2011 VT 96


State v. Weisler, State v. King
(2010-040, 2010-067)
 
2011 VT 96
 
[Filed 16-Sep-2011]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street,
Montpelier, Vermont 05609-0801 of any errors in order that corrections may be
made before this opinion goes to press.
 

2011 VT 96

 

Nos. 2010-040 & 2010-067

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


District Court of Vermont,


 


Unit No. 1, Windham Circuit


 


 


Michael Weisler


October Term, 2010


 


 


State of Vermont
 
    v.
 
Raymond King
 
 


 


Karen
  R. Carroll, J.


 
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.

 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
BURGESS, J.   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.[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.
I.
¶ 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.[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 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 (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 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 “mixed question of fact and law . . . reviewed by appellate courts using a
two-step approach, deferring to the trial court on questions of historical
fact” while “its determination of whether a defendant’s conduct was objectively
voluntary, is de novo”); State v. Nadeau, 2010 ME 71, ¶ 18, 1 A.3d 445
(“A court’s factual findings addressing the existence of consent are reviewed
for clear error.  The ultimate question of whether the facts, as found,
establish that an individual consented to the ensuing search and seizure is a
distinctly legal question that we will review de novo.” (citation omitted)); State
v. Wilson, 367 A.2d 1223, 1231 (Md. 1977) (“On appeal, we examine the
entire record and make an independent determination of the ultimate issue of
voluntariness.”); State v. Bea, 864 P.2d 854, 860 (Or. 1993) (“In
reviewing the voluntariness of a defendant’s consent to search, this court will
not disturb the trial court’s findings of historical fact if evidence supports
them; this court is not, however, bound by the trial court’s ultimate holding
as to voluntariness, but assesses anew whether the facts suffice to meet
constitutional standards.” (quotation omitted)); State v. Shelton, 990
A.2d 191, 199 (R.I. 2010) (reaffirming rule that reviewing court “defer[s] to
the factual findings of the trial justice, applying a clearly erroneous
standard” but “the determination of the voluntariness of an individual’s
consent to search is reviewed by this Court de novo” (quotation and citation
omitted)); State v. Thurman, 846 P.2d 1256, 1271 (Utah 1993) (holding
that while trial court’s “underlying factual findings will not be set aside
unless . . . clearly erroneous,” appellate court “view[s] the ultimate
conclusion that consent [to search] was voluntary or involuntary as a question
of law, reviewable for correctness”); State v. Phillips, 577 N.W.2d 794,
800 (Wis. 1998) (holding that, in reviewing whether a defendant voluntarily
consented to a search, “[w]e are permitted to independently determine from the
facts as found by the trial court whether any time-honored constitutional
principles were offended” (quotation omitted)).    
¶ 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, [412 U.S. 218, 227 (1973)] that
‘the question whether a consent to search was in fact ‘voluntary’ or was the
product of duress or coercion, express or implied, is a question of fact to be
determined from the totality of all the circumstances.’ ”  6 W.
LaFave, Search and Seizure § 11.7(c), at 449 (4th ed. 2004).  Schneckloth,
however, said nothing specifically about the appropriate standard of appellate
review.  See United States v. Navarro, 90 F.3d 1245, 1256 n.6 (7th
Cir. 1996) (noting that “[a]lthough Schneckloth terms the issue of
consent an issue of fact to be determined from all the circumstances, it does
not speak directly to the standard of appellate review”).  The statement
in Schneckloth was made in the course of exploring the question of “what
must the prosecution prove to demonstrate that a consent [to search] was
‘voluntarily’ given,” 412 U.S. at 223, and the bulk of the Court’s discussion
was given to reviewing and adopting the test governing the voluntariness of
confessions, where the Court had long held that judges should assess “the
totality of all the surrounding circumstances—both the characteristics of the
accused and the details of the interrogation.”  Id. at 226; see
generally Comment, Voluntariness of Consent to Search, 87 Harv. L. Rev.
213, 215 (1973) (observing that the Court’s analysis in Schneckloth led
it “to conclude that the voluntariness of a confession is a question of fact
which has always involved a consideration of all the surrounding
circumstances”).        
¶ 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 121 (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 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.  See Thompson,
516 U.S. at 112 n.11 (observing that, contrary to the respondents’ suggestion,
“[t]he ‘totality of the circumstances’ cast of the ‘in custody’ determination .
. . does not mean deferential review is in order”).[4]     
¶ 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.[5] 
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.”  Id.  Eschewing 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 sound administration of justice, one
judicial actor is better positioned than another to decide the issue in
question.”  Id. at 114.   
¶ 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 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.  See Muehler v. Mena, 544 U.S. 93, 98 n.1 (2005)
(reaffirming rule that, in determining whether a Fourth Amendment violation
occurred, “as we made clear in Ornelas [v. Untied States, 517 U.S. 690
(1996)] . . . we do not defer to the jury’s legal conclusion”); Cooper
Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001)
(holding that constitutionality of jury’s punitive damage award is subject to
de novo review).
¶ 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.
¶ 17.        
In addition, 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.  Indeed, 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 (quotation omitted).  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.   
¶ 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.  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. at 1271
(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 “analogous” issue to voluntariness of a
confession and thus, as in Miller, presents a “legal question that we
will review de novo”); Turner v. State, 754 A.2d 1074, 1080 (Md. Ct.
Spec. App. 2000) (relying on Ornelas to hold that consent to search
implicates a “constitutionally protected right” requiring independent review
(quotation omitted)); State v. Stevens, 806 P.2d 92, 103 (Or. 1991)
(relying on its holding in State v. Warner, 585 P.2d 681, 686 (Or.
1978), that a reviewing court has a “duty to interpret constitutional standards
and require conformance thereto” and concluding that, as to voluntariness of
consent to search, reviewing court must “assess anew whether the facts suffice
to meet constitutional standards”); Shelton, 990 A.2d at 199 (relying on
Ornelas to hold that “the voluntariness of an individual’s consent to
search is reviewed by this Court de novo”). 
¶ 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[s] for when constitutional fact review
should be applied,” so that every issue with a constitutional dimension does
not necessarily acquire de novo status.  Hoffman, supra, 50 Duke
L.J. at 1434; see also Monaghan, supra, 85 Colum. L. Rev. at 264 (citing
the “extraordinary variety of contexts” in which the issue may arise). 
The concern is a real one, but it has been addressed.  As noted, beginning
with Miller the high court has articulated and applied a reasonably
coherent standard-of-review jurisprudence, focusing on the respective
competencies of trial and appellate courts to resolve the issue, the need for
precedential decisions to guide police and judicial decisionmakers, and the
nature and relative importance of the values underlying the constitutional
claim.  Moreover, while the high court has extended independent review to
a number of additional areas, see, e.g., United States v. Bajakajian,
524 U.S. 321, 337 n.10 (1997) (review of Eighth Amendment claim subject to de
novo review), it has also had no difficulty holding some issues to be more
appropriate for deferential review.  See Thompson, 516 U.S. at 111
(reaffirming its earlier decisions in Maggio v. Fulford, 462 U.S. 111,
117 (1983) (per curiam), and Wainwright v. Witt, 469 U.S. 412, 429
(1985), that issues of competency to stand trial and juror impartiality,
respectively, “depend[] heavily on the trial court’s appraisal of witness
credibility and demeanor” and therefore warrant deferential review); Minnesota
v. Olson, 495 U.S. 91, 100 (1990) (stating that the Court was “not inclined
to disagree with [state court’s] fact specific” decision as to whether exigent
circumstances to prevent either escape or destruction of evidence justified
warrantless entry); see also State v. Byrge, 2000 WI 101, ¶¶ 43-44, 614
N.W.2d 477 (applying high court’s holdings in Miller and Thompson
to conclude that the ultimate resolution of defendant’s competency to stand
trial rests on trial court’s observations of witness credibility and demeanor
and therefore is subject to clearly erroneous standard).
    
¶ 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 it is a
question of fact to be determined from the totality of the circumstances”
(quotation and citation omitted)).  As we have seen, however, the
voluntariness of a confession “is uniformly held to be subject to de novo
review.”  Tompkins, 130 F.3d at 121 n.10.  Thus, any logical
coherence in grounding deferential review of consent to search on Schneckloth’s
characterization of the question as one of fact is illusory.    
¶ 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 de 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.[6]  As with the facts surrounding a
confession, the voluntariness of a consent to search focuses on a variety of
objective factors relating to the suspect’s age, mental ability, and experience
and the environment in which the consent was obtained, including the location
and length of the stop, the use of physical restraint, threats or intimidation,
and whether the suspect was informed of his or her right to withhold
consent.  See United States v. Golinveaux, 611 F.3d 956, 959 (8th
Cir. 2010) (enumerating factors relevant to voluntariness analysis); Sprague,
2003 VT 20, ¶¶ 28-29 (concluding that consent was not voluntary based on
certain “inherently coercive” factors including defendant’s initial seizure,
officer’s “show of authority,” the location of the stop, and the absence of
warnings that defendant could refuse consent).  The ultimate question is
whether “a reasonable person in defendant’s circumstances” would have felt free
to refuse the officer’s request.  Sprague, 2003 VT 20, ¶ 28. 
Thus, once the underlying historical facts are determined, issues of
credibility and demeanor (the province of the trial court) are not central to
the ultimate decision.  See Thompson, 516 U.S. at 113 (observing
that “[c]redibility determinations, as in the case of the alleged
involuntariness of a confession, may sometimes contribute to the establishment
of historical facts” but the “crucial question entails an evaluation made after
determination of those circumstances” as to how a “reasonable person” would
have understood the situation).
¶ 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 maintain individual dignity—a
declaration of constitutional norms and values that demands statewide force and
application.  These are functions that only a reviewing court with broad
jurisdiction and authority can perform.  Accordingly, we hold that a trial
court’s decision on the question of the voluntariness of a consent to search,
and thus the ultimate constitutional validity of the search, must be reviewed
independently by this Court on appeal. 
¶ 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)
(“[W]e . . . adopt Thompson’s rationale and apply de novo review to the
ultimate Miranda custody determination on direct appeal.”); State v.
Oney, 2009 VT 116, ¶ 13 n.6, 187 Vt. 56, 989 A.2d 995 (relying on Thompson
to hold that “in custody” determination is “subject to independent
review”).  Thompson has also been cited as instructive in other
fact/law contexts, including issues of voluntariness.  See P. Rutledge,
Comment, The Standard of Review for the Voluntariness of a Confession on
Direct Appeal in Federal Court, 63 U. Chi. L. Rev. 1311, 1335 (1996)
(“Under the Thompson conception of the mixed question analysis, an
appellate court should review the voluntariness determination de novo.”). 

¶ 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 the tools to reach the 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, ¶¶ 61, 64.  The argument is demonstrably
incorrect.  This and other courts have repeatedly recognized that the
fundamental inquiry in the consent-to-search context is whether “a reasonable
person in the defendant’s circumstances
would . . . have felt free to refuse.”  Sprague,
2003 VT 20, ¶ 28 (emphasis added); see also State v. Stevens, 2004 VT
23, ¶16, 176 Vt. 613, 848 A.2d 330 (mem.) (applying “reasonable person”
standard to hold that atmosphere was not so inherently coercive as to prevent
voluntary consent to search).  As noted, decisions far too numerous to
cite in toto apply the identical standard.  See, e.g, United States v.
Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007) (“The central question in determining
whether consent to a search is voluntary is ‘whether the police conduct would
have communicated to a reasonable person that the person was not free to
decline the officers’ request’ ” (quoting Florida v. Bostick, 501
U.S. 429, 439 (1991)); United States v. Butler, 102 F.3d 1191, 1197
(11th Cir. 1997) (observing that decision on whether consent to search was
voluntary requires consideration of whether “ ‘the police conduct would
have communicated to a reasonable person that the person was not free to
decline the officer’s request’ ” (quoting Bostick, 501 U.S. at
439)); State v. Bell, 557 N.W.2d 603, 607 (Minn. Ct. App. 1997)
(determining whether consent to search was voluntary “requires the court to ask
whether a reasonable person would have felt free to refuse the officer’s
request”); State v. Cromer, 186 S.W.3d 333, 347 (Mo. Ct. App. 2005) (in
determining whether consent to search was voluntary, court must “determine
whether the police conduct would have . . . communicated to a reasonable person
that the person was not free to decline the officers’ requests”); State v.
Jones, 932 N.E.2d 904, 916 (Ohio Ct. App. 2010) (determining whether
consent to search was freely given requires “an objective test, and the proper
inquiry is whether a reasonable person would feel free to decline the officers’
requests” (quotation omitted)). 
¶ 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 objective
one, the maturity, sophistication and mental or emotional state” of the
defendant may be taken into account).  Thus, as noted, appellate courts
have traditionally reviewed and resolved independently the question of
voluntariness in order to “guide police, unify precedent, and stabilize the
law.”  Thompson, 516 U.S. at 100; see also Strickler, 757
A.2d at 901 (observing that the test for voluntariness “centrally entail[s] an
examination of the objective circumstances surrounding the police/citizen
encounter” to determine the “impact upon a reasonable citizen-subject’s
perspective”).   
¶ 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.[7]  The trial court found in this
regard that “n[o] evidence was presented at the evidentiary hearing to
substantiate that this is why Stone gave consent to search his vehicle or that
he considered this in any way,” and the court declined to “speculate” that
“this set of circumstances is what caused Stone to give consent to search the
vehicle.”  As we have explained, however, the question here is not what
subjectively motivated Stone to give consent, but whether a reasonable person
in his position would have felt so threatened by the armed subjugation of his
colleagues that any subsequent consent to search could not be freely
given.  Sprague, 2003 VT 20, ¶ 28.[8]  
¶ 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 ability to consent overborne.  See United States v.
Taylor, 31 F.3d 459, 464 (7th Cir. 1994) (observing that, “[t]hough
certainly unpleasant,” officers’ forced entry at gunpoint, display of weapons
and badges, and forcible restraint of defendant were “commonly used” tactics to
protect officer safety and did not vitiate voluntariness of subsequent
consent).  The conversation leading to Stone’s consent occurred about five
minutes after the incident, in the trooper’s vehicle and in an atmosphere of
relative calm.  In that discussion, the officer assured Stone several
times in a level and conversational tone that he was not required to consent to
a search of his car.  He stated, “I want to make it abundantly clear to
you that you don’t have to allow this.”  Although we have held that the
police are not required to advise a suspect of his or her right to withhold
consent, the giving of such advice supports the conclusion that the consent was
voluntary.  Sprague, 2003 VT 20, ¶ 29; see also United States v.
Mendenhall, 446 U.S. 544, 558-59 (1980) (although Constitution did not
require it, fact that suspect was twice informed of her right to withhold
consent to search “was highly relevant to the determination that there had been
consent”).  Stone also signed a consent-to-search form, which—while not
dispositive—also supports a finding of voluntariness.  See Taylor,
31 F.3d at 463 (fact that suspect signed consent-to-search form “weighs heavily
toward finding that his consent was valid”).     
¶ 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 arrest without probable
cause—thereby rendering his consent to search involuntary and “tainting” any
evidence obtained therefrom.  See Sprague, 2003 VT 20, ¶¶ 31-33
(holding that illegal seizure tainted defendant’s subsequent consent to
search); State v. Chapman, 173 Vt. 400, 403, 800 A.2d 446, 449 (2002)
(recognizing that an investigative detention may become so intrusive as to
become “the functional equivalent of a formal arrest”).  Even if the circumstances
supported defendants’ claim that Stone was under de facto arrest, however, it
would not necessarily render his consent involuntary or the evidence
inadmissible.  First, “custody alone has never been enough in itself to
demonstrate a coerced confession or consent to search.”  United States
v. Watson, 423 U.S. 411, 424 (1976).  Indeed, as noted earlier, this
and other courts have consistently held that “consent may be properly deemed
voluntary even when a suspect is handcuffed and under arrest.”  Sole,
2009 VT 24, ¶ 24; accord Jones, 523 F.3d at 38-39 (upholding
voluntariness of consent of suspect who had been handcuffed, Mirandized
and questioned in custody); Taylor, 31 F.3d at 463-64 (finding that
consent to search was voluntary after defendant was detained and read his Miranda
rights); State v. Harmon, 910 P.2d 1196, 1208 (Utah 1995) (upholding
voluntariness of consent from suspect who was under arrest and in
handcuffs).  Although Stone was in detention, nothing in the record
suggests that he was subjected to any form of police coercion in granting
consent to search the vehicle.  
¶ 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 might have
remained a simple roadside inquiry during a routine traffic stop into an
interrogation under circumstances approximating arrest”).
¶ 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 officer 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 experience to identify them
as such.  See, e.g., State v. Delaoz, 2010 VT 65, ¶ 20, ___ Vt.
___, 22 A.3d 388; Guzman, 2008 VT 116, ¶¶ 12-15.  The testimony and
affidavit of the investigating officer here stated that he initially observed green
flakes on defendant Weisler which, according to his training and experience, he
believed to be marijuana.  He later observed in plain view on the floor of
the vehicle a roll of cellophane wrap and a large clear baggie containing a
white powder which, based on his training and experience, the officer believed
to be cocaine.  Many courts have found similar factual scenarios
sufficient to support a finding of probable cause to arrest.  See, e.g., Blackmon
v. United States, 835 A.2d 1070, 1075 (D.C. Cir. 2003) (experienced officer
had probable cause to arrest for possession of cocaine upon observing bag in
vehicle containing white rock-like substance, and was not required to field
test substance before arrest); United States v. Rosario, 638 F.2d 460,
462 (2d Cir. 1980) (officer’s observation of suspect furtively carrying plastic
bag containing white substance to vehicle supported probable cause to arrest
for possession of cocaine); State v. Jackson, 778 So. 2d 23, 28-29 (La.
Ct. App. 2000) (finding probable cause based on experienced officer’s
conclusion that plastic bag containing white powder on floor of suspect’s car
was cocaine); Commonwealth v. Santana, 649 N.E.2d 717, 722 (Mass. 1995)
(trained officer had probable cause to seize clear plastic bag containing white
substance observed during traffic stop where “its incriminating character was
immediately apparent” (quotation omitted)); State v. Flores, 996 A.2d
156, 162-64 (R.I. 2010) (finding probable cause to arrest where, during traffic
stop, officer observed two clear plastic bags containing white substance in
car’s center console).    
¶ 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,[9]
were sufficient to establish probable cause to arrest.[10]  We thus find no merit to the claim
that Stone’s consent was irremediably tainted by an illegal de facto arrest,
and no basis to disturb the judgment.
Affirmed.  
  

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 45.         DOOLEY,
J., 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.[11]  For purposes of this larger point,
I conclude that this Court has the power to establish the standard of review,
even for Federal Constitutional questions and even in the face of a contrary
standard-of-review decision from the U.S. Supreme Court.  I would follow a
number of decisions from state supreme courts that have taken this position,
and the view of many commentators.  See Clark v. State, 287 S.W.3d
567, 572 (Ark. 2008); State v. Ford, 738 A.2d 937, 941 (N.H. 1999); State
v. Brockman, 528 S.E.2d 661, 664-65 (S.C. 2000); State v. Thurman,
846 P.2d 1256, 1265-71 (Utah 1993); 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 (stating it is a mistake for state court to assume it is bound by U.S.
Supreme Court decisions requiring de novo review).  There is no
controlling U.S. Supreme Court precedent on this point.  
¶ 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?
¶ 50.         We
are, however, not omnipotent, and we have to accept that other judicial
officers may have a better and more informed perspective on a case than we
do.  We develop limitations on our review responsibility with that point
in mind.  The central thesis of standards of review is that we should not
allocate decisional responsibility based on power and stature, but instead on systems
that best produce accurate and fair decisions of high quality.  Those
systems are not infallible either, and they occasionally produce results that
appear to us to be wrong.  As difficult as it may be to accept the
apparently wrong decisions, overall the quality of decision-making is enhanced
by the system.
¶ 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 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 the witnesses” and that therefore “the trial court’s
findings must stand if they are supported by substantial credible evidence and
are not clearly erroneous”); State v. Badger, 141 Vt. 430, 444, 450 A.2d
336, 344 (1982) (“Voluntariness [of consent] must be evaluated on a factual
basis . . . . [T]he State has not met its burden on appeal,
and . . . there are ample factual findings to support the trial court’s
conclusion.”).
¶ 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 (1996), 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 consideration of those questions, including whether a person
is “in custody,” is de novo.  Thompson, 516 U.S. at 116. 
While Thompson may suggest the policy preferences of the Supreme Court,
it is a statutory construction case that does not directly involve the issue
before us.  It is fundamentally about whether federal courts, particularly
trial courts, should give deference to mixed fact-and-law determinations of
state courts, not whether appellate courts should give deference to
determinations of trial courts.
¶ 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 “[a]rticulating 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”);
see, e.g., United States v. Pineda-Buenaventura, 622 F.3d 761, 776 (7th
Cir. 2010) (“We review a district court’s finding of voluntary consent for
clear error.”); United States v. $231,930.00 in U.S. Currency, 614 F.3d
837, 844 (8th Cir. 2010) (“We review the district court’s determination of
whether a voluntary consent to a search was given under the clearly erroneous
standard.” (quotation omitted)); United States v. Snype, 441 F.3d 119,
131 (2d Cir. 2006) (“In considering a challenge to a district court finding of
consent, we are obliged to view the evidence in the light most favorable to the
government. We will not reverse a finding of voluntary consent except for clear
error.” (citation omitted)); United States v. Fornia-Castillo, 408 F.3d
52, 62 (1st Cir. 2005) (“Typically, whether consent is voluntary turns on
questions of fact, determinable from the totality of the circumstances.
 For that reason, a finding of voluntary consent (other than one based on
an erroneous legal standard) is reviewable only for clear error, and the trial
court’s credibility determinations ordinarily must be respected.” (quotation
omitted)); United States v. Carter, 300 F.3d 415, 423 (4th Cir. 2002)
(“When the government justifies a warrantless search under the ‘voluntary
consent’ exception to the 4th Amendment’s warrant requirement, the district
court’s factual determination as to whether consent to the search was actually
given is reviewed for clear error.”); United States v. Zubia-Melendez,
263 F.3d 1155, 1162 (10th Cir. 2001) (“Whether voluntary consent was given is a
question of fact, determined by the totality of the circumstances and reviewed
for clear error.”); United States v. Van Shutters, 163 F.3d 331, 335
(6th Cir. 1998) (“This court will accept a finding of voluntary consent unless
it is clearly erroneous.”); United States v. Cannon, 29 F.3d 472, 477
(9th Cir. 1994) (“We review the district court’s finding that [defendant]
voluntarily consented to the search for clear error. Voluntariness is a
question of fact to be determined from the totality of the circumstances.”
(citation omitted)).  I do not believe that this Court is required to
follow Ornelas even for the issues directly involved in the
decision—probable cause and reasonable suspicion.  The federal courts are,
however, bound by the review standard for Ornelas, but few have been
willing to extend it to whether consent to a search is voluntary, a comparable
Fourth Amendment issue.
¶ 59.         The
majority takes me to task for not acknowledging that there are contrary
decisions.  I readily acknowledge that fact but emphasize that the
majority has adopted a rule supported by only a relatively small minority of
courts around the country, a point the majority does not concede.
¶ 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 State 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
voluntarily given is a factual issue to be decided by the trial judge; and the
appellate court should reverse only when it finds that determination to be
clearly erroneous.”); McFadden v. Commonwealth, 300 S.E.2d 924, 926 (Va.
1983) (“[V]oluntariness is a factual question. The determination of such issue
by the trial court on conflicting evidence will not be disturbed on review
unless plainly wrong.  Here, the factual decision turned on the
credibility of witnesses—the law enforcement authorities versus the accused . .
. .” (citation omitted)).
¶ 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 695 (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.
¶ 64.         The
issue in this case—whether defendant’s consent to search was voluntary—is
almost entirely subjective, based on all the relevant circumstances.  See Schneckloth
v. Bustamonte, 412 U.S. 218, 229-30 (1973) (describing all the surrounding
circumstances a court must consider including the “possibly vulnerable
subjective state of the person who consents”; the object of the inquiry is “the
nature of a person’s subjective understanding”); United States v. Zaleski,
559 F. Supp. 2d 178, 185 (D. Conn. 2008) (in determining voluntariness, the
court “does not apply an objective standard”); Basnueva v. United States,
874 A.2d 363, 369 (D.C. 2005) (“test is subjective”).[12]  The majority’s holding that
voluntariness is an objective inquiry is a direct warring with Schneckloth,
the controlling Supreme Court case, and is unwise.  I understand that some
courts have adopted the majority’s rule, apparently based primarily on Florida
v. Bostick, 501 U.S. 429, 439 (1991), a case that does not address whether
voluntariness of consent is determined under an objective or subjective
standard.  In my view, these decisions are wrongly decided to the extent
they generally decide that voluntariness of consent is always determined under
an objective standard.    
¶ 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 the many court decisions defining
it and the origin and purposes of the standards.    The Court
observed in Ornelas that “[a]rticulating precisely what ‘reasonable
suspicion’ and ‘probable cause’ mean is not possible,” and that these were
“fluid concepts that take their substantive content from the particular
contexts in which the standards are being assessed.”  Id. at
695-96.  I do not think that either of these observations fairly applies
to a determination of whether a consent to search is voluntary. 
Voluntariness should be determined primarily from the evidence and the common
sense meaning of the word and not from appellate opinions.  The
perspective of the trial judge should play an important role in evaluating that
evidence.
¶ 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 fact/law distinction
“at times has turned on a determination that, as a matter of sound
administration of justice, one judicial actor is better positioned than another
to decide the issue in question.”  Id. at 114.  All of these
observations cut against de novo review in this case.
¶ 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 perceive 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 was voluntary.[13]  See, e.g., Chism v. State,
853 S.W.2d 255, 260 (Ark. 1993) (“We affirm a finding of voluntariness [of
consent] unless that finding is clearly against the preponderance of the evidence.”);
People v. James, 561 P.2d 1135, 1139 (Cal. 1977) (“The question of the
voluntariness of the consent is to be determined in the first instance by the
trier of fact . . . . The power to judge credibility of witnesses, resolve
conflicts in testimony, weigh evidence and draw factual inferences, is vested
in the trial court.  On appeal . . . the trial court’s findings . . . must
be upheld if supported by substantial evidence.” (quotation omitted)); People
v. Brazzel, 18 P.3d 1285, 1289 (Colo. 2001) (“We defer to the trial court’s
findings of fact on the issue of voluntary consent, unless they are clearly
erroneous.”); State v. Cobb, 743 A.2d 1, 27 (Conn. 1999) (“Whether there
was valid consent to a search is a factual question that will not be lightly overturned
on appeal.  The state has the burden to establish the voluntariness of the
consent, and the trial court’s finding in that regard will not be upset by this
court unless clearly erroneous.” (quotation omitted)); Knight v. State,
690 A.2d 929, 932 (Del. 1996) (“The trial judge’s determination that a
defendant’s consent was voluntary will not be set aside on appeal unless that
finding is clearly erroneous.”); State v. Ganal, 917 P.2d 370, 380 (Haw.
1996) (“On appellate review, the findings of a trier of fact regarding the
validity of a consent to search must be upheld unless clearly erroneous.”); People
v. Pitman, 813 N.E.2d 93, 109 (Ill. 2004) (“When the evidence on the issue
of consent is conflicting, this court will uphold the circuit court’s finding
unless it is clearly unreasonable.”); Pate v. Commonwealth, 243 S.W.3d
327, 330 (Ky. 2007) (“Whether consent is the result of express or implied
coercion is a question of fact . . . and thus, we must defer to the trial
court’s finding if it is supported by substantial evidence.” (quotation
omitted)); State v. Wilson, 467 So. 2d 503, 518 (La. 1985) (“The
voluntariness of defendant’s consent to search is a question of fact to be
determined by the trial judge under the facts and circumstances surrounding each
case and the trial court’s determinations as to the credibility of witnesses is
to be accorded great weight on appeal.”); Commonwealth v. Carr, 936
N.E.2d 883, 890 (Mass. 2010) (“Because a finding of voluntariness is a question
of fact, it should not be reversed absent clear error by the judge.”); Logan,
773 So. 2d at 343 (“When [the trial court’s voluntary consent] ruling is
contested on appeal, an appellate court may set aside that ruling only if that
court is satisfied that the trial court was manifestly wrong in so deciding.”);
State v. Patch, 702 A.2d 1278, 1282 (N.H. 1997) (“In reviewing a trial
court’s finding of voluntary consent, we will not overturn the finding unless
it is without support in the record.” (quotation omitted)); King, 209
A.2d at 114 (“[T]he determination whether consent was voluntarily given is a
factual issue to be decided by the trial judge; and the appellate court should
reverse only when it finds that determination to be clearly erroneous.”); State
v. Paul T., 1999-NMSC-037, ¶ 28, 993 P.2d 74 (“Whether consent was
voluntarily given is a factual question, and the trial court’s determination
will not be disturbed on appeal unless it is not supported by substantial
evidence.”); State v. Genre, 2006 ND 77, ¶ 30, 712 N.W.2d 624 (“Voluntariness
is a question of fact to be resolved by the trial court, and because the trial
court is in a superior position to judge credibility and weight, we show great
deference to the trial court’s determination of voluntariness.” (quotation
omitted)); State v. Leigh, 2008 SD 53, ¶ 16, 753 N.W.2d 398 (noting that
trial court found no valid consent, and that supreme court would not reverse
“even if we were convinced that the opposite finding would have been made had
we been the fact finders, unless in light of the entire record we are left with
a definite and firm conviction that a mistake has been made” (quotation and
alteration omitted)); McFadden, 300 S.E.2d at 926 (“The determination of
[voluntariness] by the trial court on conflicting evidence will not be
disturbed on review unless plainly wrong.”); State v. Buck, 294 S.E.2d
281, 285 (W.Va. 1982) (“[A] trial court’s decision regarding the voluntariness
[of consent to search] will not be disturbed unless it is plainly wrong or
clearly against the weight of the evidence.” (quotation omitted)).  
¶ 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 novo standard necessarily lessens the quality of
the decision making.  There is no evidence that fact-finding by this Court
will result in better or more accurate decisions than those by trial
judges.  The whole point of our standard-of-review jurisprudence is that
it will not.  Thus, we are in the internally inconsistent position of
reducing the quality of fact-finding because the facts involved are
particularly important.
¶ 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.[14] 
I see nothing in our decisions, or the many records we read, to support this
assessment.  
¶ 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 “[p]roviding 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 no one will evaluate
the demeanor of the witnesses and the inferences that can be made from their
presentation.  That loss is very significant in a case like this because
defendant’s claims are that the statements and actions of the officer were
coercive, and that officer’s testimony is the record before us.  Because
only their ultimate conclusion matters, trial judges have no incentive to
provide a detailed analysis of the evidence where there is de novo review, and
they are less likely to do so.  As I discussed above, not even the U.S.
Supreme Court has gone that far in reducing the role of the trial court.  Ornelas
held that appellate courts should “give due weight to inferences drawn from
[historical facts] . . . by resident judges.”  517
U.S. at 699.  The majority ignores that part of the Ornelas holding
in requiring full de novo review.
¶ 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 principles and the full consideration of
all relevant factors.  Deferential review does not mean no review, as I
discussed above using our decision in State v. Roberts as the
example.  We give no deference in determining the applicable law and in
being sure it is applied.  We give no deference if the trial court’s conclusion
is not supported by its findings or if the findings are inadequate.  Even
where we give deference to the trial court’s conclusion, we may reverse that
conclusion if we conclude that the trial court went beyond its
discretion.  In my opinion, our traditional standard of review results in
a defined set of rules for guidance of trial courts and law enforcement
officials.  The whole point of deferential review is for the appellate
court “to maintain control of, and to clarify, the legal principles.”  Ornelas,
517 U.S. at 697.
¶ 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, ___ Vt. ___, 12 A.3d 518; State v. Ford, 2010 VT 39, 188 Vt. 17, 998
A.2d 684; State v. Pitts, 2009 VT 51, 186 Vt. 71, 978 A.2d 14; 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.  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 better guidance to persons who must apply our decisions in
their everyday conduct.  
¶ 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,
¶ 31.  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.

 


 


 


 


 


Associate Justice

 







[1] 
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.    


[2] 
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.    
 


[3] 
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.). 


[4] 
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).   
 


[5] 
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). 


[6] 
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 yet expressly stated, nor otherwise eliminated
substantial doubt, in whole or part [that] such review is constitutional
doctrine and thus binding on both federal and state appellate
courts”).   


[7] 
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.


[8] 
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.    


[9] 
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 wrap which “is commonly used to wrap marijuana,”
supported reasonable suspicion that van contained contraband); Servis v.
Commonwealth, 371 S.E.2d 156, 158, 165 (Va. Ct. App. 1988) (holding that
cellophane seized in connection with small amounts of marijuana and cocaine was
part of “paraphernalia used in the packaging process” and therefore relevant to
demonstrating intent to distribute (quotation omitted)).  
  


[10] 
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.


[11] 
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.


[12] 
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, 435 (1991)). 
We applied that standard to the defendant’s circumstances, holding that where
the defendant’s position in the police car 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.


[13] 
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 (Fla. 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”).


[14] 
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.



