State v. Weisler

Citation2011 VT 96,35 A.3d 970
Decision Date16 September 2011
Docket Number10–067.,Nos. 10–040,s. 10–040
PartiesSTATE of Vermont v. Michael WEISLER.State of Vermont v. Raymond King.
CourtUnited States State Supreme Court of Vermont

2011 VT 96
35 A.3d 970

STATE of Vermont
Michael WEISLER.State of Vermont
Raymond King.

Nos. 10–040


Supreme Court of Vermont.

Sept. 16, 2011.

[35 A.3d 973]

David W. Gartenstein, Windham County Deputy State's Attorney, Brattleboro, for Plaintiff–Appellee.

William A. Nelson, Middlebury, for Defendant–Appellant King, and Allison N. Fulcher of Martin & Associates, Barre, for Defendant–Appellant Weisler.



¶ 1. Defendants in these consolidated appeals contend the trial court erred in denying a motion to suppress evidence seized from a vehicle in which they were passengers. The trial court found that the vehicle's owner voluntarily consented to the search. Defendants contend: (1) the finding of voluntariness must be reviewed de novo on appeal; (2) the consent to search was not voluntary; and (3) the consent was tainted by the owner's unlawful de facto arrest. We agree that the finding of voluntariness is subject to de novo review, but conclude that the consent was neither involuntary nor tainted, and therefore affirm.

¶ 2. The facts may be summarized as follows. On the evening of September 15, 2009, a Vermont state trooper monitoring traffic on Interstate 91 observed a vehicle traveling northbound without its rear license plate illuminated. The officer stopped the vehicle and approached it on foot from the passenger side. The vehicle was occupied by three men, later identified as Timothy Stone, the driver and owner; defendant Michael Weisler, the front passenger; and defendant Raymond King, the rear passenger. The officer asked for Stone's license and registration, and inquired as to his travel plans. In the process, the officer observed what he believed to be “marijuana flakes” on Weisler's shirt. The officer asked Stone to exit the vehicle, frisked him, and ordered him to be seated

[35 A.3d 974]

in his cruiser while he ran Stone's license and registration, which revealed a prior drug arrest. The officer spoke with Stone for a few minutes, asking him about the drug arrest and how much marijuana he had in the car. Stone said there was none. The officer then left to speak with the remaining passengers while Stone remained seated in the cruiser. 1

¶ 3. The officer asked for Weisler's identification, and was told that it was behind the seat. The officer thereupon asked Weisler to exit the vehicle. As Weisler reached under the seat, the officer observed on the floor a box of cellophane wrap and a clear baggie of white powder consistent in the officer's opinion with cocaine. Based on this observation and concern for his own safety, the officer ordered the men out of the vehicle, drew his handgun, and loudly shouted commands at both Weisler and King to get down on the ground and not to move. Both men were handcuffed and searched. The officer agreed that Stone had an opportunity to observe these events from where he was seated in the cruiser, and the police videotape clearly captures both the audio of the encounter and a subsequent visual of the men in handcuffs being searched.

¶ 4. The officer subsequently returned to the cruiser, informed Stone that there was “a big bag of cocaine” in his car, assured him that none of the men were under arrest, and told him that he would like to search the car “with your consent.” 2 A conversation ensued in which the officer twice repeated that Stone did not have to allow the search and read a form reiterating Stone's right to withhold consent. The officer also stated that he would “attempt [ ] to obtain a search warrant from a judge” if Stone did not allow the search. Stone acknowledged that he understood, gave the officer consent to search, and signed the consent form. The police then searched the vehicle, seizing a bag of white powder (which later tested positive for cocaine) along with straws and razor blades from the glove compartment.

¶ 5. All three men were charged with possession of cocaine. They filed a joint motion to suppress, asserting that Stone's exit order was unwarranted by any reasonable suspicion of wrongdoing, and that his subsequent consent to search was effectively coerced by the show of force against King and Weisler. Following a hearing in which only the investigating officer testified, the court issued a written ruling denying the motion. The court found that the exit order was supported by a reasonable suspicion of drug-related activity, and that Stone's consent to search was uncoerced and voluntary. Weisler and King entered conditional pleas of guilty and filed separate appeals, which we consolidated for review. Stone's case remains pending.


¶ 6. Defendants renew their claim that Stone's consent to the warrantless search of his vehicle was involuntary, and that all of the evidence seized therefrom must be

[35 A.3d 975]

excluded.3 See State v. Lussier, 171 Vt. 19, 30, 757 A.2d 1017, 1025 (2000) (evidence obtained in violation of constitutional rights may not be admitted at trial); State v. Badger, 141 Vt. 430, 443, 450 A.2d 336, 344 (1982) (seizure of evidence pursuant to involuntary consent violates Fourth Amendment). Before turning to the merits of the claim, however, we address a threshold dispute between the parties as to the appropriate standard of review. Defendants maintain that the voluntariness of a consent to search is a question of “constitutional fact” or a “mixed question of law and fact” subject to independent or de novo review on appeal. In contrast, the State asserts that it is a question of fact and therefore subject to review solely for clear error, i.e., the court's finding must be upheld unless “there is no reasonable or credible evidence to support” it. State v. Nault, 2006 VT 42, ¶ 7, 180 Vt. 567, 908 A.2d 408 (mem.) (quotation omitted).

¶ 7. In considering this issue, we do not write on a blank slate. The same question arose in connection with consent to search in State v. Sprague, 2003 VT 20, ¶ 24, 175 Vt. 123, 824 A.2d 539, where we acknowledged a tendency to “routinely” invoke the “de novo” formula in reviewing motions to suppress while applying a “more deferential” standard to the court's actual decision, but did not resolve the issue on the record presented. In at least two decisions since Sprague, however, we have definitively endorsed the “two-step” approach discussed in Sprague, wherein the trial court's underlying findings of “historical fact” are reviewed for clear error, while the ultimate “legal” conclusion or “constitutional fact” as to whether the historical facts establish voluntariness is reviewed de novo. Id. ¶ 24; see State v. Sole, 2009 VT 24, ¶ 23, 185 Vt. 504, 974 A.2d 587 (“As with any appeal of a grant or denial of a motion to suppress, we review the district court's factual findings for clear error and its legal conclusion de novo.”); State v. Stevens, 2004 VT 23, ¶ 10, 176 Vt. 613, 848 A.2d 330 (mem.) (“[W]e will apply a clearly erroneous standard to the trial court's underlying historical facts, while reviewing the ultimate legal conclusion ... de novo.” (quotation omitted)).

¶ 8. While thus seemingly settled, the standard-of-review issue nevertheless conceals layers of complexity largely unexamined in our earlier decisions. Indeed, our approach to date has been somewhat more reflexive than reflective, relying on the characterization of questions as “factual” or “legal” or a “mixed question” of law and fact without significant attention to the reasons for deferential or independent review in a particular context. Lack of clarity on the topic is not unique to this jurisdiction. The U.S. Supreme Court has itself acknowledged that “the appropriate methodology for distinguishing questions of fact from questions of law has been, to say the least, elusive,” and that it has “not charted an entirely clear course in this area.” Miller v. Fenton, 474 U.S. 104, 113, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985); see also Thompson v. Keohane, 516 U.S. 99, 110–11, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (observing that “the proper characterization of a question as one of fact or law is sometimes slippery”); see generally H. Monaghan, Constitutional Fact Review, 85 Colum. L.Rev. 229, 267 (1985) (noting the “erratic and uncertain” state of the law governing standard of review and the fact/law distinction).

¶ 9. As we recognized in Sprague, 2003 VT 20, ¶ 24, 175 Vt. 123, 824 A.2d 539, most federal courts have applied a clearly erroneous standard to the voluntary-consent

[35 A.3d 976]

issue, although the decisions are not monolithic. Compare, e.g., United States v. Silva–Arzeta, 602 F.3d 1208, 1213 (10th Cir.2010) (“Whether voluntary consent was given is a question of fact, determined by the totality of the circumstances and reviewed for clear error.” (quotation omitted)), and United States v. Tompkins, 130 F.3d 117, 120 (5th Cir.1997) (reaffirming rule that “the voluntariness of a detainee's consent to a warrantless search is a finding of fact to be reviewed for clear error”), with United States v. Wade, 400 F.3d 1019, 1021 (7th Cir.2005) (stating that “[q]uestions of law—that is, the legal conclusion of whether [the defendant's] consent [to search] was voluntary and whether he was illegally seized—are reviewed de novo.”), and Michael C. v. Gresbach, 479 F.Supp.2d 914, 920 (E.D.Wis.2007) (“Because voluntariness is determined based on a reasonable person standard, it is treated as a question of law.”).

¶ 10. At the same time, many state courts have adopted the two-step approach set forth in Sprague, deferring to the trial court's underlying findings of historical fact while independently deciding as a matter of law whether they ultimately demonstrate that the defendant's consent was voluntary and not the product of police duress or coercion. See, e.g., Woods v. State, 890 So.2d 559, 561 (Fla.Dist.Ct.App.2005) (holding that consent to search is a “[m]ixed question[ ] of law and fact ... reviewed by appellate courts using a two-step approach,...

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    ...exception, the Court's confession cases hold that the ultimate issue of 'voluntariness' is a legal question.")); see also State v. Weisler, 2011 VT 96, ¶ 12, 190 Vt. 344, 35 A.3d 970 (recognizing that standard of review governing voluntariness of confessions is "generally de novo" and citin......
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    ...208 A.3d 619. The trial court's findings are upheld unless there is no reasonable or credible evidence to support them. State v. Weisler, 2011 VT 96, ¶ 6, 190 Vt. 344, 35 A.3d 970. If the trial court's findings are not clearly erroneous, we then review the legal issues de novo. Id. ¶ 7 (cit......
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