State v. Stevens

• Citation: 848 A.2d 330
• Decision Date: 10 March 2004
• Docket Number: No. 02-447.,02-447.
• Parties: STATE of Vermont v. Peggy A. STEVENS.
• Court: United States State Supreme Court of Vermont

848 A.2d 330

STATE of Vermont v. Peggy A. STEVENS.

No. 02-447.

Supreme Court of Vermont.

March 10, 2004.

Motion for Reargument Denied April 1, 2004.

Present: AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

ENTRY ORDER

¶ 1. Defendant Peggy Stevens appeals an order from the Windsor District Court denying her motion to suppress evidence of the condition of animals seized pursuant to 13 V.S.A. § 354(b)(3). The court found that defendant consented to the search of the animals and, in any event, the search and seizure was justified by exigent circumstances. The court also found that defendant failed to timely seek waiver of a requirement to post security to avoid forfeiture of the animals. We conclude that the search was consensual and that defendant waived her opportunity for the animals to be held in custodial care, and affirm.

¶ 2. There is no dispute about the underlying facts. On August 7, 2001, a neighbor was passing by defendant's home. It was an extremely hot day, and the neighbor was aware that defendant kept numerous animals in a kennel-like structure on her property. Concerned that the animals were overheating, he decided to check the kennel. When he inspected the kennel, he found the windows nearly closed and the one fan he could see inoperative, and he heard the animals whimpering. He promptly called the Bethel State Police.

¶ 3. Sergeant Jocelyn Stohl and Trooper Peter Gravaltis responded to the call. Sergeant Stohl introduced herself and explained she was there to check the animals. Appellant stated she knew the police would be coming by, and Stohl responded, "then it shouldn't be a problem." Defendant then went into her house, retrieved the kennel key, and unlocked the door. At no time did Stohl inform defendant she could refuse the inspection, nor did Stohl obtain verbal or written consent to enter the kennel.

¶ 4. Inside the kennel, Stohl found nineteen animals. Most of the kennel windows were closed, the fans inside the kennel provided limited air circulation, a strong ammonia smell filled the air, and the outside temperature exceeded ninety degrees. The animals were panting, and the cats and small dogs could not reach their water. After checking the kennel, Stohl asked defendant if there were additional animals inside defendant's home. Defendant told Stohl there were, and Stohl asked if she could see them. Inside defendant's home, Stohl found twenty-four animals kept in padlocked cages in a small room. No windows were open, no fans were inside, many of the animals were without water, the cages were dirty, and a heavy ammonia odor was present.

¶ 5. After her inspection of defendant's kennel and home, Stohl determined the animals required protective custody. Pursuant to 13 V.S.A. § 354(b)(3) (an officer who determines an animal's life is in jeopardy may seize the animal without a warrant), Stohl removed most of defendant's animals. Two days later, Stohl returned to defendant's home with a search warrant and seized the remaining animals.

¶ 6. Defendant was charged with six counts of cruelty to animals under 13 V.S.A. § 352(4). The State then moved under § 354(d) "for an order requiring [defendant] to forfeit any and all rights in the animal[s] prior to final disposition of the criminal charge." Pursuant to State's motion, a hearing was held in the Windsor District Court. At the hearing, defendant opposed the State's motion arguing that Stohl's initial search of her kennel was in contravention of her Fourth Amendment rights. Specifically, defendant argued that this was a warrantless search and none of the exceptions to the warrant requirement applied because defendant did not consent to the search and Stohl did not act pursuant to emergency circumstances. Consequently, defendant contended that all evidence of the animals should be suppressed as derivative of the initial illegal search and her animals should be returned.

¶ 7. The district court denied defendant's motion to suppress, finding both that defendant consented to the search and that Stohl acted under emergency circumstances. Accordingly, the court granted the State's motion and ordered that defendant forfeit the animals. Under 13 V.S.A. § 354(f), if a criminal defendant posts a $30.00 per animal security deposit within forty-eight hours after the hearing, the seized animals will remain in custodial care until the disposition of the criminal charges. This requirement can be waived by the court for good cause shown, but if the requirement is not waived and the security deposit is not paid, the court, upon motion by the State, must order the animals immediately forfeited. Id. ¶ 8. In this case, defendant filed a motion to waive the security deposit requirement six days after the district court's decision was issued. The district court denied defendant's motion as untimely, found there was no good cause for defendant's failure to pay the security deposit, and ordered the animals immediately forfeited. Following a jury trial, defendant was acquitted on all six counts of cruelty to animals.¹ This appeal followed.

¶ 9. In this appeal, defendant argues that the district court erred because: (1) defendant did not consent to the initial search; (2) Stohl did not act pursuant to emergency circumstances; and (3) defendant's motion to waive the security deposit was timely. Because defendant's counsel conceded at oral argument that the motion to waive the security deposit was untimely, we address the third issue only summarily.

¶ 10. Recently, in State v. Lawrence, 2003 VT 68, ¶ 9, 175 Vt. ___, 834 A.2d 10 (mem.), we explicitly adopted a two-step approach for reviewing appeals from denials or grants of motions to suppress: "[W]e will apply a clearly erroneous standard to the trial court's underlying historical facts, while reviewing the ultimate legal conclusion ... de novo." We employ the Lawrence standard in considering the issues before us.

¶ 11. The State grounds the validity of the search of the kennel and house first on defendant's consent. "[T]he inquiry in a consent search context is restricted to whether the consent was voluntary, not whether there was a `knowing' and `intelligent' waiver of a constitutional right." State v. Zaccaro, 154 Vt. 83, 88, 574 A.2d 1256, 1259 (1990) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 241-42, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Voluntariness is a question of fact, and the totality of the circumstances are considered when determining whether consent was freely given. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041; State v. Sheehan, 171 Vt. 642, 643, 768 A.2d 1275, 1277 (2000) (mem.).

¶ 12. Defendant makes three main arguments why there was no consent in this case: the officer never requested consent to search so that defendant was acting in response to an assertion of lawful authority; defendant never affirmatively gave consent; and the officer failed to inform her of her right to refuse consent. As to her first argument, we recognize that granting access in "submission to a claim of lawful authority" is not consent. State v. Sprague, 2003 VT 20, ¶ 23, 175 Vt. 123, 824 A.2d 539. Here, however, there was no assertion of lawful authority to inspect the animals without defendant's consent. See id. at ¶ 26 (no unlawful seizure occurs based on officer's request at the roadside to operator to exit the vehicle if the officer does not convey a message that compliance is required); 3 W. LaFave, Search and Seizure § 8.2(a) (1996) (collecting cases). The officer's statement did not convey or imply that she intended to search the kennels or house irrespective of defendant's consent.

¶ 13. As to her second argument, we conclude that the record is clear that defendant gave consent by her action of going into the house, obtaining the key to the kennel and opening the kennel. Consent can result from conduct which would be understood by a reasonable person as conveying consent. See Harris v. Carbonneau, 165 Vt. 433, 437, 685 A.2d 296, 299 (1996); see also United States v. Gordon, 173 F.3d 761, 766 (10th Cir.1999) ("Non-verbal conduct, considered with other factors, can constitute voluntary consent to search."); United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir.1975) (consent to enter dwelling implied from acts of opening door and stepping back); State v. Copeland, No. 01-1864, 2003 WL 553996, at *3 (Iowa Ct.App.2003) ("Consent does not necessarily have to be given verbally but may be found in gestures and non-verbal conduct as well."). In this instance, defendant's conduct in enabling the officers to enter the kennel clearly showed her consent to such entry.

¶ 14. On this point, defendant argues that we should require an explicit written statement of consent. The obtaining of such a statement may be good police practice, but it is not constitutionally required. Our past decisions have relied on oral expressions of consent, without a writing, see Sheehan, 171 Vt. at 643, 768 A.2d at 1277; Zaccaro, 154 Vt. at 90, 574 A.2d at 1261, and we see no reason to distinguish between conduct that conveys consent and a verbal statement of consent. Defendant also argues that we must consider defendant's conduct in the context of the court's finding that she acted with reluctance and disgust. While these findings might go to whether defendant acted voluntarily, as discussed below, they do not undermine the conclusion that she gave consent.

¶ 15. Finally, defendant argues that considering all the factors, her consent was not voluntary. She particularly relies upon three factors. First she emphasizes that Sergeant Stohl never informed her she could refuse Stohl's request. Although Stohl's failure to put defendant on notice of her right to refuse the search is a factor for us to consider, it is merely one factor and not a dispositive one in this case. See Sprague, 2003 VT 20, at ¶ 29, 824 A.2d 539 ("while a suspect's knowledge of the right to refuse is not essential...