2013 VT 53


State v. Betts (2011-371)
 
2013 VT 53
 
[Filed 02-Aug-2013]
 
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 by email at: JUD.Reporter@state.vt.us or by
mail at: 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.
 
 

2013 VT 53

 

No. 2011-371

 

State of Vermont 


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Rutland Unit,


 


Criminal Division


 


 


Asim Betts


October Term, 2012


 


 


 


 


Theresa
  S. DiMauro, J. (motion to suppress); Cortland Corsones, J. (final judgment) 


 

William H. Sorrell, Attorney General, and Evan P. Meenan,
Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, Anna Saxman, Deputy
Defender General and 
  Robert Regan, Legal Intern, Montpelier, for
Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
REIBER, C.J.  Defendant Asim Betts was charged in June 2010
with felony possession of crack cocaine under 13 V.S.A. § 4321(a)(2) after
the vehicle in which he was a passenger was stopped and he was transported to
the police barracks.  After the trial court denied a motion to suppress
evidence and to dismiss the charges, defendant entered into a conditional plea
agreement, reserving the right to appeal the trial court’s suppression
decision.  Defendant argues that all evidence should have been suppressed
under the Fourth Amendment to the United States Constitution and Article 11 of
the Vermont Constitution because his consent to be taken to the police barracks
for a strip search was invalid.  We conclude that defendant’s consent was
obtained only in response to the threat of an unlawful warrantless arrest under
both the Fourth Amendment and Article 11 and, therefore, reverse.  
¶ 2.            
The facts may be summarized as follows.[1]  On June 7, 2010, sometime after
10:16 a.m., a state trooper spoke with a confidential informant who said he had
seen “White Steve,” whom the trooper knew from previous investigations to be
Steven McCauley, and an unknown black male “in possession of a large amount of
crack cocaine.” It was unclear how recently the informant had seen the men in
possession of the drugs:  According to the trooper’s affidavit, the
informant had seen the drugs at some point during the preceding twenty-four
hours; the trooper later testified that the informant had seen the drugs more
recently than that, some five hours before the stop.  According to
the trooper’s testimony, the informant, whose identity was never revealed,
“advised that . . . White Steve was driving around in a white Ford
Explorer, and had an unknown African-American male subject in the vehicle with
him, and that individual had a significant amount of crack cocaine on his
person.”  The trooper testified that the informant, who had previously
provided information that led to arrests and charges, did not provide any additional
details regarding the quantity, packaging, or location of the drugs he
purported to have seen.[2]   

¶ 3.            
At about 11:30 a.m., while driving by on a public highway, the trooper
spotted a white Ford Explorer at the location indicated by the informant and
ran a license-plate check to verify it was McCauley’s sport-utility
vehicle.  In doing so, the trooper learned that McCauley’s license was
suspended.  The trooper did not stop the vehicle at that time but instead
kept a “loose tail” for about two hours and forty-five minutes before pulling
it over.   The trooper confirmed that, during the lengthy period of
time he observed the vehicle, he saw nothing that offered indicia of
drug-related activity.
¶ 4.            
At the stop, the trooper first approached McCauley, who was driving;
defendant occupied the passenger seat.  The conversation was not recorded
because the trooper was not wearing a functioning microphone.  The trooper
testified that he told McCauley that he was under suspension, did not have a
front license plate, and that the trooper had received information about crack
in the car.  Several minutes after the initial stop, another
officer arrived.  From what can be discerned from the dashboard camera
mounted in the trooper’s cruiser, the other officer walked toward the
Explorer’s passenger side.   Meanwhile, McCauley got out of the
vehicle and continued to speak with the trooper.  Both appeared from the
cruiser video to be standing within earshot of the Explorer, where defendant
remained seated, although, again the content of the conversation was not
recorded.
¶ 5.            
Describing his interaction with McCauley, the trooper testified during
the suppression hearing: “I explained to him the information that I had, and
that I would be asking for consent [to search], and if not I was prepared to
seize their persons and the vehicle to apply for a warrant.”  In response
to questioning, the trooper said he told the men that “they both would be seized,
as would the vehicle.”  The trooper in his testimony agreed that the men
would be handcuffed while the trooper made contact with a judge and waited for
the judge to review the warrant application.  The trooper said: “I didn't
explain it all in detail and that depth to them, but I told them that they
would be seized, as would the vehicle, go to the barracks, and apply for a
warrant.” 
¶ 6.            
At some point during the conversation, McCauley told the trooper that he
“was crazy, and that there was no drugs in the car or on their person” and
agreed then to consent to a car and body search, according to the trooper’s
testimony.  The trooper left McCauley with another officer to fill out a
consent-to-search form and spoke with defendant, who remained in the
Explorer.  In his testimony during the first day of the suppression
hearing, the trooper described the conversation as follows:
 [Trooper]:
I told him if the consent was denied, that these were the options that we had,
and I was asking for a consent, and I explained to him the information that I
had received, and that I had validated the information, that I would be
seizing their persons and the vehicle, yes.”
 
[Question]: 
And that information was conveyed to Mr. Betts before he gave the verbal
consent at the car to go ahead and search his person.
 
[Trooper]: 
Yes. 
 
¶ 7.            
The suppression hearing recessed, and after a lengthy hiatus, began anew
some weeks later.  The trooper then testified that he merely explained the
options to Betts after he had already given consent, stating “I don’t recall
the search warrant.  I did explain to him, like I said, the information
obtained from the informant, and he immediately said that he was not in
possession, there was no crack in the vehicle, and I could search his person.” 
¶ 8.            
Defendant similarly described the critical portions of his initial
encounter with the trooper, testifying that the trooper told him “if you don’t
consent, then we’ll put you in cuffs, and we’ll bring you to the barracks, and
then we’ll get a warrant.”  Regardless of the specific content of their
conversation, the trial court in its decision found that, at a minimum, the
trooper “explained that if consent was not given, he would seize them
and would be applying for a search warrant.”   
¶ 9.            
The trooper brought defendant back to his cruiser to fill out paperwork
to consent to a body search.  Before entering the cruiser, defendant
agreed to empty his pockets.  The pocket-dump revealed nothing drug
related, and defendant was allowed to place everything back in his pants. 
Once inside the cruiser, where the recorder was operating, the trooper
explained what defendant would be consenting to.  In particular, the
trooper told defendant that they would go to the barracks because a strip
search could not be conducted in the public parking lot and that defendant
would be handcuffed during the trip to preserve any evidence.  The trooper
read the consent form to defendant and noted that although he believed he had
probable cause, a judge would need to approve a warrant if defendant did not
consent.  The trooper handed defendant the consent form and asked him to
sign, which he did.  
¶ 10.         The
trooper placed defendant in handcuffs, drove him to the barracks, and left
defendant inside before returning to his cruiser to retrieve the dash
video.  As the trooper approached his cruiser, he saw what later proved to
be crack cocaine on the ground beside the passenger door.  The trooper went
back inside and read defendant his Miranda warning.  Defendant waived his
rights by signing a form, and then acknowledged that the crack was his and that
he had come from Connecticut to purchase it.      
¶ 11.         Defendant
moved to suppress the evidence and dismiss the charges, alleging that his
consent was not voluntary.  The trial court denied the motions after
determining that the alleged motor-vehicle violations justified the initial
stop and that defendant voluntarily consented to a search, which necessitated a
trip to the police station.   The trial court concluded that “the
observed motor vehicle code violation provided an objectively reasonable basis
for the initial stop” and that “the immediate request for a consent to search
did not impermissibly expand the duration of the stop.”  In analyzing the
circumstances surrounding defendant’s purported consent, the trial court
focused exclusively on the recorded interaction between defendant and the
trooper inside the patrol car, at which time the trooper “asserted his opinion
that he would be able to obtain a warrant” but “qualified that statement by
indicating that a judge would have to agree with him that probable cause
existed.”  The court omitted any discussion of its own finding that the
officer had threatened to “seize” defendant pending a warrant application.
¶ 12.         Defendant
appeals, arguing that the trial court erred in failing to suppress the evidence
because defendant’s transportation to the police barracks was unsupported by
either a valid consent to the search that necessitated the trip or by probable
cause.   We reverse.  
I.
¶ 13.         Absent
voluntary consent, defendant’s transportation to the police barracks in
handcuffs for a full-body strip search would undoubtedly constitute an arrest,
rather than a mere investigative detention.   See State v. Pitts,
2009 VT 51, ¶ 7, 186 Vt. 71, 978 A.2d 14 (“A full-scale arrest or the
functional equivalent (i.e., where the level of restraint has become too
intrusive to be classified as an investigative detention) requires the highest
level of justification—probable cause.” (quotations omitted)); see also Hayes
v. Florida, 470 U.S. 811 (1985) (transporting to police station absent
probable cause or valid consent violates Fourth Amendment).[3]  The State argues that
defendant provided voluntary consent to be transported to the barracks for a
strip search, obviating any need to establish probable cause to justify an
arrest or an exception to the warrant requirement.  
¶ 14.         “[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.”  State v. Weisler,
2011 VT 96, ¶ 26, 190 Vt. 344, 35 A.3d 970.  Our inquiry focuses “on
whether a reasonable person in the defendant’s circumstances would have
retained the freedom of will to withhold consent.”  Id.,
¶ 33.  “Voluntariness is to be determined from the totality of the
circumstances, with the State carrying the burden of demonstrating that the
consent was freely given and not coerced by threats or force, or granted only
in submission to a claim of lawful authority.”  Pitts, 2009 VT 51,
¶ 24  (quotation omitted).
¶ 15.         We have
previously held that consent obtained during an illegal detention is invalid,
although this appears to be the first time we have addressed the voluntariness
of consent given when a police officer threatens a detention amounting to an
arrest.[4] 
See Pitts, 2009 VT 51, ¶ 20 (“The detention was plainly invalid
. . . [and] the illegal detention irremediably tainted the consensual
search of [defendant’s] person which immediately followed.”); State v.
Sprague, 2003 VT 20, ¶ 31, 175 Vt. 123, 824 A.2d 539 (defendant’s
consents for search of person, vehicle, and home following an illegal seizure
were “tainted and ineffective”);  see also Florida v. Royer, 460
U.S. 491, 507-08 (1983) (consent to search luggage tainted by illegal detention). 

¶ 16.         In Pitts,
we concluded that police lacked reasonable suspicion to temporarily detain and
pointedly question a man about drugs, holding that the defendant “would have
concluded that he was the subject of a focused police investigation into
criminal activity and was not free to disregard the officers’ questions and
requests.”  2009 VT 51, ¶ 14.   On that basis, we concluded that
the defendant’s ultimate consent to a search was invalid.  We observed:
While
the record reveals neither physical restraint nor blatantly aggressive or
intimidating language, these circumstances—including the fact that the suspect
was obviously followed for a substantial distance, that his taxi was searched,
and that he was successively questioned about weapons and drugs—are precisely
the kind which courts have characterized as a particularized inquiry into
criminal activity which the average person would not have felt free to
disregard or terminate.
 
Id. ¶
16.  In arriving at that conclusion, we acknowledged the criticism
engendered by many U.S. Supreme Court decisions that seemingly overestimate the
average person’s capacity to decline police requests or end police
questioning.  Id. ¶ 17.  
¶ 17.         It is
also well established that consent is not voluntary when it is a mere
submission to a claim of lawful authority.   See Bumper  v.
North Carolina, 391 U.S. 543 (1968).  In Bumper, the Supreme
Court held that the government’s burden to prove voluntary consent “cannot be
discharged by showing no more than acquiescence to a claim of lawful
authority.”  Id. 391 U.S. at 548-49.  In that case, police
possessed a warrant to search a house, but the warrant was never returned,
requiring the state to proceed on a theory of consent.  The outcome of the
case would, however, have been the same even if the warrant had been
returned.  See W. LaFave, 4 Search and Seizure § 8.2(a), at 72-73
(5th ed. 2004) (“[T]he Court made it unmistakably clear that the same result
would be reached if the warrant was thereafter relied upon and held invalid or
insufficient, or if the police falsely claimed to have a warrant.”).  A
claim of lawful authority invalidating consent need not involve mention of a
warrant.  
“It
is enough . . . that the police incorrectly assert that they have a right
to make a warrantless search under the then existing circumstances, or
circumstances they could cause to occur, that they claim that absent such
consent they will detain defendant while a non-search alternative is used to
acquire the information sought; . . . or that police have
misrepresented the existence of certain facts . . . which, if they
actually existed, would allow the police to make a warrantless search.” 
 
Id. at 76-77
(citing United States v. Morgan, 270 F.3d 625 (8th Cir. 2001).  In Morgan,
the United States Court of Appeals for the Eighth Circuit held that a woman did
not voluntarily consent to a search when she acquiesced after police said they
would conduct a dog sniff if she did not submit.  270 F.3d at 632 (court
nevertheless finds no Fourth Amendment violation because further detention was
only ten minutes and thus did not require reasonable suspicion).  It is
for these reasons that we have refused to find voluntary consent when
authorities portrayed the warrant requirement as a mere formality and its
issuance a certainty, although, in and of themselves, “statements indicating an
intent by the police to apply for a warrant merely describe what will occur in
the event of a refusal.”  Weisler, 2011 VT 96, ¶ 38 (quotation
marks omitted). 
¶ 18.          For
similar reasons, consent for a search is not voluntary when obtained in
response to the threat of an unlawful detention.   See, e.g.,  United
States. v. Jefferson,  650 F.2d 854, 858 (6th Cir. 1981). 
In Jefferson, the United States Court of Appeals for the Sixth Circuit
observed:
We
also reject the government’s contention that [defendant] consented to the
search.  Although [defendant] told [the officer] to “go ahead” and search
his luggage, he did so only after he was threatened with illegal detention.
 
. . .
 
In
this case, [the defendant] was not simply asked if he would consent to a
search; he was hauled off the street and into a private office and told that if
he did not consent to a search he would be held until [the officer] obtained a
search warrant.  In view of the fact that [the defendant] was threatened
with being detained, although [the officer] had no right to hold him, his
consent cannot be considered voluntary.  It was obtained under duress; the
alleged consent does not vitiate the illegality of the arrest.
 
Id.
at 858.
 
¶ 19.         We
are faced with a similar situation here.  First, defendant agreed to a
search only after the trooper explicitly told him that both he and McCauley
would be “seized” and taken to the police barracks to await a warrant. 
Second, the trooper, in fact, lacked the authority to transport defendant to
the barracks against his will because neither the informant’s tip nor the
trooper’s lengthy surveillance or later interaction with defendant provided
probable cause.[5] 
Probable cause for a “warrantless arrest exists when 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. Arrington, 2010 VT 87, ¶ 11, 188 Vt. 460, 8 A.3d 483 (quotation
omitted).  Probable cause must be based on the knowledge available to the
officer at the time, and not based on any evidence uncovered later.  State
v. Phillips, 140 Vt. 210, 216, 436 A.2d 746, 750 (1981) (probable
cause for warrantless arrest based on “the information possessed by the police
at the time of initial detention”).  A finding of probable cause
must be based on “substantial evidence.”  State v. McManis, 2010 VT
63, ¶ 5, 188 Vt. 187, 5 A.3d 890 (quotation omitted).
¶ 20.         This
Court applies a two-prong test codified by Vermont Rule of Criminal Procedure
41 to evaluate whether probable cause for a warrant exists based on the hearsay
testimony of a confidential informant not named by the police.  See Arrington,
2010 VT 87, ¶ 12.  We apply the same Aguilar-Spinelli[6] test to probable-cause-to-search
determinations. See McManis, 2010 VT 63, ¶ 19.  The first
prong examines the basis for an informant’s knowledge; the second concerns
whether an informant’s tip is, in fact credible. See Arrington, 2010 VT
87, ¶¶ 13-14.  An informant’s first-hand knowledge satisfies the
first prong, which is concerned exclusively with the factual basis of that
knowledge.  To satisfy the second prong, the informant must be inherently
credible or the information must be reliable on that particular occasion. 
Id. Reliability on a particular occasion requires “a showing that the
informant’s tip was against penal interest or that the information was
corroborated by police to the point where it would be reasonable for them to
rely on it as accurate.”  McManis, 2010 VT 63, ¶ 12.   
¶ 21.         Here,
assuming the informant personally saw White Steve and “an unknown black male in
possession of a large amount of crack cocaine,” the first prong might arguably
be satisfied—at least with respect to White Steve and this “unknown black
male”—based upon the informant’s direct observation of an individual who was
known to the officer and another described only very broadly as a male who was
black.[7] 

¶ 22.         The
second prong addressing informants’ inherent credibility or the reliability of
their information on a given occasion would not, however, have been
satisfied.  A reviewing court would not have been able to independently
evaluate the informant’s inherent credibility on the basis of the information
contained in the affidavit or the trooper’s testimony.  See McManis,
2010 VT 63, ¶ 11 (facts and circumstances surrounding officer’s determination
that an informant is inherently credible must be sufficient to permit
independent assessment of that conclusion).  Evidence that an informant
“has provided accurate information in the past” may sometimes establish an
informant’s “[i]nherent credibility.”  Id. (quotation
omitted).  But “conclusory affidavits present the spect[er]—offensive to
constitutional guarantees—that the inferences from the facts which lead to the
complaint will be drawn not by a neutral and detached magistrate
. . . but instead by a police officer engaged in the often
competitive enterprise of ferreting out crime.”  State v. Robinson,
2009 VT 1, ¶ 12, 185 Vt. 232, 969 A.2d 127 (quotations omitted).  
¶ 23.         Here,
the trooper’s affidavit indicated that the confidential informant had “provided
. . . information in the past that has led to the arrest of at least
three separate individuals for various narcotics offenses.”  While a
closer call than some of our other cases to weigh the credibility of an unnamed
informant, the context falls short of that required to permit an independent
analysis of the informant’s credibility.  Past information leading to
other drug-related arrests is certainly a factor that weighs in favor of
concluding an informant is credible.  See Robinson, 2009 VT 1, ¶ 9
(finding insufficient affidavit of probable cause to search where officer
“affirmed that the informant’s past information had ‘concerned’ illegal
activities, but did not aver that the information had led to convictions, arrests,
evidence, or even search warrants” (emphasis added)).  The touchstone of
our analysis in Robinson, however, was not the mere absence of a
formulaic recitation that arrests had resulted from information provided. 
Rather the case turned on the insufficiency of evidence that would allow a
“judge independently to draw the inference that the informant was
credible.”  Id. ¶ 14. Indeed, in Robinson, we quoted
approvingly United States v. Acosta, 501 F.2d 1330, 1332 (5th Cir.
1974), which held insufficient a probable-cause affidavit that said “nothing
about whether the cases thus initiated were successfully prosecuted, whether
they were based on information supplied by the informant, or if so, whether the
information proved to be accurate.”  2009 VT 1, ¶ 13 (quotation
omitted).  
¶ 24.         The
trooper’s affidavit here contains no indication as to the actual nature of the
informant’s cooperation or information in the past, how the information “led”
to the alleged arrests, or the final outcome of any of the cases in which he or
she was involved.  See Commonwealth v. Santana, 583 N.E.2d 1288,
1291 (1992) (“The affidavit does not make clear what role the informant played
in obtaining the arrest.” (quoting Commonwealth v. Rojas, 531 N.E.2d 255
(1988))); Commonwealth v. Mejia, 579 N.E.2d 156, 156 (Mass. 1991) (fact
that informant provided information leading to three arrests did not establish
reliability under Aguilar-Spinelli test).  On this record, a
reviewing court would simply have no basis upon which to discharge its
constitutional duty to independently analyze the informant’s credibility. 
  
¶ 25.         Nor
can we conclude that the information provided was necessarily reliable on this
particular occasion.  There is no indication that the informant made
statements against his or her penal interest, and, thus, the State would need
to establish that the “information was corroborated by police to the point
where it would be reasonable for them to rely on it as accurate.”  McManis,
2010 VT 63, ¶ 12 (quotation omitted).
¶ 26.         In Arrington,
we held that probable cause existed for a warrantless arrest predicated on
information provided by an informant whose tip was deemed reliable on the basis
of several important factors notably absent in this case:  First, the
informant in Arrington had marked money and drug paraphernalia that
implicated her in the retail drug trade about which she purported to provide
information.  2010 VT 87, ¶ 15.  Second, the informant offered not
only predictive information about the defendant’s movements and vehicle, adding
validity to the remainder of her claims, but also personally accompanied police
to identify him.  Id. ¶¶ 17-18. Third, the informant’s
identity was known not only to police but to the court and the defendant, as
well, exposing her to retaliation for her statements, which she made under oath
and its attendant threat of perjury charges.  Id. ¶ 19.
 Fourth, the informant in Arrington made statements implicating her
in a crime. 
¶ 27.         The
informant’s information in this case falls far short of that standard.  As
an initial matter, the informant’s information consisted largely of the sort of
“mere innocent details” that we have previously held insufficient by themselves
to confirm allegations of criminal conduct even under the more forgiving
standard of reasonable suspicion.  See Robinson, 2009 VT 1, ¶ 15
(confirmation of innocuous details does not bolster credibility of assertion
regarding illegal conduct).  In Robinson, a confidential informant
told police “that a twenty-six-year-old black male named ‘Naim’ would be
driving to Vermont from Pennsylvania with cocaine in his vehicle.”  Id.
¶ 2.  The tipster’s information included the age, name, race, and origin
of the eventual defendant; allegations of a specific crime; the make and model
of the defendant’s car, as well as the issuing state for its license plate; and
a highly specific description of the subject’s route into Vermont.  We
acknowledged that “predictive information could, in a different case, provide a
wealth of detail about future behavior as to be effectively self-verifying” but
concluded that the information corroborated must confirm more than peripheral,
innocent details.  Id. ¶¶ 15-16. That is to say, the
information corroborated must relate in some way to the criminal activity
alleged.  Id. ¶ 16; see also McManis, 2010 VT 63, ¶ 15
(“[T]he deputy sheriff’s drive-by of defendant’s house and DMV records check
revealed no evidence of any criminal conduct and therefore ‘did nothing’ to
corroborate the criminal conduct alleged by the CI.”).
¶ 28.         Here,
the State suggests that the informant’s tip accurately predicted that defendant
would be in the company of White Steve, who was known to police from other
investigations, and that the car they occupied would be at a particular
location.  According to the State, such information would not be available
to the general public observer and therefore would be sufficient to justify at
least the lower standard of reasonable suspicion.  We find this contention
without merit.  As the trooper himself acknowledged, he first observed
White Steve’s car from a public highway after speaking with the
informant.  The trooper’s verification of the make, model, and publicly
observable location of McCauley’s car, which would have been evident to anyone
passing by, concerns precisely the type of innocent details we have previously
concluded were insufficient to corroborate the reliability of an informant’s
tip or, indeed, to generate probable cause.  See McManis, 2010 VT
63, ¶ 15 (“We reaffirmed in Robinson that [State v. Goldberg,
2005 VT 41, ¶ 14, 178 Vt. 96, 872 A.2d 378),] stood for the proposition that
‘the corroboration of mere innocent details did not prove that the informant’s
allegations of drug offenses were reliable.’ ” (omission
indicated)).  The trooper acknowledged that during several hours of
loosely tailing McCauley and defendant, he observed nothing suspicious that
would independently corroborate allegations of criminal, drug-related
conduct.  In fact, the trooper did not even discover anything drug-related
when he asked defendant to empty his pockets before placing him in the
cruiser.   
¶ 29.         Moreover
the informant’s tip in this case offered no details that directly related to
defendant.  Rather, the tip described an “unknown black male,” who,
according to the trooper’s affidavit, had been in the company of White Steve
and a large amount of cocaine within twenty-four hours of the informant’s
conversation with the trooper; the trooper later narrowed that period to
several hours before the call.  Regardless of the time that transpired,
nothing more than gender and race suggested that the person in McCauley’s car
at the time of the stop was the same one whom the informant purported to have
seen earlier in possession of drugs.  This is in marked contrast to the
situation in Arrington, in which the informant personally identified the
suspect while accompanying the police, 2010 VT 87, ¶ 4, or in Robinson,
in which case the informant identified the defendant not merely by description
but by name, 2009 VT 1, ¶ 2.  
¶ 30.         We
find similarly unpersuasive in this case the State’s correct observation that
law enforcement officers may at times rely on “personal knowledge of [a]
defendant’s prior criminal activity” to assess the reliability of an
informant’s tip.  State v. Lamb, 168 Vt. 194, 198-99, 720 A.2d
1101, 1104 (1998).  In this case, the trooper had absolutely no knowledge
of defendant’s history—criminal or otherwise—because informant described only
an “unknown black male” and the trooper had no previous experience with defendant. 
Indeed, on the basis of this vague tip, any black man who happened to suffer
the misfortune of traveling with White Steve on that particular occasion might
have been subjected to the threat of unfounded detention.  Even assuming
that defendant’s detention as part of an investigatory stop was supported by
reasonable suspicion, a conclusion that we do not reach, the informant’s tip in
this case simply cannot be viewed as establishing the probable cause that would
be necessary to search defendant or to transport him to the police barracks
absent voluntary consent.  Nor does the State argue that it did. 
Defendant’s “consent,” then, was not so much a submission to a claim of lawful
authority to perform the requested act, as it was a submission to an implied
claim of authority to carry out what we conclude would be an illegal arrest as
a predicate to attempting to obtain a warrant.  See Jefferson, 650
F.2d at 858; see also U.S. v. Ocheltree, 622 F.2d 992 (9th Cir.
1980).  
¶ 31.         The
State appears to contend that police may arrest suspects without probable cause
in order to preserve possible evidence while they apply for search warrants
that might enable them to discover the very evidence that would provide
probable cause.  Given the facts of this case, the law precludes this
rather circular assertion of authority.  Under the Vermont and Federal
Constitutions, a person cannot be unlawfully arrested to be “at the disposal of
the authorities while a case is discovered against him.”  In re Davis,
126 Vt. 142, 142, 224 A.2d 905, 906 (1966); cf.  United States v. Ponce,
947 F.2d 646, 651 (2d. Cir. 1991) (“[O]ur holding should not be read as
sanctioning police conduct intended to hold a suspect or a car without probable
cause while the police attempt to gather additional information. Such conduct
would be a clear violation of the Fourth Amendment. We hold only that if the
police have probable cause to search a car, they may hold that car for a
reasonable time while they obtain a search warrant based on facts known to them
prior to the initial seizure.” (citation omitted and emphasis added)).  As
with any arrest, therefore, a warrantless arrest must be supported by probable
cause.  See Phillips, 140 Vt. at 216, 436 A.2d at 750  
(“The standards for evaluating the factual basis supporting a probable cause
assessment are not less stringent in a warrantless arrest situation than in a
case where a warrant is sought from a judicial officer.”).   If upon
later review, an officer is found not to have had probable cause, the arrest is
unlawful.  The State’s argument appears to rely on the flawed premise that
a judge’s determination somehow operates to manufacture probable cause. 
That is not the case.  An officer either possesses that level of suspicion
at the time of the encounter or he does not.  A judge must later review
that determination to verify the existence of the appropriate standard. 
But the existence or absence of that level of suspicion depends entirely on the
information possessed by the arresting officer at the time. See id.
(probable cause for warrantless arrest based on “the information possessed by
the police at the time of initial detention”).  
¶ 32.         Nor
do we find compelling the State’s attempt to employ here narrow exceptions to
the search warrant requirement as a basis for a person’s arrest—or the threat
of one—without probable cause.  Among other salient distinctions, these
exceptions themselves require probable cause as a necessary predicate in
addition to the claimed exigent circumstances.  See, e.g., State v.
Girouard, 135 Vt. 123, 129, 373 A.2d 836, 840 (1977) (“The well-delineated
preconditions to [the automobile exception’s] reasonable invocation are 1) probable
cause to believe that the vehicle contains evidence of crime and 2) exigent
circumstances.” (emphasis added)).  As we have observed, the officer in
this case did not have probable cause to believe that the vehicle contained
evidence of a crime.  
II.
¶ 33.         Having
determined that defendant’s consent to a strip search was not voluntary and
was, therefore, invalid, we conclude that the trial court erred in declining to
suppress the evidence obtained from the ground outside the
station.    “Evidence obtained in violation of the Vermont
Constitution, or as a result of a violation, cannot be admitted at trial as a
matter of state law.”  State v. Oakes, 157 Vt. 171, 173, 598 A.2d
119, 121 (1991) (quotation omitted).  Unless the taint of illegality has
dissipated, evidence must be suppressed.  State v. Barron, 2011 VT
2, ¶ 24, 189 Vt. 193, 16 A.3d 620.  The question in these cases is
“ ‘whether, granting establishment of the primary illegality, the evidence
to which instant objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be purged of the
primary taint.’ ”  Phillips, 140 Vt. at 218, 436 A.2d at 751
(quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)).  In
this case, the evidence was discovered on the ground outside the cruiser after
defendant had been taken to the barracks for his allegedly consensual
search.  Defendant’s presence at the barracks resulted directly from his
invalidly obtained consent.  Similarly, his confession to possessing the
drugs flowed directly from the discovery of that illegally obtained evidence. 
Cf. State v. Hunt, 150 Vt. 483, 555 A.2d 369 (1988) (evidence did not
show that but for illegal search and seizure defendant would not
have confessed to murder and therefore confession was not fruit of illegal
search).  We therefore agree with defendant that this evidence should have
been suppressed.  See State v. Badger, 141 Vt. 430, 452, 450 A.2d
336, 349 (1982) (establishing that there is no good-faith exception to
Vermont’s exclusionary rule and noting that admission of improperly obtained
evidence “eviscerates our most sacred rights, impinges on individual privacy,
perverts our judicial process, distorts any notion of fairness, and encourages
official misconduct”); see also McManis, 2010 VT 63, ¶ 19 (exclusionary
rule “ ‘encourages police to diligently corroborate information from a
potentially unreliable source’ ” (quoting Robinson, 2009 VT 1, ¶
19)).  Absent the evidence obtained after defendant’s transportation to
the barracks, a conviction cannot be upheld, and consequently the trial court also
should have granted defendant’s motion to dismiss. 
Reversed; defendant’s motion to
suppress and dismiss is granted.  
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[1]  We
draw the facts from the trial court’s findings, testimony, and the
dash-mounted-cruiser-camera video because we review a decision regarding the
voluntariness of consent independently based upon the totality of the
circumstances.  State v. Weisler, 2011 VT 96, ¶ 26, 190 Vt.
344, 35 A.3d 970. 
 


[2]
 The trooper could not confirm whether the informant’s tips had led to
convictions, a consideration that some courts have found relevant in assessing
credibility.  Because of the disposition of this case on other grounds, we
decline to address the effect, if any, this might have on a credibility
determination.  


[3]
 Transportation to a police station without consent is no less an arrest simply
because it is necessitated by the police’s purported desire to protect a
suspect’s dignity and privacy by conducting a strip search away from the public
eye.
   


[4]
 We assume without deciding that defendant’s initial detention, arguably a
mere by-product of the physical impediment to his departure posed by his
presence as a passenger in a vehicle stopped for illegal operation, was not
illegal.  


[5]
 The motor-vehicle infraction committed by the driver cannot be relied
upon to support probable cause to arrest or search defendant, who was a
passenger.  An officer’s knowledge that someone is operating a vehicle
with a suspended license justifies stopping the vehicle, but only for as long
as necessary to “effectuate the purpose of the stop.”  State v.
Cunningham, 2008 VT 43, ¶ 17, 183 Vt. 401, 954 A.2d 1290 (quotation
omitted).  That is to say, “the officers may briefly detain
the individual to investigate the circumstances that gave rise to the
suspicion, while ensuring that the detention is ‘reasonably related in scope’
to the circumstances that justified it.”  Pitts, 2009 VT 51, ¶7
(quoting Terry v. Ohio, 392 U.S. 1, 29 (1968)); see also Sprague,
2003 VT 20, ¶ 17 (noting “requirement that the police intrusion proceed no
further than necessary to effectuate the purpose of the stop”). Defendant,
however, was a passenger and thus clearly did not commit the motor-vehicle
violation justifying the stop.  Nor could it be fairly suggested that his
detention and questioning would yield any evidence related to that
infraction.   
 


[6] 
The test is based on two United States Supreme Court cases, Aguilar v. Texas,
378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410
(1969).  We continue to employ this test although the U.S. Supreme Court
has since abandoned it.  


[7]
 The affidavit is not clear on this point because it omits a
word.   The affidavit reads “CI advised that within the last twenty
four hours, s/he had [missing past participle] Steve Mcauley and an unknown
black male.”  From the trooper’s testimony, however, it appears that the
informant claimed to have seen the drugs.



