to visit his residence at any time and inspect it for any violations of the special restrictions placed on sex offenders. Prior to this case, the probation officer investigated four alleged probation violations by defendant, including possession of pornography, peering into female neighbors' windows, and staring at nurses at his mother's convalescent center. In response, the probation officer imposed graduated sanctions in three instances and incarceration in one.

¶ 3. On April 3, 2014, a resident of defendant's apartment building phoned the probation officer to inform him that police officers were at the complex to investigate reports that defendant had drilled holes in a wall to view his teenaged neighbor in her bedroom in her family's apartment. The probation officer and another community correctional officer with the Bennington office of DOC went to defendant's residence to investigate. The probation officer carried no weapons; the other community correctional officer carried mace and wrist restraints. Upon their arrival, the officers observed a police car in front of the apartment next to defendant's unit. They knocked at defendant's back door. Defendant answered, and the officers told him they needed to enter the apartment to speak with him. Once they entered the apartment, the probation officer instructed defendant to sit down on the living room couch and asked the community correctional officer to go upstairs to see if there was any evidence of drilled holes in a wall. Neither officer placed defendant in restraints.

¶ 4. Thereafter, the probation officer began to question defendant, asking if anything was going on or if defendant wanted to report something. The probation officer did not mention the call he had received from defendant's neighbor. Although defendant "initially acted confused" and appeared "visibly nervous," the probation officer continued to ask if defendant needed to report anything until defendant finally responded "I screwed up; I think I screwed up." At that point, the community correctional officer returned and announced

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he had found holes in the wall of the upstairs bedroom. The probation officer asked defendant if he had made the holes, and defendant admitted that he had drilled them three days earlier. Defendant also admitted that he had been struggling with fantasies about his teenaged neighbor but denied that he masturbated while viewing her through the hole. The probation officer then went upstairs to view the holes, which had been covered with pictures and stuffed with toilet paper, and confirmed that it was possible to see into the girl's bedroom. After inspecting the holes, the probation officer returned downstairs to inform defendant he would be taken into custody and to place restraints on defendant's wrists. He then went to the apartment of the teenaged neighbor to speak with the police officer present. He informed the police officer of his presence in defendant's apartment and that he had placed defendant in custody. The police officer eventually came into defendant's apartment and took a videotaped confession from him.¹

¶ 5. After defendant spoke to the police officer, the probation officer transported defendant to the DOC office for processing, to be held under a charge that his behaviors constituted a violation of his furlough conditions. Defendant remained in wrist restraints until he arrived at the DOC office, at which point he was transferred into shackles and leg restraints. Defendant completed the necessary paperwork, and the probation officer took him outside to have a cigarette in the parking lot. They then returned to the DOC office, where DOC employees were continually coming in and out of the room in order to check schedules and obtain paperwork. The probation officer "started" a second conversation with defendant about the events that had transpired that day. During their conversation, defendant admitted that he had made the holes three months earlier, that he regularly fantasized about his neighbor, that he had seen her naked on three occasions and in her underwear over twenty times, and that he had masturbated while watching her. The probation officer estimated that approximately twenty to twenty-five minutes elapsed from the arrival at the DOC office to the conclusion of defendant's second set of statements, with their conversation about the offending behaviors occurring about ten minutes after their arrival. Following this statement, the probation officer called the police officer to come to the DOC office to interrogate defendant.

¶ 6. Defendant was charged with thirteen counts of voyeurism and one count of stalking. After a mistrial, defendant moved to suppress four sets of statements: two to the probation officer and two to the police officer. Following a December 2014 hearing, the court granted the motion. It found that the statements to the probation officer were inadmissible under State v. Steinhour , 158 Vt. 299, 302, 607 A.2d 888, 890 (1992), which it read to preclude the use of statements made by probationers to probation officers in a new criminal proceeding unless Miranda warnings were given. The court also found the statements and admissions to the police officer inadmissible because the officer's recitation of Miranda warnings was "woefully inadequate," rendering defendant's resulting waiver invalid.

¶ 7. This interlocutory appeal on the two sets of statements made to the probation officer followed. The State argues that the court's conclusion that a

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probation officer is obligated to give Miranda warnings when an interview might result in new criminal charges is legally wrong. It maintains that Miranda does not apply to either probation officer interview because defendant was not in police or coercive custody.

¶ 8. In reviewing a motion to suppress, we uphold the trial court's findings of fact absent clear error; we review the court's legal conclusions de novo. See State v. Simoneau , 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280. In determining whether an individual is in custody for Miranda purposes, the U.S. Supreme Court requires three discrete inquiries: first, an examination of the circumstances surrounding the interrogation, a purely factual inquiry; second, based on the facts found, an inquiry into whether a reasonable person under those circumstances would have felt free to terminate the interview and leave.² In recent cases, the Court added a third inquiry: whether the environment presents "the same inherently coercive pressures as the type of station house questioning at issue in Miranda ." Howes v. Fields , 565 U.S. 499, 132 S.Ct. 1181, 1190, 182 L.Ed.2d 17 (2012). Whether the facts meet the two latter standards is a question of law, which we review de novo. In re E.W. , 2015 VT 7, ¶ 9, 198 Vt. 311, 114 A.3d 112.

¶ 9. Before embarking on our analysis, we make one general observation. In our review of case law from other jurisdictions, the only decisions from courts throughout the country that have suppressed statements from defendants because a probation officer failed to give Miranda warnings to a defendant prior to the statement reached these decisions in situations where the defendant was incarcerated³ or handcuffed⁴ at the time of the statement. This

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is true regardless of whether the defendant was on probation, parole, or furlough, and...