State v. Sprague, No. 02-028.

• Docket Nº: No. 02-028.
• Citation: 824 A.2d 539
• Case Date: February 21, 2003
• Court: United States State Supreme Court of Vermont

824 A.2d 539

STATE of Vermont
v.
Jonathan L. SPRAGUE

No. 02-028.

Supreme Court of Vermont.

February 21, 2003.

824 A.2d 541

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee

Matthew F. Valerio, Defender General, and Victoria Cherney, Appellate Attorney, Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE¹, JOHNSON and SKOGLUND, JJ.

¶ 1. SKOGLUND, J.

The questions we address in this appeal are whether a reasonable person in defendant's position would have felt free to refuse a state trooper's request that he exit his vehicle, and whether a police officer may automatically order a driver to exit a vehicle following a routine traffic stop. We hold that the record evidence here did not support a finding that defendant voluntarily exited his vehicle. We further hold that a police officer must have a reasonable basis to believe that the officer's safety, or the safety of others, is at risk or that a crime has been committed before ordering a driver out of a stopped vehicle. Finding no basis for the exit order in the circumstances of this case involving a routine traffic stop for a speeding violation, we conclude that the trial court erred in denying defendant's motion to suppress and therefore that the judgment must be reversed.

¶ 2. The record evidence reveals the following. On October 3, 2000, at approximately 3:30 p.m., a state trooper operating a radar device on Route 91 in the Town of Rockingham clocked a vehicle traveling at a rate of seventy-nine miles per hour. Nothing in the record suggests that the officer observed any indicia of drunk driving, or any other offense or traffic violation, other than speeding. The trooper followed the car in his cruiser, activated his blue lights, and parked behind the car after it had stopped on the paved shoulder of the highway. A police videotape of the

824 A.2d 542

events that followed, which was also transcribed, shows that the uniformed officer approached the driver's side of the car and asked the driver, "can I see your license and registration, please?" The driver, later identified as defendant, handed these to the officer through the car window. The officer asked defendant several additional questions concerning the reason for the stop, and defendant indicated that he was running late to pick up his son. The officer then said, "you mind having a seat in my car while I check your license, please?" Defendant, in response, exited the vehicle and started walking with the officer toward the police cruiser

¶ 3. As they approached the cruiser, the officer asked defendant whether he had "any weapons, knives, sharp anything like that in your pocket? Would you mind showing me what you have, quick, before you get in my car?" Defendant thereupon emptied his pockets, revealing a small packet which, in response to additional questioning, he acknowledged contained marijuana. Under further questioning, defendant also acknowledged that he possessed "a pipe and bag." The officer proceeded to pat down defendant, found a prescription bottle which defendant indicated was for "panic attacks," and entered the cruiser with defendant. Once inside, the officer questioned defendant further about his marijuana use, work, and other subjects. At one point, the officer reassured defendant, "you're not going to end up in jail; you're going to drive away from here, okay?"

¶ 4. After several minutes, the officer completed writing up the ticket, returned defendant's license, and announced, "Okay, this's done and over with, Jon." The officer then indicated that he wanted to "just take a quick peek in the car," and addressed defendant as follows:

What I'm going to do is just—from this point forward, Jon, it behooves you to be a hundred percent honest with me, okay? I'm not going to pull any fast ones with you or anything like that, I'm an up-front kind of guy. Okay?

What I want to do is take a peek at what you have in the vehicle, okay? And I wouldn't mind going to your house and taking a peek there, okay? Because based on what we've discovered right now, is people who smoke dope carry dope with you and they have dope at their house; okay?

Now, I can go the short route, or we can go the long route; okay. It's entirely up to you. But what I want to do is I just want to tell you everything now, okay; so you fully understand everything.

You got a little bit more dope at the house?

¶ 5. Defendant, responded, "A tiny bit, not much." The officer reassured defendant that he wasn't looking "to tear your place apart or anything like that," and had defendant sign a consent form for the search of his vehicle and home, explaining that "[e]ssentially this is just for your protection; okay?" After a search of the car, defendant drove home followed by the officer and another trooper. A search of the home revealed several marijuana plants.

¶ 6. Defendant was charged with possession of two ounces or more of marijuana, in violation of 18 V.S.A. § 4230(a)(2). He moved to suppress the evidence, arguing that the searches of his pockets, car and home were nonconsensual. In a supplemental memorandum, he argued for suppression on the additional ground that any questioning beyond the traffic stop should have been preceded by Miranda warnings. Following a hearing, the court issued a written decision, denying the motion. The court ruled that defendant had validly consented

824 A.2d 543

to the search of his pockets, car and home, and that Miranda warnings were not required because defendant was never in custody during the incident

¶ 7. The public defender later substituted for defendant's retained attorney, and filed a new motion to suppress, together with a cover letter from successor counsel. The letter stated that the new motion had been filed "to ensure that all issues have been raised and are preserved for appeal," and that the State and defendant had agreed to have the motion decided based on the record of the prior hearing, including the testimony and videotape previously admitted into evidence. In the event that the court denied the motion, the letter stated that the parties had agreed to a conditional plea, under terms previously reviewed by the court.

¶ 8. In addition to the arguments previously raised, the new motion asserted that defendant had not freely exited his vehicle, that the "request" that he exit constituted a further seizure requiring reasonable suspicion of criminal activity under Chapter I, Article 11 of the Vermont Constitution, and that all evidence subsequently seized was tainted by the initial illegality and should be suppressed. In its response, the State noted that the court had previously decided all of the issues raised with the exception of the question whether defendant had properly exited the car, which it characterized as "the only issue now open for review by this Court." As to this issue, the State asserted that defendant had voluntarily consented to leave his vehicle, and that suppression was therefore unwarranted.

¶ 9. The court later issued a written decision, denying the new motion to suppress. The court observed that the claims relating to the propriety of defendant's exit from the vehicle had been waived by his failure to raise them in the initial suppression motion. Nevertheless, the court went on to state that it had reviewed the new claims on the merits and had concluded that the evidence and law did not support defendant's assertion that his decision to exit the vehicle was involuntary, or his argument that the officer's request to exit was improper. This appeal followed.

I.

¶ 10. Defendant renews on appeal the claims raised below in the successive motions to suppress. The State raises a procedural bar at the threshold, however, arguing that the issues relating to defendant's exit from the vehicle were not preserved for review because defendant failed to raise them in the first suppression motion.

¶ 11. It is well settled that "absent plain error, issues neither litigated nor decided below will not be addressed for the first time on appeal." State v. Parker, 155 Vt. 650, 651, 583 A.2d 1275, 1276 (1990) (mem.). The record here, however, shows that the State agreed that defendant could raise the issues which it now claims are barred "to ensure that all issues have been raised and are preserved for appeal," acknowledged in its opposition to the new motion that the issues remained open to review, and addressed the legal and factual merits of the claims. The trial court, moreover, indicated that it had reviewed the arguments, and rejected them on the merits, albeit after indicating that they had been waived. Both parties have now fully briefed the issues to this Court, as well.

¶ 12. In these circumstances, we find that the basic purposes underlying the preservation rule would not be served by declining to address defendant's arguments. The parties had a full and fair opportunity to litigate the issues, the court addressed them on the merits, and the

824 A.2d 544

record is more than ample for purposes of affording meaningful appellate review. See In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270-71 (2001) ("purpose of the preservation rule is to ensure that the original forum is given an opportunity to rule on an issue prior to our review"); State v. Wool, 162 Vt. 342, 346, 648 A.2d 655, 658 (1994) (preservation rule facilitates development of adequate record for appeal). Coupled with the fact that defendant's claims implicate fundamental constitutional rights, these several considerations persuade us that appellate review is necessary and proper. See State v. Kinney, 171 Vt. 239, 253, 762 A.2d 833, 844 (2000) (despite failure to preserve issue for appeal, we may review claim for plain error where it strikes at heart of defendant's constitutional rights).

II.

¶ 13. Although defendant's claims are explicitly grounded in state constitutional and decisional law,...