State v. Sole

• Decision Date: 27 February 2009
• Docket Number: No. 07-415.,07-415.
• Citation: 974 A.2d 587,2009 VT 24
• Parties: STATE of Vermont v. Jonathan SOLE.
• Court: Vermont Supreme Court

974 A.2d 587

2009 VT 24

STATE of Vermont v. Jonathan SOLE.

No. 07-415.

Supreme Court of Vermont.

February 27, 2009.

Motion for Reargument Denied March 27, 2009.

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

William A. Nelson, Middlebury, for Defendant-Appellant.

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

¶ 1. BURGESS, J.

Defendant entered a conditional plea of guilty to cocaine and marijuana possession after the district court denied his motion to suppress. He appeals the denial of his suppression motion here. Defendant sought to suppress statements and physical evidence gathered by a state trooper after the trooper stopped defendant for speeding, directed him into the police cruiser and questioned him about the smell of marijuana in his car, then conducted what the State maintains was a consensual search of defendant's car and his passenger's backpack. We reverse the district court's decision with respect to the statements defendant made and the physical evidence he produced in the cruiser, but affirm with respect to the search of the vehicle and the passenger's luggage.

¶ 2. Based on the district court's findings, together with the in-cruiser audio-video record of the stop as presented to the court, the relevant background is as follows. In February 2006, defendant and his passenger were traveling south on Interstate 89 near Sharon, Vermont, when a state trooper stopped defendant for traveling at a speed of ninety-five miles per hour. When the trooper approached the vehicle's open window to question defendant, the trooper noticed a strong odor of raw marijuana in the vehicle. The trooper testified that he asked defendant to exit the vehicle and sit in the police cruiser due both to the excessiveness of defendant's speed and the smell of marijuana. The trooper did not mention the marijuana smell to defendant at this time.

¶ 3. Inside the cruiser, while he processed defendant's speeding violation, the trooper informed defendant that he could arrest defendant for such an excessive speed, but, instead, would just issue a citation. Defendant expressed relief and gratitude that the trooper was giving him "a break," but this break was short-lived. Once the ticket was written, the trooper told defendant he would not be released until the trooper determined if there was anything illegal in the car. Defendant asked if the trooper would need to search the car, and the trooper replied that he smelled marijuana in the car and asked if defendant would mind if he "took a look." When defendant asked if he had to let him search, the trooper responded. "Yeah, if there's a little bit, I can deal with it." The trooper then asked defendant if he had marijuana on his person, and in response, defendant produced some from his pocket and handed it to the trooper.

¶ 4. At this point, the trooper called on his radio for a second car to assist at the scene. The trooper then asked defendant several more questions regarding marijuana, including whether he had smoked any marijuana before he started driving. Defendant responded that he had, adding, "Now I'm definitely going down with you, huh?" The trooper told him he would still "see what [he could] deal with" and that he needed the back-up police to attend "because of the search of the car."

¶ 5. The trooper asked defendant again for consent to search the vehicle, and produced a consent form for defendant to sign. The trooper read the consent form to defendant, including the standardized text advising that the signer "freely" gives permission to the police officer "to conduct a complete search" of the vehicle and "its contents ... under [his] control." The form also states that the signer understands that he "[does] not have to allow this" and that "[n]o threats or promises have forced this consent."

¶ 6. Told again that he could not be forced to let the trooper into the car, defendant was reluctant to agree, and asked for confirmation that the trooper could not search if defendant did not sign the form. The trooper responded that he had reason to believe there was contraband in the car and that he could get a search warrant if defendant did not sign. The trooper explained, "The choice is yours. It's totally up to you." Assuring defendant that his property would not be thrown to the side of the road, the trooper repeated that he would not go into the car without defendant's consent. The trooper added, "The other alternative is this—I can tow your car, I'm going to apply for a warrant, okay, it takes a little bit of time." At this point, defendant agreed to sign the consent form. The district court found the trooper was polite and pleasant throughout this entire exchange, although insistent on the search.

¶ 7. In the ensuing search, the trooper discovered a plastic bag containing marijuana inside a slightly opened backpack located in the passenger compartment of the vehicle. Defendant previously had informed the trooper that the backpack belonged to his passenger. When the trooper pulled the backpack out of the vehicle, the passenger confirmed that the backpack was his. The trooper asked if there was anything else in the backpack, and the passenger answered that the same backpack also contained a bag of cocaine. At the trooper's direction, the passenger pulled the cocaine from the backpack. The trooper then arrested defendant and the passenger and transported them to the local state police barracks.

¶ 8. Both men were charged with possession of the approximately 83 grams of marijuana and 102 grams of cocaine found in the passenger's backpack. Defendant and the passenger were represented by separate attorneys and filed separate motions to suppress the physical evidence and statements obtained during the traffic stop and the search. Each defendant also joined the motion filed by the other. After a joint hearing, the district court granted the passenger's motion because the trooper knew that passenger had not consented to the search of his backpack, but denied defendant's motion to suppress since he voluntarily consented to the search of his vehicle and its contents.

¶ 9. On appeal, defendant raises four issues. First, whether his admission of marijuana use and production of marijuana from his pocket are the products of a custodial interrogation conducted without the warnings guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Second, whether defendant's consent to the search of his vehicle was tainted by the prior illegality of the unwarned custodial interrogation, and therefore involuntary. Third, whether his consent to search was voluntary given the totality of the circumstances. Finally, whether the district court erred in holding that the evidence seized from the backpack could properly be used against defendant on the basis that defendant had consented to the search. The fourth point was not properly preserved; therefore, we do not reach the merits of that claim. As to the first three points, we agree that the trooper subjected defendant to an unwarned custodial interrogation. Nonetheless, we hold that defendant's consent to search his car was independently voluntary.

I. Unpreserved Argument: Defendant's Consent to Backpack Search

¶ 10. We begin by addressing defendant's fourth argument, which was not particularly raised in defendant's presentation below in support of his own motion to suppress, and was only peripherally touched upon in connection with the passenger's suppression motion. Defendant now argues that the evidence taken from the backpack should have been suppressed against him because he could not give the trooper valid consent to search the passenger's backpack. Defendant contends that his consent to the vehicle search could not extend to his passenger's backpack because it did not belong to defendant and was not under his control. Additionally, defendant argues that the passenger never consented to the search, so the trooper's warrantless search of the backpack without the passenger's consent was invalid.

¶ 11. The district court relied on the above-described reasoning to grant the passenger's motion to suppress the evidence gathered from the backpack, but the court did not extend that rationale to defendant. Instead, the district court held that defendant consented to the search because he voluntarily signed the consent form. As recited earlier, the consent form included defendant's vehicle and "its contents ... under [his] control." Defendant never argued, and the court never addressed, the issue of whether the backpack was, or was not, under defendant's control, or whether defendant's consent did, or did not, extend to his passenger's backpack when it was contained within defendant's automobile. Defendant contends this was error because the reasoning supporting the court's decision to grant the passenger's suppression motion applies equally to him.

¶ 12. The State counters that defendant did not argue this point below and that it is not preserved on appeal. We note that defendant's position raises potentially intricate questions concerning the degree of control or dominion over the backpack, or the lack thereof, necessary for a consent by defendant to its search to be valid against him, if not against his passenger. Assuming the automatic standing claimed by defendant to argue the point, the point was not made before the trial court.

¶ 13. Arguments that are "neither litigated nor decided below will not be addressed for the first time on appeal." State v. Sprague, 2003 VT 20, ¶ 11, 175 Vt. 123, 824 A.2d 539 (quotation omitted). The preservation rule exists so that the trial court can address any correctable errors before they are presented here, and develop an adequate record for any appeal. State v. Wool, 162 Vt. 342, 346, 648 A.2d 655, 658 (1994). Defendant's argument is unpreserved because his written...