State v. Zaccaro, 88-386

• Decision Date: 09 March 1990
• Docket Number: No. 88-386,88-386
• Parties: STATE of Vermont v. John ZACCARO, Jr.
• Court: Vermont Supreme Court

Page 1256

574 A.2d 1256

154 Vt. 83

STATE of Vermont v. John ZACCARO, Jr.

No. 88-386.

Supreme Court of Vermont.

March 9, 1990.

John Quinn, Addison County State's Atty., Middlebury, and Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt and David E. Tartter, Asst. Attys. Gen., Montpelier, for plaintiff-appellee.

Charles R. Tetzlaff and Thomas J. Sherrer of Latham, Eastman, Schweyer & Tetzlaff, Burlington, and Kathleen M. Sullivan and Brian Stuart Koukoutchos, Cambridge, Mass., for defendant-appellant.

Before PECK, GIBSON and DOOLEY, JJ., and BARNEY, C.J. (Ret.) and CONNARN, District Judge (Ret.), Specially Assigned.

GIBSON, Justice.

Defendant appeals from a conviction, following a jury trial, of possession and sale of a regulated drug. We affirm.

I.

On February 20, 1986, State Trooper Laura Manning and Sergeant David Wemette of the Middlebury Police Department conducted an undercover operation at the home of defendant, John A. Zaccaro, Jr., based on information received from unidentified sources that defendant was selling cocaine from that residence. Trooper Manning, dressed in casual clothes and wearing a body microphone, entered an enclosed, unlocked porch and knocked at a side door which led to the kitchen. Defendant's roommate informed her that Mr. Zaccaro would return in approximately one hour. Returning an hour later, Trooper Manning again entered defendant's enclosed porch and knocked on the door leading to the kitchen. One of the occupants of the house shouted for Manning to come in without any inquiry as to her identity or purpose for being there. She entered the kitchen and asked for John, who identified himself. Manning then asked defendant if she could buy cocaine from him. Defendant answered in the affirmative and invited Manning into the living room, where he displayed a tray of cocaine packets which had been concealed under a sofa in that room. Upon learning that Manning wished to purchase a quarter gram, defendant presented her with one of the packets and took twenty-five dollars in exchange. Manning left defendant's home and delivered the contents of the packet to the state police barracks, where it tested positive for cocaine. That same night, defendant's residence and automobile were searched pursuant to a warrant, and defendant was arrested.

On February 21, 1986, defendant was charged with possession of a regulated drug with intent to sell. Defendant moved to suppress all evidence seized as a result of the search warrant and to dismiss the charges on the ground of selective prosecution. The district court denied the selective prosecution motion, ruling that defendant had failed to demonstrate that he was singled out by the police and State for prosecution. That decision was appealed, but the appeal was dismissed by this Court on procedural grounds. Following suppression hearings, the court excluded the tape recordings taken from the body microphone worn by Trooper Manning, as well as all evidence taken pursuant to the search of defendant's automobile.

Defendant claims his conviction should be reversed because (1) the Vermont Constitution forbids a government agent from entering a private home uninvited and without a warrant to make an undercover drug buy on the basis of rumor alone; (2) the defendant was selectively and improperly targeted for prosecution; (3) the district court's instruction to the jury on entrapment was erroneous; and (4) defendant's right to a fair trial was violated when the court allowed testimony based on suppressed evidence.

II.

A.

Defendant's first contention, that the Vermont Constitution forbids a government agent from entering a private home uninvited and without a warrant to make an undercover drug buy on the basis of rumor alone, does not invalidate the police undercover operation under the facts of the instant case. At the suppression hearing, the trial court found that:

the trooper was on the premises with the consent of the occupants including the Defendant. This was based on the following facts: (a) that on each occasion the trooper knocked; (b) that she was invited in; (c) that on each occasion she was treated as a welcomed visitor by the occupants; (d) that she was invited to return after meeting Mr. Pifer and learning that Mr. Zaccaro would not be in until approximately 6:00 P.M.; (e) that she was invited into the house based on her testimony upon knocking the second time; (f) that she was invited into the living room by the Defendant from the kitchen and asked to take a seat; (g) she was then spoken to by the Defendant who then sold her the cocaine; (h) that upon leaving she was cordially treated and told to have a good time.

We will not disturb the trial court's findings of fact unless they are unsupported by the evidence or clearly erroneous. State v Malinowski, 148 Vt. 517, 520, 536 A.2d 921, 923 (1987). Upon a review of the record, we conclude that the evidence supports the court's findings. The evidence is uncontroverted that Trooper Manning entered defendant's home with the consent of one of the occupants. ¹ Further, when she asked defendant if she could buy cocaine, he invited her into the living room and proceeded, without further question, to consummate the sale. On these facts, we are unable to conclude that an illegal search or seizure resulted from Manning's entry into defendant's home. See Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 2781, 86 L.Ed.2d 370 (1985); State v. Connolly, 133 Vt. 565, 571, 350 A.2d 364, 368 (1975).

In making an independent analysis under CHAPTER I, ARTICLE 11 OF THE VERMONT CONSTITUTION² of whether Trooper Manning's undercover entry into defendant's home amounted to an unreasonable search, we may look for guidance to persuasive holdings from federal and sister-state jurisdictions. See State v. Wood, 148 Vt. 479, 482-83 n. 2, 536 A.2d 902, 904 n. 2 (1987). Moreover, we may "provide more generous protection to rights under the Vermont Constitution than afforded by the federal charter." State v. Badger, 141 Vt. 430, 449, 450 A.2d 336, 347 (1982); see Wood, 148 Vt. at 482, 536 A.2d at 904 (Fourth Amendment standing analysis rejected).

Probable cause and a search warrant are not required when consent to search is voluntarily given by one authorized to do so. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State v. White, 129 Vt. 220, 224, 274 A.2d 690, 692 (1971); cf. Badger, 141 Vt. at 453-54, 450 A.2d at 349 (father's consent to seizure of defendant son's clothes was tainted by prior, involuntary confession extracted from son). Defendant, however, argues that the State has not shown that the consent in the instant case was given freely and voluntarily, as required under Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). Specifically, defendant contends that there was no voluntary consent because Trooper Manning did not identify herself as a law enforcement officer or state the true purpose of her visit. We disagree.

We note at the outset that the 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. Schneckloth, 412 U.S. at 241-42, 93 S.Ct. at 2055-56; see Badger, 141 Vt. at 439, 442, 450 A.2d at 341, 343; cf. Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969) (defendant assumed risk that his cousin, with whom he shared a duffel bag, would allow police to search it). Voluntariness is a question of fact to be determined from all of the circumstances surrounding the controversy. Schneckloth, 412 U.S. at 233, 93 S.Ct. at 2050. The State need only show that the consent was given voluntarily, and was not the result of duress or coercion. Id. at 248, 93 S.Ct. at 2058; United States v. One (1) 1984 Mercedes Benz, 673 F.Supp. 387, 391 (D.Haw.1987); see also Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) (Fourth Amendment does not protect that which one exposes to public, even in home or office). Accordingly, consent does not lose its status of being freely and voluntarily given merely because it would not have been given had the person entering the premises identified himself or herself as a law enforcement officer or agent. See, e.g., State v. Posey, 40 Ohio St.3d 420, 429, 534 N.E.2d 61, 69 (1988), cert. denied, 492 U.S. 907, 109 S.Ct. 3217, 106 L.Ed.2d 567 (1989). Indeed, in White, where an undercover narcotics officer seeking to obtain information on drug activity picked up a hitchhiker who offered to give the officer marijuana for a ride to his home, we stated:

The undisputed evidence is that the [hitchhiker] expressly invited the officer into the house and voluntarily gave him the marijuana. There is nothing in the evidence indicating any implication that coercion was exerted upon the [hitchhiker] or that overbearing pressures were responsible for his self-incriminating conduct.

On the facts and circumstances established by the evidence, this case does not fall within the category of an unreasonable search and seizure. There is no evidence that the primary purpose of the agent was to make a search or that he in fact did make, or attempt to make, a search.

The bare fact that the agent was working under an assumed name does not constitute fraud. We have found no affirmative fraud or misrepresentation in the record inducing the [hitchhiker] to invite the agent into his room and give him the marijuana.

129 Vt. at 224, 274 A.2d at 692-93.

Defendant directs this Court's attention to State v. Pi Kappa Alpha Fraternity, 23 Ohio St.3d 141, 491 N.E.2d 1129, cert. denied, 479 U.S. 827, 107 S.Ct. 104, 93 L.Ed.2d 54 (1986), in which the Ohio Supreme Court, construing both the United States and the Ohio Constitutions, declined to find free and voluntary consent to a warrantless search where two liquor control agents were...