Validity of Consent To Search | Vermont v. Weisler

The Vermont Supreme Court holds xx

The Constitutional Question

The Legal Answer(s)

A xx majority opinion reversed the appellate court decision finding:

The Facts

Traffic Stop

A Vermont state trooper monitoring traffic on an Interstate. He observed a vehicle traveling northbound without its rear license plate illuminated. The officer stopped the vehicle.

People

The vehicle had three occupants. The driver was Timothy Stone. Michael Weisler was in the front passenger seat. And Raymond King, was in a rear passenger seat.

Request for Driver's License

The officer asked for Stone's license and registration. Her also inquired about his travel plans.

Marijuana Flakes on Shirt

The officer observed what he believed to be “marijuana flakes” on Weisler's shirt. Accordingly, the officer asked Stone to exit the vehicle. Then he did a pat down search and placed him in his cruiser while he ran his license. this revealed a prior drug arrest.

The Driver is Questioned

The officer asked stone about prior the drug arrest and how much marijuana he had in the car. Stone denied any marijuana being in the vehicle. Then officer left to speak with the passengers while Stone remained seated in the cruiser.

Weisler Asked For Identification

The officer asked Weisler for identification. Weisler stated it was behind the seat. Then the officer asked Weisler to exit the vehicle.

Officer See Drugs

Weisler reached under the seat. At this time, the officer alleges that he sees a box of cellophane wrap on the floor. There was also a clear baggie of white powder. the officer believed to be cocaine.

Officer Draws Gun

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.

Handcuffed and Searched.

Both men were handcuffed and searched. Stone had an opportunity to observe these events from where he was seated in the cruiser.

Request to Search

The officer returned to the cruiser. He informed Stone that there was “a big bag of cocaine” in his car, assured him that none of the men were under arrest. He also said that he would like to search the car “with your consent.”

Informed of Right to Refuse

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.

But...A Search Warrant

The officer also stated that he would “attempt [ ] to obtain a search warrant from a judge” if Stone did not allow the search.

Consent Obtained

Stone said 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.

Drugs Found

The police then searched the vehicle, seizing a bag of white powder along with straws and razor blades from the glove compartment. The powder later tested positive for cocaine.

Criminal Charges

All three men were charged with possession of cocaine.

Procedural History

Fourth Amendment Challange

Prior to trial, the men 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.

The trial court denied the motion. It determined 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.

Decision Highlights

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The Threshold Dispute

Before turning to the merits of the case the court addressed what it called the threshold dispute between the parties - the appropriate standard of review.

The Defense's Claim - De Novo 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.

The Government's Claim - Clear Error Review

The State asserted the dependents' claims were a question of fact. Consequently, it should be 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).

"We Do Not Write on a Blank Slate"

The Court noted that the same question arose in connection with consent to search in a prior case (State v. Sprague, 2003 VT 20, ¶ 24, 175 Vt. 123, 824 A.2d 539). There, the Court acknowledged, there was 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.

However, since that decision, in at least two decisions the Court definitively endorsed the “two-step”, where 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 .

Standard of Review Issue - Unexamined Layers of Complexity

While it have seemed settled, the standard-of-review issue conceals layers of complexity largely unexamined by the Court’s earlier decisions. The Court admitted it’s prior approach 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 - Not Unique to Vermont

Lack of clarity on the topic is not unique to this jurisdiction. The U.S. Supreme Court has 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.”

Most federal courts have applied a clearly erroneous standard to the voluntary-consent issue, although the decisions are not monolithic.

The Two-Step Approach - By State Courts

Many state courts have adopted the two-step approach, 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.

Context is Critical

Context is critical because the standard of review governing the voluntariness of confessions — at the time of Schneckloth and since — is generally de novo .

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 .

Totality of the Circumstances

Simply labeling consent to search as a question of fact to be determined from the totality of the circumstances, therefore, does little to advance the standard-of-review analysis.

Recent Supreme Court Decisions

More recent Supreme Court decisions, starting with Miller v. Fenton , offer additional guidance. There, the Supreme 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.

"An Inquiry Into State of Mind"

In so holding, the Court readily acknowledged that the voluntariness question did not lose its “factual character” merely because it involved “an inquiry into state of mind” or “because its resolution is dispositive of the ultimate constitutional question.”

Where The Issue Falls...

Avoiding reliance on labels, the Court candidly explained that, “[a]t least in those instances in which ... the issue falls somewhere between a pristine legal standard and a simple historical fact,” deciding the appropriate standard of review pivots on the basic “determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.”

Complex of Values

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.”

A Constitutional Responsibility

The Supreme Court 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 fact-finding function be performed in the particular case by a jury or by a trial judge.” 466 U.S. 485, 501, 104 S.Ct. 1949 (1984).

Independent Review on Appeal

Regardless of whether the trial court alone determines the voluntariness of a confession or, as in Vermont, the trial court makes the initial determination and subsequently submits the issue to the jury to decide “whether to rely on the confession,” State v. Caron , 155 Vt. 492, 503, 586 A.2d 1127, 1133 (1990), the Supreme Court views the ultimate question of voluntariness to be a matter for independent review on appeal.

Supreme Court - Refined its Functional Approach

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. The Court applied similar factors and reasoning in reaching its conclusion in both cases.

Objective Factors

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, 116 S.Ct. 457.

Historical Facts + Objectively Reasonable Police Officer

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, 116 S.Ct. 1657. 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, 116 S.Ct. 1657; Thompson , 516 U.S. at 113–15, 116 S.Ct. 457.

Independent Review - Provides Useful Precedents

The Court found that independent review by appellate courts provides useful precedents to “guide future decisions” as well as to “guide police, unify precedent, and stabilize the law.” Thompson , 516 U.S. at 114–15, 116 S.Ct. 457.

Unify Precedent

The very fact-specific nature of the inquiry, the Court observed in Ornelas , underscores the importance of independent review. “[T]he legal rules for probable cause and reasonable suspicion acquire content only through application,” the Court explained; thus, de novo review offers the greater opportunity to “unify precedent” and provide law enforcement officers with guidelines “to reach a correct determination beforehand.” Ornelas , 517 U.S. at 697, 116 S.Ct. 1657.

Rejecting a Policy of "Sweeping Deference"

These considerations, together with the Court's fundamental reluctance to cede Fourth Amendment jurisprudence to the rulings of “different trial judges draw[ing] general conclusions that the facts are sufficient or insufficient” to meet the reasonableness standard, led it to reject the policy of “sweeping deference” advocated by the government. Id. (quotation omitted).

Many State Courts Now Favor Independent Review

A 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.

Utah Supreme Court

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.

The “Ultimate Voluntariness Determination"

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.

A Uniform Meaning of Voluntariness

The Utah court's reasoning echoes that of the Supreme 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. 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.