190 Vt. 344 | Vt. | 2011
Lead Opinion
¶ 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 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.
¶ 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
¶ 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.”
¶ 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 excluded.
¶ 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
¶ 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 (1985); see also Thompson v. Keohane, 516 U.S. 99, 110-11 (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, most federal courts have applied a clearly erroneous standard to the voluntary-consent 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 warrant-less 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 “[questions 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
¶ 11. As so often with the law, tracing the source of a rule can yield unexpected insights. One leading criminal-law commentator notes that the clearly erroneous standard is most often “attributed to the Supreme Court’s assertion in Schneckloth v. Bustamante,
¶ 12. Context here is critical, because the standard of review governing the voluntariness of confessions — at the time of Schneckloth and since — is generally de novo. See Miller, 474 U.S. at 115 (declining “to abandon the Court’s longstanding position” that the ultimate question of voluntariness of a confession “is a legal question meriting independent consideration”); Davis v. North Carolina, 384 U.S. 737, 741-42 (1966) (“It is our duty in this case, however, as in all of our prior cases dealing with the question whether a confession was involuntarily given, to examine the entire record and make an independent determination of the ultimate issue of voluntariness.”); Tompkins, 130 F.3d at 120 n.10 (noting that the “ultimate issue” concerning the voluntariness of confessions “is uniformly held to be subject to de novo review”). Clearly, the high court perceived no inconsistency in deeming the voluntariness of a confession to be a highly contextual, fact-specific inquiry in the first instance subject, nevertheless, to independent review on appeal. Simply labeling con
¶ 13. More recent Supreme Court decisions, starting with Miller v. Fenton, offer additional guidance. There, the high court specifically rejected the government’s claim that the “case-specific” nature of the “voluntariness” inquiry undermined any basis for independent review of confessions in habeas proceedings. 474 U.S. at 113.
¶ 14. The Court proceeded to explain that determining whether, in a given case, a suspect’s consent was given voluntarily and in compliance with due process implicates a “complex of values . . . [that] militates against treating the question as one of simple historical fact.” Id. at 116 (quotation and citation omitted). Moreover, as the high court later explained in Bose Corp. v. Consumers Union of United States, Inc., “the rule of independent review assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge.” 466 U.S. 485, 501 (1984). Thus, regardless of whether the trial
¶ 15. The Supreme Court subsequently refined its functional approach to standard-of-review issues in a pair of seminal criminal-procedure rulings, Thompson v. Keohane and Ornelas. In Thompson, the Court held that the question of whether a suspect is “in custody” and therefore entitled to Miranda warnings was “a mixed question of law and fact qualifying for independent review.” 516 U.S. at 102. In Ornelas, the question was whether findings of reasonable suspicion to stop and probable cause to conduct a warrantless search “should be reviewed ‘deferentially,’ and for ‘clear error.’ ” 517 U.S. at 691. The Court ruled that they should be reviewed de novo. Id.
¶ 16. Instructively, the Court applied similar factors and reasoning in reaching its conclusion in both cases. First, the Court noted that “objective” factors inform both decisions. In resolving the in-custody issue, the question is “what were the circumstances surrounding the interrogation” and “would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson, 516 U.S. at 112. In Ornelas, the Court observed that once the historical facts are established, the decision turns on “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.” 517 U.S. at 696. Thus, assessments of demeanor and credibility — the traditional province of the trial judge — while relevant to establishing the underlying facts were not central to the crucial evaluation as to whether those facts meet the objective test of reasonableness in either case. Id. at 696-97; Thompson, 516 U.S. at 113-15.
¶ 18. Any number of courts have since looked to the principles articulated in Miller, Thompson, and Ornelas to determine the appropriate standard of review of other issues, including the voluntariness of a consent to search. Many have concluded that these principles militate in favor of independent review. State v. Thurman, 846 P.2d 1256 (Utah 1993), is illustrative. There, the Utah Supreme Court reasoned that the “two-step” approach to consent to search most closely approximates “the relative functions of the trial and appellate courts while ensuring the consistent and uniform protection of a fundamental civil liberty.” Id. at 1271. Application of the clearly erroneous standard to the underlying factual findings “recognizes the trial court’s advantaged position in judging credibility and resolving evidentiary conflicts” while application of the de novo standard to the “ultimate voluntariness determination acknowledges” the traditional role of appellate judges in giving content to that inquiry. Id. The Utah court’s reasoning echoes that of the high court, and is worth consideration in full:
[T]he concept of “voluntariness” reflects a balance between the need for effective law enforcement and society’s belief that the coercive powers of law enforcement must not be unfairly exercised. Declaring whether certain police conduct is or is not unfairly coercive sets the norms that fix the limits of acceptable police behavior.*357 There can be little question that establishing such norms involves substantive policy judgments and that such norms should have jurisdiction-wide application. These are functions classically reserved to multi-judge appellate panels. In short, what constitutes unfairly coercive police behavior should not vary from courtroom to courtroom within Utah. This end is best accomplished by viewing the ultimate conclusion that consent was voluntary or involuntary as a question of law, reviewable for correctness.
Id. (citations omitted).
¶ 19. The Wisconsin Supreme Court also engaged in a thoughtful analysis of the issue in State v. Phillips, 577 N.W.2d 794 (Wis. 1998). The Phillips court addressed the state’s request to overrule its earlier holding in State v. Turner, 401 N.W.2d 827, 833 (Wis. 1987), that voluntariness of consent to search is reviewed independently on appeal. The state cited the federal decisions predicated on Schneckloth’s characterization of the issue as one of fact to be determined from the totality of the circumstances. Phillips, 577 N.W.2d at 800. The Wisconsin court, however, rejected the proposition that standard of review “turn[s] on whether the underlying determination of the [trial] court was fact-specific.” Id. Instead, like the U.S. Supreme Court in Miller and Ornelas, the court reasoned that “the principal reason for independent appellate review ... is to provide uniformity in constitutional decision-making” on matters that reflect “the basic value commitments of our society.” Id. at 800-01. “In applying the skeletal constitutional rule,” the court continued, “appellate courts flesh out the rule and provide guidance to litigants, lawyers, and trial and appellate courts.” Id. at 801 (quotation omitted). The court thus concluded that it would continue to treat voluntariness of consent as an issue of “constitutional fact” subject to independent review on appeal. Id.
¶ 20. As noted, other courts have reached similar conclusions, for similar reasons. See, e.g., Phuagnong v. State, 714 So. 2d 527, 529-30 (Fla. Dist. Ct. App. 1998) (relying on high court decisions in Miller and Ornelas to hold that “[t]he same reasoning supports independent appellate review where the validity of a search has been found to rest ... on consent”); Nadeau, 2010 ME 71, ¶ 18 (holding that voluntariness of consent to search presents an
¶ 21. Still, a number of courts, for reasons not always clear, continue to apply the clearly erroneous standard to consent to search. Although rarely discussed in the case law, objections to independent review appear to focus on several points. First is the matter of judicial resources, i.e., the concern that de novo review is “redundant and wasteful” and might serve to encourage frivolous appeals. Thurman, 846 P.2d at 1271; see also F. Strong, The Persistent Doctrine of “Constitutional Fact”, 46 N.C. L. Rev. 223, 281 (1968) (expressing concern over the potential proliferation of cases requiring independent review); A. Hoffman, Note, Corralling Constitutional Fact: De Novo Fact Review in the Federal Appellate Courts, 50 Duke L.J. 1427, 1459 (2001) (citing the worry that an “overly expansive constitutional fact doctrine would . . . overwhelm” the appellate docket). As the court in Thurman observed, however, the argument proves too much; it could be applied to any issue of law subject to de novo review, and thus provides no real “reason in itself to adopt the clearly erroneous standard.” 846 P.2d at 1271; see also M. Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D. 173, 181 (1978) (rejecting preservation of judicial resources as a persuasive reason for appellate deference because “it is non-discriminating [and] could apply to any and every question”). The concern for preserving appellate resources is even less persuasive in states like Vermont, where appeal from a criminal conviction is “as of right” to the Supreme Court.
¶ 22. Another related concern expressed by some commentators is the need to define “effective limiting principle^] for when
¶23. Finally, there is the argument from authority. This generally takes two forms. Those courts that continue to apply a clearly erroneous standard do so largely on the basis of longstanding precedent — precedent that relies, in turn, on Schneckloth’s characterization of the question as one of fact comparable to confessions. See e.g., Navarro, 90 F.3d at 1256 (concluding on the basis of Schneckloth that the court would “review the question of voluntariness ... for clear error because
¶ 24. A few courts have gone further and determined not to depart from the clearly erroneous standard on the strength of the Supreme Court’s reaffirmation of Schneckloth in Ohio v. Robinette, 519 U.S. 33, 40 (1996). See, e.g., Tompkins, 130 F.3d at 120 (“The Robinette Court noted that voluntariness of consent to search is a question of fact; as such, it does not trigger the die novo review mandated by the Supreme Court in Ornelas.”); State v. Southern, No. 00CA2541, 2000 WL 33226310, at *3 (Ohio Ct. App. Dec. 28, 2000) (concluding that it was “duty bound to follow” Robinette in determining whether trial court’s finding on voluntariness of consent to search was against manifest weight of the evidence). The difficulty here is that Robinette was no more concerned with standard of review than Schneckloth. The question was whether a consent to search should be considered involuntary “per se” where the police fail to inform the suspect that he or she is free to go, and the Court simply reaffirmed its holding in Schneckloth that the question is not susceptible to “bright-line” rules but turns on all the circumstances surrounding the encounter. 519 U.S. at 39-40. Thus, Robinette is no more persuasive on the issue than Schneckloth.
¶ 25. With this background in mind, we are persuaded that the reasoning of those courts that have adopted independent review in this setting is fundamentally sound, and that any objections are without merit.
¶ 26. At the same time, as the Supreme Court stressed in Ornelas, the “multi-faceted” nature of the voluntariness inquiry underscores the need for a body of binding case-law applying the consent-standard in a variety of individual cases, thereby providing “content . . . through application” and guidance to the police and the trial courts. 517 U.S. at 697; see also Miller, 474 U.S. at 114 (citing the imperative for independent review where “the relevant legal principle can be given meaning only through its application to the particular circumstances of a case”). Finally, we recognize that the voluntariness-of-consent issue implicates a “complex of values,” Miller, 474 U.S. at 116 (quotation omitted); it requires a balancing of the need for effective law enforcement against the imperative to restrain unfair police tactics and main
¶ 27. Although our dissenting colleague objects to this holding on several grounds, none proves persuasive. The dissent expresses initial concern about “the breadth of the majority holding,” observing that “the issues underlying a motion to suppress can be very different.” Post, ¶¶ 47, 48. We quite agree, which is why our analysis is focused exclusively on consent to search, and our holding is limited to that issue. The concern for overbreadth is unfounded.
¶ 28. Equally baseless is the dissent’s suggestion that our holding represents a departure from past practice based on a misguided desire to “fix” what is not broken. Post, ¶ 51. On the contrary, as explained at the beginning of this opinion, the law in this area (our own included) is strikingly unsettled and inconsistent, and warrants the fresh review in the preceding discussion. Nor does our holding break new ground. While we acknowledge the split of authority on the question presented, we ultimately rely on the reasoning in numerous state court decisions that the voluntariness of a suspect’s consent to search must be examined independently by a reviewing court.
¶ 29. Turning to issues of substance, the dissent questions the relevance of the trilogy of Supreme Court decisions — Miller, Thompson, and Ornelas — that inform our analysis. If these cases are indeed inapposite then we can only conclude that the numerous courts and commentators that have relied on them for similar guidance must be equally misinformed. That is not, however, the case. While it was decided as a habeas matter, Thompson’s analysis of the respective roles of trial and appellate courts has been usefully applied beyond the habeas context, to hold, for example, that “in custody” determinations for Miranda purposes must be reviewed de novo in direct appeals. See, e.g., United States v. LeBrun, 363 F.3d 715, 719 (8th Cir. 2004) (“It seems clear to us that Thompson’s rationale requires that on direct appeal we review the district court’s custody determination de novo.”); State v. Smith, 38 P.3d 1149, 1153 (Alaska 2002)
¶ 30. The dissent’s critique of Ornelas is weaker still, resting on a claim that we have ignored or rejected that portion of the Supreme Court’s opinion reaffirming the traditional deference afforded trial court findings of historical fact. Ornelas’s significance, however, was its seminal holding — later specifically reaffirmed in United States v. Arvizu, 534 U.S. 266 (2002) — that the standard of appellate review for reasonable-suspicion determinations must be de novo in order “to unify precedent!,] . . . provide law enforcement officers with the tools to reach correct determinations beforehand,” and “add to the body of law on the subject.” Id. at 275 (citing and quoting Ornelas, 517 U.S. at 697-98)). As previously discussed, but largely ignored by the dissent, the high court’s analysis and holding in Ornelas have been applied by courts in other areas, including consent searches.
¶ 31. The third and arguably most compelling leg of our analysis, Miller v. Fenton, the dissent dismisses as yet another habeas case. As explained, however, the Supreme Court expressly extended its holding in Miller to direct appeals in Fulminante, 499 U.S. at 287 (holding that “the ultimate issue of ‘voluntariness’ is a legal question” requiring independent review (quoting Miller, 474 U.S. at 110)). More important, the dissent overlooks the body of case law — previously discussed — that has relied on Miller to conclude that the voluntariness of a consent search must be reviewed de novo on appeal.
¶ 32. The dissent further claims that the “most important” distinction between this case and the Supreme Court decisions is that the voluntariness inquiry here implicates a “subjective” standard requiring a determination of the defendant’s state of mind, an inquiry that turns principally on issues of fact. Post, ¶¶
¶ 33. The voluntariness inquiry may include an appraisal of such personal attributes as the suspect’s age, education, maturity, and intelligence. Fulminante, 499 U.S. at 286 n.2; Schneckloth, 412 U.S. at 226. Nevertheless, the inquiry remains an objective one, focused on whether a reasonable person in the defendant’s circumstances would have retained the freedom of will to withhold consent, not whether the specific defendant’s subjective will was overborne. See Commonwealth v. Strickler, 757 A.2d 884, 901 (Pa. 2000) (observing that, “although the [voluntariness] inquiry is an
¶ 34. Ultimately, it is not the purported distinctions from Ornelas, Thompson, and Miller that appear to drive the dissent but rather a fundamental disagreement with their holdings, a disagreement grounded on a suspicion that de novo review somehow represents a “negative assessment of the quality of fact-finding by trial courts with respect to federal constitutional questions.” Post, ¶ 76. This inference is unfounded and can not be reached by anything stated or implied in the majority opinion. Like the U.S. Supreme Court, we continue to accord substantial deference to the trial court’s findings of historical fact. Nothing in our opinion can or should be construed to undermine this fundamental principle of appellate review.
II.
¶ 35. Turning to the particular facts and circumstances presented, our independent review of the record leads us to conclude that Stone’s consent to search was voluntary. Defendants’ appeal focuses on two principal points. First, they contend the trial court disregarded a critical circumstance that allegedly rendered the environment inherently coercive, to wit, Stone’s observation from the police cruiser of defendants’ being forced to the ground at gunpoint, handcuffed, and patted down.
¶ 36. Viewing the officer with his gun drawn outside of the police cruiser might have seemed intimidating to Stone, sitting inside of the cruiser. Nevertheless, we are persuaded by all of the surrounding facts and circumstances that his consent to search was voluntary. Display of a weapon, shouting, and forcibly subduing or handcuffing a suspect does not per se vitiate a subsequent consent to search that the record otherwise shows to be uncoerced and freely given. See, e.g., United States v. Brown, 563 F.3d 410, 413, 416 (9th Cir. 2009) (upholding consent to search after suspect was initially ordered to ground at gunpoint, handcuffed, and patted down); United States v. Jones, 523 F.3d 31, 38 (1st Cir. 2008) (rejecting claim that circumstances of consent to search were “inherently coercive” where it was preceded by officers’ forcible entry with guns drawn and defendant was handcuffed and removed to separate room); United States v. Kimoana, 383 F.3d 1215, 1226 (10th Cir. 2004) (although officers entered room with guns drawn and raised voices, subsequent consent to search was voluntary where guns were holstered and “calm” had been restored); State v. Sokolowski, 474 S.E.2d 333, 336 (N.C. 1996) (upholding consent to search from suspect earlier disarmed at gunpoint, Mirandized, and in custody); Sole, 2009 VT 24, ¶ 24 (observing that “it is settled that consent may be properly deemed voluntary even when a suspect is handcuffed and under arrest”).
¶ 37. Stone’s observation of the officers’ display of force may have been unsettling, but it was not specifically directed at him, and there was nothing about the encounter to suggest that Stone’s capacity to reason should have been unhinged or his
¶ 38. It is true that the officer also cautioned Stone that a refusal to give consent would result in the officer’s “attempting to obtain a search warrant from a judge.” We have explained, however, that statements indicating an intent by the police to apply for a warrant merely “describe what will occur in the event of a refusal” and do not undermine a subsequent consent to search. State v. Pitts, 2009 VT 51, ¶ 30, 186 Vt. 71, 978 A.2d 14. Nor, contrary to defendants’ assertion, do the additional circumstances that Stone expressed a desire to get back to his young daughter, that the stop occurred late at night on the side of the road, or that a number of officers were present — viewed individually or in combination — demonstrate an environment so inherently coercive that Stone could not freely give consent to the search.
¶ 39. Second, defendants assert that Stone was indisputably in police custody — indeed that he was effectively under
¶ 40. Furthermore, that the circumstances may — arguably — have elevated Stone’s detention to the level of a de facto arrest does not invariably “taint” Stone’s subsequent consent to search. Based on his initial observation of what he believed, in his experience, to be marijuana flakes, the investigating officer had at least a reasonable suspicion of wrongdoing sufficient to justify Stone’s initial brief detention in the cruiser. See State v. Ford, 2007 VT 107, ¶ 4, 182 Vt. 421, 940 A.2d 687 (holding that reasonable and articulable suspicion of wrongdoing may support brief detention and questioning into circumstances that gave rise to suspicion). Defendants contend, however, that the initial detention, which lasted several minutes, was custodial in nature and therefore required not simply reasonable suspicion, but actual probable cause to arrest. See Sole, 2009 VT 24, ¶ 18 (while mere placement of driver in police cruiser does not render questioning custodial, further questioning about drug possession “turned what
¶ 41. Whatever the merits of this claim, the facts establish no causal nexus between Stone’s brief initial detention and his later consent to search. As noted, the record shows that Stone denied any illegality; that the officer then left the cruiser to speak with the remaining passengers in the vehicle about what he believed to be marijuana, where he observed the cocaine and related packaging materials; and that he then returned to the cruiser, informed Stone about the contraband, and received consent to search during the subsequent colloquy. Nothing that occurred during the initial detention, therefore, appears to have caused the officer to approach and question the other passengers, observe the cocaine, or return to question Stone. We thus discern no basis to conclude that the initial detention led to or “tainted” the later consent. To the extent that there was any connection, however, we are satisfied that it was sufficiently attenuated by the several intervening events. See Sprague, 2003 VT 20, ¶ 32 (consent to search may be upheld where intervening significant events vitiate any taint arising from illegal detention).
¶42. Even assuming, however, that Stone was effectively in custody and under arrest when he actually consented to the search, the de facto arrest would only be illegal if the police at that point lacked probable cause. See State v. Guzman, 2008 VT 116, ¶ 16, 184 Vt. 518, 965 A.2d 544 (finding of probable cause to arrest does not require “formal[] arrest” of suspect since “[p]robable cause depends on whether there are objective facts to support such a finding, not whether the officers subjectively believed there was probable cause”). The standard for a finding of probable cause for a warrantless arrest is whether “the facts and circumstances known to an officer are sufficient to lead a reasonable person to believe that a crime was committed and that the suspect committed it.” State v. Chicoine, 2007 VT 43, ¶ 8, 181 Vt. 632, 928 A.2d 484 (mem.). The question must be resolved in light of the totality of the circumstances, assessed in a “practical . . . common sense manner.” Guzman, 2008 VT 116, ¶ 11 (quotation omitted).
¶ 43. Probable cause to arrest or search may be based on the observation of illegal drugs by an officer with the training and
¶ 44. Viewing the circumstances presented here in their entirety and in a “practical [and] . . . common sense manner,” Guzman, 2008 VT 116, ¶ 11, we conclude that the officer’s clear viewing of what appeared — based on his training and experience — to be cocaine on the floor of Stone’s car, combined with his earlier observation of what he believed to be marijuana flakes, the packaging of the white substance which he recognized as “consistent with powdered cocaine,” and the roll of cellophane wrap which is commonly used in packaging illegal drugs,
Affirmed.
Although the trial court found that the record was unclear whether Stone was handcuffed at this time, defendants claimed in their opening brief that he was handcuffed. The State disagreed, and defendants ultimately conceded in their reply brief and at oral argument that he was not handcuffed until later, and then only for a brief period of three to four minutes.
Although the trial court made no findings on whether or when Stone was handcuffed, the parties agree that the videotape shows that the investigating officer placed Stone in handcuffs shortly after subduing Weisler and King, but removed them several minutes later, before the second interview with Stone in which he consented to the search.
The State does not contest defendants’ standing to assert the claim under the automatic standing rule of State v. Wright, 157 Vt. 653, 654, 596 A.2d 925, 926 (1991) (mem.).
Our own confession cases are similarly erratic, occasionally stating that we review for clear error, see, e.g., State v. Beckley, 157 Vt. 446, 450, 600 A.2d 294, 296 (1991), while recognizing the need for an independent determination of the ultimate issue of voluntariness, In re Robinson, 161 Vt. 550, 554, 641 A.2d 779, 781 (1994).
Although Miller involved federal habeas review of a state decision, the Court has since applied the independent review standard to confessions on direct appeal. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 287 (1991).
Our conclusion is based on the persuasive principles articulated by the Supreme Court and applied by a number of state courts, as discussed above. Therefore, we note, but need not resolve, the ongoing debate among courts and commentators as to whether the principles articulated by the Supreme Court concerning the standard of review for Fourth Amendment-related issues are actually binding on the states. See generally R. Coombs, A Third Parallel Primrose Path: The Supreme Court’s Repeated, Unexplained, and Still Growing Regulation of State Courts’ Criminal Appeals, 2005 Mich. St. L. Rev. 541, 551-52 (discussing the substantial confusion among state appellate courts as to whether they are bound to apply the Supreme Court’s de novo review decisions because the Court “has not
Stone was also handcuffed at one point during the episode, but defendants have conceded that the handcuffs were removed before the conversation with the officer in which he gave consent to search.
Defendants also summarily assert that the trial court’s statements, quoted above, indicate that the court impermissibly shifted the burden of proof on the voluntariness of consent to defendants. See State v. Pitts, 2009 VT 51, ¶ 24, 186 Vt. 71, 978 A.2d 14 (noting that State carries burden of demonstrating that consent was freely given and not coerced). The court’s statements do not, however, suggest either that it misunderstood the burden of proof — which it accurately described as resting with the State — or that it impermissibly shifted the burden to defendants.
See, e.g., United States v. Lasso-Barrios, 958 F. Supp. 283, 287 (W.D. Tex. 1997) (officers’ discovery in van of incriminating evidence, including large roll of plastic
While asserting that he was effectively under arrest, Stone does not seek to suppress under Miranda v. Arizona, 384 U.S. 436 (1966), any unwarned statements that he made to the officer during the conversation, and we have held that a consent to search is not testimonial in nature and therefore does not require Miranda warnings even if the suspect is in custody. Sole, 2009 VT 24, ¶ 22.
Concurrence in Part
¶ 45. concurring and dissenting. The majority correctly acknowledges that the standard-of-review issue in this case conceals “layers of complexity” previously unexamined by this Court. Ante, ¶ 8. I am pleased that we are finally acknowledging that in State v. Sprague, 2003 VT 20, ¶ 24, 175 Vt. 123, 824 A.2d 539, State v. Stevens, 2004 VT 23, ¶ 10, 176 Vt. 613, 848 A.2d 330 (mem.), and State v. Sole, 2009 VT 24, ¶23, 185 Vt. 504, 974 A.2d 587, we have overruled decades of standard-of-review jurisprudence with no recognition that we have done so and no analysis of the relative merit of our action. Unlike the majority, however, I would rule that our recent change of direction is wrong and misguided and return to the deferential standard of review that has served us well. Accordingly, I dissent from the majority’s standard-of-review holding. Under a deferential standard of review, I would affirm the district court’s decision.
¶ 46. My disagreement takes two forms. I think our change of direction was wrong in any Fourth Amendment case for reasons I state below.
¶ 47. My second disagreement is with the breadth of the majority holding and our earlier decisions. We have assumed that all motions to suppress should be decided on de novo review, without distinguishing between the underlying issues, see State v. Pitts, 2009 VT 51, ¶ 6, 186 Vt. 71, 978 A.2d 14, another indication that our recent standard-of-review decisions were hasty and only superficially considered. The majority has chosen not to reconsider these broad holdings, and they remain the law. There is no indication anywhere that the majority would change course as to other types of motions to suppress. -Thus, I find the majority’s assertion that this decision is only about the voluntariness of consent misleading.
¶ 48. As this case demonstrates, the issues underlying a motion to suppress can be very different, and the differences are significant for the question before us. As I argue below, even if some issues raised in motions to suppress should involve a de novo standard of review when they reach this Court, the issue of whether consent to search is voluntary should not be subject to de novo review. The decisions from other jurisdictions are overwhelmingly against de novo review in this instance, and I do not believe that the U.S. Supreme Court would adopt it even for the federal courts.
¶ 49. No act is more difficult for an appellate judge than to affirm a lower court decision the judge believes is wrong, and this decision should be viewed from that perspective. We are after all a higher court, and our view should prevail. The difficulty is enhanced if the decision involves an important constitutional right of a citizen. How can we fail to intervene if we believe that a litigant was the subject of an unreasonable and unlawful search and seizure?
¶ 51. We have a clear system of allocating decisional responsibility between the trial courts and the Supreme Court, and it has been developed and refined over hundreds of years. It best achieves accuracy and fairness in judicial decisions, and it best allocates limited resources. There is no evidence that it is in any sense broken or deficient, even when constitutional decisions are involved. We made a mistake in trying to “fix” it — a mistake we should correct today.
¶ 52. I will start with the narrower point, that the question of whether consent to search is voluntary should not be subject to de novo review in this Court. As the U.S. Supreme Court has said explicitly, see Ohio v. Robinette, 519 U.S. 33, 40 (1996); Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973), and we have echoed, “[v]oluntariness is a question of fact to be determined by the totality of all the surrounding circumstances,” State v. Sheehan, 171 Vt. 642, 643, 768 A.2d 1275, 1277 (2000) (mem.). Thus, under our long-standing precedents, we uphold the trial court’s finding of voluntariness if “it is supported by the evidence and is not clearly erroneous.” Id.; see also State v. Beckley, 157 Vt. 446, 450, 600 A.2d 294, 297 (1991) (‘We will uphold a trial court’s ruling on the voluntariness of a confession unless that conclusion is unsupported by the evidence or is clearly erroneous.”); State v. Stanislaw, 153 Vt. 517, 532, 573 A.2d 286, 295 (1990) (discussing the voluntariness of confessions, this Court said, “the trial court’s findings must stand if they are supported by substantial credible evidence and are not clearly erroneous” (quotation omitted)); State v. Malinowski, 148 Vt. 517, 520, 536 A.2d 921, 923 (1987) (noting that in cases involving asserted waivers of Miranda rights, “it was for the trial court to determine the weight and sufficiency of the evidence and the credibility of
¶ 53. In this case, the district court held an evidentiary hearing in which one officer — but none of the occupants of the vehicle — testified. It found, based on that testimony and a police-vehicle videotape of some of the events, that the consent to search was voluntary. Under our traditional standard of review, we should affirm that decision.
¶ 54. Our long-standing standard of review was based fundamentally on a policy choice of who should make this type of decision. See Miller v. Fenton, 474 U.S. 104, 114 (1985). The trial judge observes the witness and is positioned to develop the record to ensure that the relevant considerations can be contemplated. See Malinowski, 148 Vt. at 523-24, 536 A.2d at 925. The trial judge is in a better position to determine whether a defendant’s consent was voluntary under all the circumstances present. We have explained this over and over again in countless contexts.
¶ 55. The majority concludes, however, that there are reasons to eliminate any deferential standard of review for certain constitutional facts, particularly whether consent to search is voluntary. In making its analysis, the majority emphasizes the reasons for eliminating any deference, but largely ignores any contrary reasons. We are free to develop our own jurisprudence in this area, and if we consider all of the relevant reasons, we should stay with our traditional standard of review, which has served us well.
¶ 56. Before I explain the reasons for my position, I want to explain the state of the law. Although not quite saying so, the majority specifically points to two U.S. Supreme Court decisions as requiring de novo review in this case: Thompson v. Keohane, 516 U.S. 99 (1995), and Ornelas v. United States, 517 U.S. 690 (1996). Thompson involves whether determining if a person is “in custody” for Miranda purposes is a question of fact for purposes of the federal habeas corpus statute, 28 U.S.C. § 2254(d), and therefore “presumed to be correct” in the federal proceeding under that statute. The Court held that, under the statutory language, mixed questions of fact and law are legal and consid
¶ 57. Ornelas is arguably closer because it involves Fourth Amendment issues and the proper standard of review. It held that the question of whether reasonable suspicion or probable cause is present is reviewed under a modified de novo standard. Ornelas observed that “[articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible,” and that these are “fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed.” Ornelas, 517 U.S. at 695, 696. In this context, Ornelas found that de novo review was necessary because the results of “sweeping deference . . . would be inconsistent with the idea of a unitary system of law,” “legal rules for probable cause and reasonable suspicion acquire content only through application,” and “de novo review tends to unify precedent.” Id. at 697. Although the Court adopted a form of de novo review, it modified it to provide a degree of deference to the trial judge and local law enforcement officers. The Court said that the reviewing court should “give due weight to inferences drawn from [historical] facts by resident judges and local law enforcement officers,” and termed giving weight to those inferences “deference.” Id. at 699; see also United States v. Arvizu, 534 U.S. 266, 277 (2002). I note that the majority has rejected this part of the opinion. Its explanation that this part of Ornelas is about historical facts is wrong. As the quoted language, says, the Court’s holding is about inferences drawn from historical facts — exactly the issue between the majority and this dissent.
¶ 58. We decided Sprague seven years after the Supreme Court decided Ornelas and, nevertheless, observed that “federal appellate courts uniformly apply a clearly erroneous standard to the voluntary-consent issue.” Sprague, 2003 VT 20, ¶ 24. The situation is close to the same today. 6 W. LaFave, Search and Seizure § 11.7(c), at 449 (4th ed. 2004) (“the great majority of courts take the position that the clearly erroneous standard is appropriate”);
¶ 59. The majority takes me to task for not acknowledging that there are contrary decisions. I readily acknowledge that fact but
¶ 60. I suggest that there are three main reasons for the actions of the federal appellate courts in rejecting de novo review in these circumstances. The first is the placement of the U.S. Supreme Court decisions in context. This rationale was adopted in United States v. Tompkins, 130 F.3d 117 (5th Cir. 1997), in refusing to apply Ornelas to a voluntariness-of-consent issue:
We decline Tompkins’ invitation to employ Ornelas’ two-tier standard when we review a district court’s determination whether consent to search was given voluntarily. The Supreme Court reiterated its deferential standard of review for Fourth Amendment voluntariness determinations in Ohio v. Robinette, a post-Ornelas decision. The Robinette Court noted that voluntariness of consent to search is a question of fact; as such, it does not trigger the de novo review mandated by the Supreme Court in Ornelas for mixed questions of law and fact. The Supreme Court’s refusal to depart from its established precedent, coupled "with the virtually monolithic position of the circuits in affording deferential review to voluntariness inquiries raised by consensual searches, persuades us that Tompkins’ reliance on Ornelas to mandate a change in our clear error standard of review is misplaced.
Id. at 120-21.
¶ 61. Second, and most important, the issue of whether consent to search is voluntary involves a determination of the defendant’s state of mind, which is a question of fact, as the Supreme Court has held over and over. It is no less a question of fact where the “fact” is not directly observable. Thus, it is the kind of question for which appellate courts routinely give deference to the trial courts. See Logan v. State, 773 So. 2d 338, 343 (Miss. 2000) (“[The trial court] observes the witnesses first hand, hears the evidence and then determines whether the consent was, in fact, voluntary or not.”); State v. King, 209 A.2d 110, 114 (N.J. 1965) (“The fact that the present case has to do with an ultimate finding of fact of constitutional dimension does not compel a different standard of appellate review. . . . [T]he determination whether consent was
¶ 62. Not only is the question one of fact, it is a question of historical fact. The court must determine whether the consent to search was voluntary at the time it was given. This awareness is important because, in my judgment, the majority has created an artificial and unworkable distinction under which questions of historical fact are reviewed deferentially under a clearly erroneous standard, except when they are not, as in this case.
¶ 63. There are important differences between the question before this Court and those before the Supreme Court in Ornelas and Thompson. In Thompson, the issue was whether the defendant was in custody for Miranda purposes when he was interrogated. 516 U.S. at 107. In Ornelas, the issues were whether police officers had reasonable suspicion to stop a vehicle and probable cause to conduct a warrantless search. 517 U.S. at 695. In each case, the standards the Court created to resolve the issues were purely objective. See Thompson, 516 U.S. at 112 (articulating the standard as whether “a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave”); see also Ornelas, 517 U.S. at 696 (reciting reasonable suspicion standard as whether there is a particularized and objective basis for suspecting the person stopped of criminal activity; for probable cause to search as whether the “known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found”). On these questions the perspective of the trial judge in hearing the evidence and seeing the witnesses is of lesser importance because the questions do not involve the defendant’s state of mind, but instead the state of mind of a theoretical reasonable person. See Thompson, 516 U.S. at 113-14 (explaining that trial court credibility determinations are not involved in deciding whether reasonable person would feel free to terminate the interrogation and leave). Under these circumstances, there is less reason to give deference to the trial court’s conclusion.
¶ 65. The trial judge’s perspective in seeing and hearing the witnesses is very important in determining the actual state of mind of the defendant. Factual findings made from that perspective deserve deference and should not be reviewed de novo by appellate judges on a cold record.
¶ 66. A related difference involves the nature of the standards being applied. The standards in Thompson and Ornelas involve legal terminology that can be understood only in the context of
¶ 67. For related reasons, I do not believe that this case is controlled by Miller v. Fenton, 474 U.S. 104 (1985), which involved the voluntariness of a confession. Miller, like Thompson, involves the proper construction of the federal habeas corpus act, 28 U.S.C. § 2254(d), specifically whether a state court determination that a confession is voluntary “shall be presumed to be correct” in a federal habeas corpus action. 474 U.S. at 105-06. Contrary to the majority position, it does not contain a holding that appellate courts should review de novo trial court determinations of voluntariness. It does state that the U.S. Supreme Court has historically done so in appeals taken on certiorari from state courts. Id. at 110-11.
¶ 68. Miller contains important analysis that is inconsistent with the majority’s position. First, the Court noted that while the state court conclusion on voluntariness is not presumed to be correct under § 2254(d), the federal court in a habeas corpus proceeding should “give great weight to the considered conclusions of a coequal state judiciary.” Id. at 112. Thus, Miller should not be cited for the proposition that the Supreme Court favored giving no weight to the state court determination of voluntariness in a de novo review. Indeed, like Ornelas, the decision actually supports giving some deference to state court decisions.
¶ 69. Second, the Court made a number of observations that support deferential review in this case. It noted, “that an issue involves an inquiry into state of mind is not at all inconsistent with treating it as a question of fact.” Id. at 113. It added that “an issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question.” Id. The Court noted that the factfiaw distinction “at times has turned
¶ 70. Finally, the Court noted the uniqueness of determining whether a confession is voluntary, noting that it has two components: (1) “whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means”; and (2) “whether the defendant’s will was in fact overborne.” Id. at 116. The presence of the first component distinguishes the confession cases from others where voluntariness of an act is in question. Indeed, the Court specifically noted that “assessments of credibility and demeanor are not crucial to the proper resolution of the ultimate issue of ‘voluntariness’ ” with respect to confessions, id., I believe, because of the first component. I do not think that generalization is accurate with respect to the voluntariness of a consent to search.
¶ 71. The third reason that the controlling precedents are against de novo review is that the Supreme Court has been inconsistent in requiring de novo review, applying it to some mixed questions of fact and law and not to others, even though the others involve constitutional questions. See B. Adamson, Federal Rule of Civil Procedure 52(a) as an Ideological Weapon?, 34 Fla. St. U. L. Rev. 1025, 1064 (2007) (“Put bluntly, it is difficult to discern a principled reason why this inconsistency exists.”). The majority’s holding that all motions to suppress are reviewed de novo finds no support in the Supreme Court decisions. Even after Ornelas, and even if we were employing an objective standard, and even if we called the determination of voluntariness a mixed question of fact and law rather than a question of fact, it is unpredictable whether the Supreme Court would apply de novo review to the voluntariness of consent. Under these circumstances, it should not be unexpected that the federal courts of appeal have not changed the nature of their appellate review in determining whether consent to search is voluntary.
¶ 72. The situation is the same for the state appellate courts and for the same reason. A majority of states with supreme court decisions on this issue continue to maintain that great deference must be given to a trial court’s determination of whether consent
¶ 73. I agree with the substantial majority of state and federal courts that apply deferential review to a determination of whether consent to search is voluntary. For the reasons given, I do not believe that the U.S. Supreme Court would rule that review of such voluntariness rulings should be de novo. For the additional reasons discussed in the next section of this dissent, I would not follow a contrary U.S. Supreme Court decision if it occurred.
¶ 74. Having stated my position on the narrow question before us, I turn to the broader question of whether we should ever use a de novo standard of review for motions to suppress based on constitutional claims, my response to the broad holding of the majority. In my view, we should not adopt a de novo review standard for multiple reasons.
¶ 75. First, there are no persuasive reasons why we should abandon deferential review of fact questions that determine constitutional rights while maintaining such review for other comparable questions. As discussed above, whether consent to search is voluntary is a question of fact involving a determination of the state of mind of the person who gave consent. Constitutional rights are important, but the consequence of the decision to the litigants may be no less great in other contexts where we defer to the trial judge’s expertise and superior position in evaluating the evidence. Because our deference policy is based on the superior position of the trial judge to evaluate the evidence, a de
¶ 76. It is hard to see the majority decision as anything other than a negative assessment of the quality of fact-finding by trial courts with respect to federal constitutional questions.
¶ 77. It is also important to recognize that the alternative to de novo review is not ineffective review. We operated under a deferential standard of review for many, many years and were able to ensure that the full requirements of the Fourth and Fifth Amendments were implemented. Giving deference to a trial court’s factual determination does not mean that we will uphold it if it is not supported by the evidence or that we will affirm conclusions that are inconsistent with applicable legal standards. A good example of this point is our decision in State v. Roberts, 160 Vt. 385, 388-90, 631 A.2d 835, 837-38 (1993), where defendant challenged successfully an inculpatory statement made to a police officer because the officer stated that the judge would probably consider the statement in determining the amount of bail. After explaining that the trial court’s rulings on voluntariness will be upheld “unless . . . unsupported by the evidence or clearly erroneous,” id. at 388, 631 A.2d at 837, this Court reversed the suppression of the statement because “[providing factual information regarding defendant’s situation does not render the confession involuntary.” Id. at 389-90, 631 A.2d at 838.
¶ 78. Under the majority standard, the one actor whose analysis of the evidence is irrelevant is the trial judge. The result is that
¶ 79. Second, a de novo standard of review wastes limited judicial resources and increases the number of appeals. The standard of review is a significant factor in determining whether to appeal a trial court decision. G. Somerville, Standards of Appellate Review, 15 Litig. 23, 24-25 (1989). A very limited standard of review makes reversal of the trial court decision unlikely; de novo review means that there is no presumption of affirmance. The decision on a suppression motion to exclude evidence obtained in a search and seizure is often determinative of when the State can obtain a conviction. The overwhelming majority of our criminal cases involve publicly funded lawyers who are less concerned with the cost of an appeal than the potential results. With no presumption that the trial court decision is correct, they have every incentive to appeal in virtually all cases. A de novo appeal rule will increase the number of appeals and increase the waste from duplicative adjudications. I do not see this as a positive effect.
¶ 80. The third reason responds directly to the asserted reason for de novo review in Fourth Amendment cases. The Supreme Court in Ornelas reasoned that de novo review is “necessary if appellate courts are to maintain control of, and to clarify, the legal principles.” 517 U.S. at 697, and added that “de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined ‘set of rules.’ ” Id. (quotation omitted). The Court admitted, however, that for legal standards that involve multi-faceted analysis, one case is rarely precedent for another. Id. at 698.
¶ 81. The Supreme Court’s analysis minimizes the effectiveness of deferential review to ensure the fair application of legal
¶ 82. In my opinion, the improved results of de novo review are wishful thinking even if we ignore the loss of the perspective of the judicial officer who heard and saw the evidence. The Court argued that different results from different trial judges on the same facts “would be inconsistent with the idea of a unitary system of law.” Id. The same criticism can be made of different appellate judges who, put in the role of fact-finder, will reach a different result from small variations in facts; and, of course, the makeup of appellate courts will change. Since we adopted de novo review of decisions on motions to suppress, many of our decisions have been divided, a not unexpected result where the Justices are acting as trial judges. As examples of the three-to-two decisions, see State v. Muntean, 2010 VT 88, 189 Vt. 50, 12 A.3d 518; State v. Ford, 2010 VT 39, 188 Vt. 17, 998 A.2d 684; State v. Pitts, 2009 VT 51; State v. Pontbriand, 2005 VT 20, 178 Vt. 120, 878 A.2d 227; State v. Jestice, 2004 VT 65, 177 Vt. 513, 861 A.2d 1060 (mem.). The content of these decisions also underscores my view that it is wishful thinking that de novo appeal decisions will give greater guidance to law enforcement than deferential review decisions. For example, in her dissent (which I joined) in Pontbriand, Justice Johnson noted that in some cases “no single factor is enough to overbear an individual’s will, but the aggregate effect of many subtle, exploitive techniques is a coercive environment powerful enough to elicit an involuntary confession” and described thirteen nonexclusive factors the Colorado Supreme Court had adopted as relevant to a totality of the circumstances inquiry. 2005 VT 20, ¶ 36. As long as we must apply global standards like the totality of circumstances, I doubt our opinions on de novo review give any
¶ 83. The Supreme Court admitted as much in Ornelas, noting that under multi-faceted substantive standards, “one determination will seldom be a useful ‘precedent’ for another,” quoting Illinois v. Gates, 462 U.S. 213, 238 n.11 (1983), but noting occasional exceptions to this rule. 517 U.S. at 698. The presence of occasional exceptions hardly justifies a review standard built around giving law enforcement a set of rules with which to work. See id. at 703 (Scalia, J., dissenting) (“I do not understand why we should allow the exception to frame the rule”).
¶ 84. To summarize, I would hold that we made a mistake in changing our standard of review of trial court suppression decisions to de novo review. Having joined in the mistake, I urge that we correct it. It was particularly a mistake to make such an important decision with little analysis. It was also a mistake on the merits of the question. I think that mistake should be corrected specifically for cases deciding whether consent to search was given voluntarily. I would go further, however, and return to our preexisting standard of review for decisions on motions to suppress asserting constitutional violations. Full consideration of the question, which we failed to do when we changed the standard of review, does not support de novo appellate review. Even if we adopt de novo review, we should specifically adopt and apply the deference component contained in the U.S. Supreme Court decisions. Accordingly, I dissent from this part of the majority decision.
¶ 85. I agree with the majority’s result in this case, but would reach that result based primarily on the conclusion that the trial court’s determination that the consent to search was voluntary was not clearly erroneous. I do not disagree with the majority’s analysis, except in one critical respect. Relying upon an inapplicable holding from Sprague, 2003 VT 20, ¶ 28, the majority states that the voluntariness of consent is determined by an objective standard: “whether a reasonable person in the defendant’s circumstances would . . . have felt free to refuse [consent].” Ante, ¶ 32. Contrary to this formulation, the standard is subjective and requires us to determine whether defendant’s consent was voluntarily given in fact. See supra, ¶ 63. While the difference of standard is not determinative in this case, I believe it is a significant shift that we should not adopt.
Since this is a case decided under the Fourth Amendment, I have limited my discussion to federal constitutional questions. We have also apparently chosen to adopt a de novo standard of review for criminal procedure cases decided under the Vermont Constitution. Again, I believe this change of standard of review is unwise and, in any event, overbroad. I will leave explanation of this position to a future case.
As I discuss infra, the majority holds that we decided to the contrary in Sprague. Ante, ¶¶ 25, 32. That characterization of Sprague is wrong. One of the subsidiary questions in Sprague was whether the defendant was seized, and we explained the federal objective seizure standard — “ ‘whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’ ” Sprague, 2003 VT 20, ¶ 26 (quoting Florida v. Bostick, 501 U.S. 429, 436 (1991)). We applied that standard to the defendant’s circumstances, holding that where the defendant’s position in the police ear was coerced under the Bostick objective standard, that circumstance should be considered in determining whether the defendant’s consent was voluntary. See id. ¶ 28. This is not a holding that voluntariness is determined generally under an objective standard. The majority’s characterizing it so is another example of the hasty and superficial analysis that is in the recent standard-of-review decisions. The point allegedly decided required detailed analysis in light of the United States Supreme Court decisions, an analysis missing from Sprague.
In addition, numerous state appellate courts grant significant deference to the trial court on the issue of voluntary consent. See, e.g., Kennedy v. State, 640 So. 2d 22, 25 (Ala. Crim. App. 1993) (“When the evidence pertaining to the voluntariness of a consent is conflicting, the trial court is in the best position to determine consent or lack thereof. ... On appeal, this court will not disturb the trial court’s finding unless we are convinced that the conclusion is palpably contrary to the weight of the evidence.” (quotation omitted)); Punguk v. State, 784 P.2d 246, 247 (Alaska Ct. App. 1989) (“The voluntariness of a consent to search is a question of fact to be determined by the trial court from the totality of the circumstances in each case. ... [A] trial court’s finding of consent to search must be accepted on appeal unless clearly erroneous.”); State v. Swanson, 838 P.2d 1340, 1344 (Ariz. Ct. App. 1992) (“The trial court’s factual determinations on the issue of giving consent will not be overturned unless clearly erroneous. . . . [W]e conclude that the trial court’s determination that defendant voluntarily consented to the search was not clearly erroneous.”); State v. Breed, 917 So. 2d 206, 209 (Pla. Dist. Ct. App. 2005) (“The voluntariness of the consent to search is a question for the trial court and should not be disturbed on appeal unless the determination is clearly erroneous.”); Corley v. State, 512 S.E.2d 41, 45 (Ga. Ct. App. 1999) (“Normally we would rely upon the decision of the fact finder to determine the issue of consent, and if there was any evidence to support that finding the appellate court would not reverse such finding.” (quotation omitted)); State v. Reynolds, 197 P.3d 327, 333 (Idaho Ct. App. 2008) (‘Whether a consent to a search was voluntary is an issue of fact, and we therefore defer to the trial court’s findings as to voluntariness.”); State v. Jones, 932 N.E.2d 904, 917 (Ohio Ct. App. 2010) (“Even though the state’s burden of proof [for voluntary consent] is ‘clear and convincing,’ this standard of review is highly deferential, and the presence of only some competent, credible evidence to support the trial court’s finding requires us to affirm it.” (quotation omitted)); Commonwealth v. Merbah, 411 A.2d 244, 247 (Pa. Super. Ct. 1979) (recognizing that lower court was not convinced that police action created coercive atmosphere that would render consent involuntary, and stating that “[g]reat deference should be given to the lower court’s decision in light of its unique opportunity to observe the witnesses’ demeanor and thereby assess credibility”).
I am amazed that the majority resists this assessment. If the de novo standard of review is not based on an evaluation of the trial court’s fact-finding on constitutional issues, why did we abandon hundreds of years of precedent to abruptly say that we will give no deference to a trial judge’s fact-finding for certain factual issues? If that is not the motivation for the majority’s ruling, why do we refuse to give even the deference called for in Ornelas? In the end, the only real rationale for the holding is that we trust ourselves to do constitutional fact-finding, but do not trust trial judges enough to give any deference to their findings.