2010 VT 39



State v. Ford (2008-490)
 
2010 VT 39
 
[Filed 14-May-2010]
 
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,
 Vermont05609-0801
of any errors in order that corrections may be made before this opinion goes to
press.


 
 

2010 VT 39 

 

No. 2008-490

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


District Court of Vermont,


 


Unit No. 1, Orange Circuit


 


 


Justin Ford


September Term, 2009


 


 


 


 


Mary
  Miles Teachout, J. (motions); Richard I. Burstein, Acting J. (final judgment)


 

William J. Porter, OrangeCountyState’s Attorney,
Chelsea, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, Anna Saxman, Deputy
Defender General, and 
  Dan Stevens, Legal Intern, Montpelier, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
SKOGLUND, J.   Justin Ford appeals from the judgment of
conviction rendered following his conditional pleas to possession of marijuana
and possession of narcotics.  The defendant claims that the trial court
improperly denied his motion to suppress certain evidence seized from his
house.  We agree and, accordingly, reverse the judgment of the trial court
and remand. 
¶ 2.            
Sometime in the early morning of March 20, 2008, an individual called
9-1-1, said his name was Stephen Ford, and said he had been in an accident and
was trapped in his vehicle on the Hartford-Quechee
  Road in Hartford in
WindsorCounty.  Stephen Ford is the
brother of defendant, Justin Ford.  Nothing in the record established the
time of the 9-1-1 call.  Police and the local EMS
squad responded and searched the area, but did not find a damaged car or
Stephen Ford in the area.  Subsequently, at around 5:20 a.m. on March 20,
a Vermont state police trooper from the
Middlesex barracks was contacted at her home by her dispatcher and directed to
perform a welfare check on Stephen Ford at his last known address on Brook Street in
Williamstown in OrangeCounty. 
  


¶ 3.            
The trooper arrived at the Brook
  Street address shortly before 6 a.m. and saw one
car in the driveway buried by snow.  She concluded that it had not been
used for awhile.  She saw no fresh tire tracks, nor did she see lights on
in the house.  The only tracks she saw were footprints leading to a
basement door of the house adjacent to the driveway.  From prior experience
with Stephen Ford in an unrelated matter six months earlier, the trooper
believed that he lived in the basement of the house.  She approached the
door and knocked on it a few times, announcing her presence.  Hearing no
response, the trooper decided to check the remainder of the house.  She
knew there was another entrance on the north side of the house, but because
there was no path through the snow in that direction and because there was a
snowmobile track leading around to the south side of the house, she proceeded
along the track to the back of the house.


¶ 4.            
Upon reaching the back of the house, the trooper saw lights coming from
the further of two basement windows.  Stepping off the snowmobile trail,
she approached the house, knocked on the nearer window and announced, “State
Police, please come to the door.”  She did not hear anything from inside,
so she approached the lighted window.  As she bent down to the window, she
saw, through a gap between the curtains, several small marijuana plants growing
in a glass aquarium under a bright grow-light.  The trooper did not see
anyone inside the room, so she halted her search and left the premises.
¶ 5.            
Based on what she had observed, the trooper obtained a search warrant
for the house on Brook Street,
which she thought was Stephen Ford’s house.  At around 3 p.m. that
afternoon she and a number of other officers returned and searched the home,
seizing a dozen marijuana plants, several oxycodone tablets, and other
materials thought to be used in a drug-growing operation.  While the
search was progressing, the owner of the home—and mother of Justin Ford and
Stephen Ford—contacted the trooper to ask why her home was being
searched.  The trooper informed her of the series of events leading to the
search.  The caller explained that defendant lived in the home and that
Stephen had not lived there for some time.  A further search of the home
uncovered mail and other personal items addressed to defendant.  Defendant
was subsequently charged with two misdemeanor counts of possession of marijuana
and possession of narcotics.


¶ 6.            
Before trial, defendant move to suppress the physical evidence gathered
in the afternoon search of his home.  Defendant contested the search on
the premise that the warrant authorizing the search was based on the trooper’s
warrantless early-morning entry onto the grounds of his home and her
observations through his window, and thus, the evidence was obtained in
violation of his constitutionally protected rights.  In opposition, the
State claimed that the trooper’s entry onto defendant’s property was lawful
under the emergency aid exception to the warrant requirement.  At the
evidentiary hearing, the trooper testified to the facts above.  Based on
this testimony, the trial court denied defendant’s motion, finding that the
search satisfied the requirements of the emergency aid exception as laid out in
State v. Mountford, 171 Vt. 487, 769 A.2d 639 (2000).
 Subsequently, defendant entered into a conditional plea agreement, admitting
guilt pending the outcome of this appeal. 
¶ 7.            
On appeal from a denial of a motion to suppress, we review of the trial
court’s findings of fact deferentially; and reverse only if the findings are
clearly erroneous.  State v. Bryant,  2008 VT 39, ¶ 9, 183 Vt. 355, 950 A.2d
467.  Under this standard, “we will uphold the court’s factual findings
unless, taking the evidence in the light most favorable to the prevailing
party, and excluding the effect of modifying evidence, there is no reasonable
or credible evidence to support them.”  State v. Rheaume, 2005 VT
106, ¶ 6, 179 Vt.
39, 889 A.2d 711 (quotation omitted).  Whether the facts as found meet the
proper standard justifying a particular police action is a question of
law.  State v. Mara, 2009 VT 96A, ¶ 6, ___ Vt. ___, 987 A.2d 939.  We review legal
issues de novo.  Bryant, 2008 VT 39, ¶ 9.  
¶ 8.            
Defendant first challenges the trial court’s factual findings, arguing
that the court erred when it found: (1) that the trooper had seen “recent
footprints leading to the basement door;” (2) that it was apparent to the
trooper that “someone had recently entered the basement door;” and (3) that it
was “implied that there had been no information that [Stephen Ford] had been
picked up by anybody and transported to a hospital.”  In reviewing the
trooper’s testimony at the suppression hearing, we can find no evidence to
support the finding that the footprints or entry into the residence were
recent.  The trooper’s testimony referred only to footprints in the snow;
she made no statements about how old or new the tracks may have been, when the
last snow had fallen, or any other indicia of when the prints were made. 
The State argues that the court could make a logical inference that the tracks
were “recent” from the trooper’s testimony; however, we fail to see how such an
inference can be drawn from testimony establishing only their existence. 
As to the second challenged finding, as above, we find nothing in the record to
support the court’s finding that “someone had recently entered the basement
door.”   These findings of the court are not supported by the
evidence and are clearly erroneous and cannot be upheld.  Defendant’s
third challenge is not to a finding so much as to a conclusion: “it’s implied
that there had been no information that [Stephen] had been picked up by anybody
and transported to a hospital.”  This is a reasonable, if immaterial,
inference, based on the testimony that Stephen was not located on the Hartford-Quechee Road
and the State Police had dispatched the trooper to his last known address to
look for him.  Thus, we find no error in this finding.  


¶ 9.            
Defendant’s central argument on appeal is that the trooper’s entry onto
his property and the resulting discovery of the illegal items constituted a
warrantless search of his home in violation of his rights under the Vermont
Constitution.[1] 
Defendant claims that when the trooper walked around his house and peered into
the lighted basement window, she invaded the curtilage of his home and effected
a search without a warrant.  Though defendant recognizes that warrantless
searches are permissible under certain circumstances, he contends that this
search failed to meet the criteria for the emergency aid exception, and thus,
the trial court erred in denying his motion to suppress.
¶ 10.        
Article 11 of the Vermont Constitution protects the people’s right to be
free from “unreasonable government intrusions into legitimate expectations of
privacy.”  Bryant, 2008 VT 39, ¶ 10 (quotation omitted).  The
home is “a repository of heightened privacy expectations,” and as such, it
receives heightened protection under Article 11.  Id. ¶ 12 (quotation omitted). 
Because some areas outside the physical confines of a house are so intimately
tied to the “privacies of life,” we recognize the “same constitutional
protection from unreasonable searches and seizures” for this so-called
curtilage “as [for] the home itself.”  State v. Rogers, 161 Vt. 236, 241, 638 A.2d 569, 572 (1993) (citing Oliver
v. United States, 466 U.S.
170, 180 (1984)).  An individual’s interest in privacy is safeguarded from
government intrusion by requiring “advance judicial approval” in the form of a
warrant.  Mountford, 171 Vt.
at 489, 769 A.2d at 643 (quotation omitted).  This detached review
prevents law enforcement from “deciding on their own, without the approval of a
neutral judicial officer, to invade a person’s privacy” in the absence of
“exceptional circumstances.”  Id.
(quotation omitted).  When government agents conduct a warrantless search,
the law presumes such an intrusion into an individual’s privacy is unreasonable
and a constitutional violation.  Bryant, 2008 VT 39, ¶ 10. 
Indeed, such invasions are “permissible only pursuant to a few narrowly drawn
and well-delineated exceptions.”  Bauder, 2007 VT 16, ¶ 14; see Terry
v. Ohio, 392 U.S.
1, 25-26 (1968) (warrantless search must be “strictly circumscribed by the
exigencies which justify its initiation”).
¶ 11.        
The emergency aid or emergency assistance exception provides a narrow
carve-out from the warrant requirement applicable when law enforcement
personnel discover illicit activity while providing emergency aid to protect
life or property.  See Mountford, 171 Vt. at 489-90, 769 A.2d at
643-44 (setting out contours of emergency aid exception); State v. Connolly,
133 Vt. 565, 571, 350 A.2d 364, 368 (1975) (recognizing “officers responding to
an emergency” as exception to warrant requirement); see also Mincey v.
Arizona, 437 U.S. 385, 392 (1978) (“We do not question the right of the
police to respond to emergency situations.”).  While it is distinct from
the community caretaking exception, both involve police operating outside their
criminal law enforcement and investigation role, and accordingly the warrant
requirement is relaxed.  Mountford, 171 Vt. at 490 n.*, 769 A.2d at 643 n.*.
 The “distinguishing feature” of both community caretaking and emergency
assistance searches “is that they are generated from a desire to aid victims
rather than investigate criminals.”  Id. at 491, 769 A.2d at 645.
 Because this type of search still constitutes an invasion of an
individual’s expectation of privacy, however, any resulting search must be
strictly circumscribed by the emergency which serves to justify it and should
not be used to support a general exploratory search.  Thus, the need for a
warrant is obviated only when police assistance is necessary to aid persons
“seriously injured or threatened with such injury.”  Brigham
 City v. Stuart, 547 U.S. 398, 403 (2006).  
¶ 12.        
In recognizing the emergency aid exception in Mountford, 171 Vt.
at 490-91, 769 A.2d at 644, this Court adopted the three-part analysis
developed by the New York Court of Appeals in People v. Mitchell, 347
N.E.2d 607, 609 (N.Y. 1976), abrogated as applied to Federal Constitution by
Brigham City, 547 U.S. 398.  As with other exceptions to the
warrant requirement, “the burden is on the prosecution to show that the search
falls into [this exception].”  Mountford, 171 Vt. at 493, 769 A.2d at 646 (quotation
omitted).
¶ 13.        
The first prong the Mountford/Mitchell test is that “[t]he
police must have reasonable grounds to believe that there is an emergency at
hand and an immediate need for their assistance for the protection of life or
property.”  Id.
at 490, 769 A.2d at 644 (quotation omitted).  This is an objective
inquiry, and the officer’s belief “must be grounded in empirical facts, rather
than subjective feelings.”  Mitchell, 347 N.E.2d at 609-10. 
Our analysis of this factor, however, is deferential and not an invitation to
“evaluate, by hindsight, actions taken by police based on an immediate reaction
to the circumstances that faced them.”  Mountford, 171 Vt. at 493, 769 A.2d at
646.  At the same time, “the burden is on the prosecution” to prove that
the police met the exception’s standards.  Id. (quotation omitted).
¶ 14.        
The second prong of the Mountford/Mitchell test is a
subjective analysis into the motivations of the officers involved; they “must
not be primarily motivated by intent to arrest and seize evidence.”  Id. at 490, 769
A.2d at 644 (quotation omitted).  Since we decided Mountford, the
United States Supreme Court has held that an “officer’s subjective motivation
is irrelevant” in determining violations of the Fourth Amendment of the United
States Constitution.  Brigham City,
547 U.S.
at 404.  Because our holding in this case does not depend on this second prong
of the Mountford/Mitchell test, we refrain from determining the
impact the Brigham City
ruling has on that facet of our analysis, beyond stating that the other two
prongs remain valid.
¶ 15.        
The third prong of the test limits the permissible scope of any search
undertaken as police are giving emergency assistance.  Mountford,
171 Vt. at
490, 769 A.2d at 644.  Any search must have “some reasonable basis,
approximating probable cause, to associate the emergency with the area or place
to be searched.”  Id.
(quotation omitted).  In articulating this factor, the Mitchell Court noted that this
“limited privilege afforded to law enforcement” requires a “direct relationship
between the area to be searched and the emergency.”  347 N.E.2d at
610.  Like the Mitchell
  Court, we recognize that “reasonableness of police
activity must always pass judicial muster” and any search under the guise of
the emergency assistance exception must do likewise.  Id. at 611.


¶ 16.        
The search of defendant’s home fails under the first and third prongs
set out in Mountford.  Under the first prong of the test, there was
no showing of an immediate need for police assistance at defendant’s home based
on the facts before the trial court.  The genesis of the emergency here was
a 9-1-1 call reportedly made by Stephen Ford.  Though the record is not
clear as to the specifics of the police and emergency personnel response, at
the hearing the trooper stated that police and emergency personnel had
responded to the Hartford-Quechee Road,
but were unable to find the motorist or evidence of any accident.  The
time of the 9-1-1 call was never established.  Nor was it ever established
that the caller had claimed any physical injuries.


¶ 17.        
Furthermore there was no evidence presented as to why the State Police
in the Hartford
area thought the motorist might be in Williamstown.  Apparently, a check
of the law enforcement database indicated a prior address for Stephen Ford in
Williamstown.  We take judicial notice that Williamstown is at least forty
miles away from the part of the Hartford-Quechee
  Road closest to Williamstown.  With this
limited information, the trooper was dispatched to defendant’s home to see if
Stephen Ford had returned to this residence and needed aid.  After arriving
at the home, the trooper testified to nothing that would justify a “reasonable
belief” that the motorist was inside and in need of immediate assistance. 
She approached a darkened house with a snowed-in car in the driveway and no
sign of inhabitants beyond footprints more recent than the last snowfall. 
She knocked on the most accessible door multiple times and received no
response.  Absent any evidence upon which to surmise that Stephen Ford had
arrived at defendant’s residence, injured or otherwise, between the time of the
call and the dispatch of the trooper, it is difficult to see how the State
upheld its obligation to meet the first prong of Mountford.  The
lack of a response to her knocking, without more, was insufficient to support a
belief that anyone was inside the house or that there was an immediate need for
medical attention.  See Mountford, 171 Vt. at 493, 769 A.2d at 646 (“[W]e do not
believe that either the knowledge that defendant was drunk or the failure of
defendant to open the door is sufficient to authorize emergency intervention.”
(citations omitted)).  Without additional evidence at the scene—or before
the trial court—there can be no reasonable conclusion that there was an
emergency requiring immediate police assistance in defendant’s house based
solely on the 9-1-1 call.[2]
¶ 18.        
Mountford, itself, is instructive in this regard.  There, we
recognized that police entry into a home was justified when, responding to
reports of a loud party, police saw the defendant in his home, alone, and in an
extremely intoxicated state.  He did not respond to their knocks or yells
or even the beam of a flashlight shined in his eyes.  As they watched from
outside, he arose and walked into a wall, before stumbling into an adjoining
room.  Such circumstances, we concluded, would lead a reasonable officer
to be concerned for the defendant’s well being.  Id. at 493, 769 A.2d 646.  
¶ 19.        
In contrast, here, an officer approaching defendant’s home, armed only
with the knowledge that a motorist had claimed to be trapped in his car miles
away, would need more than footprints and a darkened home to reasonably believe
emergency assistance was immediately necessary.  Unlike other emergency
assistance cases wherein courts have upheld police searches of homes connected
to reported automobile accidents, here there was insufficient evidence to
suggest that an emergency existed inside the home.  Cases from sister
jurisdictions uniformly involve additional evidence beyond an accident report
to justify an officer’s entry into a home following a report of a car
accident.  See, e.g., City of Troy v. Ohlinger, 475 N.W.2d 54
(Mich. 1991) (officer responded to report of injury accident, cross-referenced
license plate number with residence, and saw damaged car outside home); City
of Fargo v. Ternes, 522 N.W.2d 176 (N.D. 1994) (responding to hit-and-run
injury accident, officers went to residence and saw damaged pickup parked
outside with blood on truck seat and on door of residence).
¶ 20.        
The third prong of Mountford was likewise unfulfilled, as the
scope of any search justified by the situation that occurred in Hartford as a result of
the 9-1-1 call could not extend to the house in Williamstown forty miles away
without “some reasonable basis, approximating probable cause, to associate the
emergency with the area or place to be searched.”  171 Vt. at 490, 769 A.2d at 644 (quotation
omitted).  By searching the grounds of the home and peering into the
basement windows when there was insubstantial evidence at the residence that
anyone—let alone the potentially injured motorist—was home, the trooper
exceeded the scope of any emergency which arose from a reported car accident,
especially given the scant evidence connecting defendant’s home with the 9-1-1
call.  With the nature of the emergency very vague and no basis to
associate defendant’s empty house with that emergency, the scope of a
permissible search had likewise contracted.  Contrary to the State’s
position that the scope of the search necessarily expanded when police were
unable to find the motorist on the Hartford-Quechee Road, with no evidence that
the accident had actually happened or that anyone was actually injured, the
search could not be enlarged without limit and without reason.  Under the
circumstances of this case, the State failed to prove that there was a
connection between the home and a purported accident scene many miles away.
¶ 21.        
As the New Hampshire Supreme Court recognized recently in reviewing its
emergency aid jurisprudence, in most of the cases “there were alarming or
volatile situations warranting [police] entry into the private
residences.  Even where there is a possible victim within a private dwelling
but no volatile situation, we have not found the existence of exigent
circumstances . . . .”  State v. Pseudae,  908 A.2d
809, 813 (N.H. 2006).  Such is the case before us today.  The
State has failed to uphold its burden of demonstrating that the trooper had a
reasonable belief that her entry into the home was immediately necessary to
protect life and limb. The possibility that the motorist was in defendant’s
home and needed aid was a remote possibility and that alone did not make the
police entry into defendant’s curtilage and the search of his home reasonable.
Reversed and
remanded.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 22.        
REIBER, C.J., dissenting.  This case is about the proper
scope of the emergency aid exception—an exception that recognizes those
situations in which acting quickly to save lives takes priority over privacy
interests.  The majority holds today that when a police officer is
informed of a serious car accident and sent to the accident victim’s last known
address, the officer should sometimes risk leaving the victim dying in his home
rather than investigating the situation further.  The majority requires
accident victims to leave visible signs, such as blood tracks or a wrecked
vehicle, before a police officer, absent any evidence of pretense, can lawfully
follow a path around a house and take a cursory look in a window for signs of a
person thought to be injured.  I would not read the emergency aid
exception so narrowly.  Although this is a close case, in my view the
trooper’s actions here were justified by the fact that she was responding to a
recognized emergency and had no reason to believe that the emergency had
dissipated.  I therefore dissent.  
¶ 23.        
A number of courts have recognized that 9-1-1 calls reporting an
emergency “can be enough to support warrantless searches.”  United
States v. Richardson, 208 F.3d 626, 630 (7th Cir. 2000) (citing
cases).  This is particularly true when the caller has identified
himself.  Id.;
see also, e.g., State v. Matthews, 2003 ND 108, ¶ 18, 665 N.W.2d
28.  When an identified 9-1-1 caller reports an emergency, “[t]he
efficient and effective use of the emergency response networks requires that
the police (and other rescue agents) be able to respond to such calls quickly
and without unnecessary second-guessing.”  Richardson, 208 F.3d at 630.  We
have similarly stated that police officers must respond quickly and thoroughly
to reported emergencies:
The
business of policemen and firemen is to act, not to speculate or meditate on
whether the report is correct.  People could well die in emergencies if
police tried to act with the calm deliberation associated with the judicial
process.  
 
State v. Mountford, 171 Vt.
487, 493, 769 A.2d 639, 646 (2000) (quotation and internal citation omitted). 
¶ 24.        
In my view, the trial court correctly concluded that the trooper acted
reasonably, and there was, therefore, no violation of defendant’s privacy
interests.  Although in retrospect we know that there was not an injured
person in defendant’s home and that there might not have ever been an actual
emergency, these facts were not known to the trooper at the time she arrived at
defendant’s home.  Though such hindsight may be clear today, it cannot
affect our analysis.  See, e.g., Hunsberger v. Wood, 570 F.3d 546,
555 (4th Cir. 2009) (holding that although it turned out that no one was
actually in danger, “we cannot judge [the trooper’s] search based on what we
know in hindsight,” because “[a]t the time of the search, there was reason to
think [someone] needed help”).  Here, the police had received a 9-1-1 call
stating that there had been an accident.  The accident victim identified
himself and said that he was trapped in his car.  When an emergency rescue
crew was unable to locate anyone where the accident had reportedly occurred,
the police followed standard operating procedures and dispatched a trooper to
the victim’s last known address.  When the trooper arrived at the home,
she saw footprints in the snow leading to the back of the building.  She
followed those footprints.  After several attempts at knocking and
announcing her presence, but hearing no reply, she concluded that an injured
person might be unconscious or otherwise incapacitated and therefore unable to
answer the door.  To determine whether there was a seriously injured
person inside the house, she peered through a window.  
¶ 25.        
The trial court held that each step that the trooper took was
reasonable.  The majority reaches a different conclusion today based upon
its finding that “the trooper testified to nothing that would justify a
‘reasonable belief’ that the motorist was inside and in need of immediate
assistance.”  Ante, ¶ 17.  The majority’s conclusion
rests primarily on the following two weaknesses in the State’s argument: (1)
the trooper traveled to a location that was “at least forty miles” from the
reported location of the accident, ante, ¶ 17; and (2) upon
arriving at the scene, the trooper failed to discover additional “evidence
supporting a reasonable belief that there was an immediate need for emergency
assistance in those areas,” ante, ¶ 17 n.2.  Although I agree
that these facts make this a close case, we have previously noted that in close
cases “we should be deferential” to the trooper’s evaluation of the
situation.  Mountford, 171 Vt. at 493, 769 A.2d at 646.  The
majority goes too far in holding that these facts support reversing the trial
court’s decision.  
¶ 26.        
Distance between the reported location of the accident and the area
searched does not necessarily make the search unreasonable.  In Matthews,
for instance, the court upheld the application of the emergency aid exception
when police officers searched a residence in Fargo, North Dakota, even though
the 9-1-1 call in that case reported that the emergency was occurring a number
of miles away in Horace, North Dakota.  2003 ND 108, ¶ 19.  The
inquiry turns on whether the officer had a reasonable belief that a seriously
injured person was in the home.  See, e.g., id. ¶¶ 43-44
(holding that when police officers responding to an emergency “could
have . . . reasonably believed there remained a possibility
that [people] may have been inside the house,” and entered the house to confirm
or dispel this belief, the “scope of the search was reasonable in view of its
objectives”).  Here, the trooper responding to a reported emergency had a
reasonable belief that emergency assistance may have been needed at defendant’s
home.  This belief was supported by the underlying 9-1-1 call reporting a
serious accident involving a vehicle off the road without details as to its
precise location, combined with the failure of several emergency rescue teams
to find the named victim.  Based upon this information, the officer could
reasonably conclude that the victim might have found his way home, but was
still in need of medical assistance.  Indeed, that is precisely why police
protocol requires a welfare check at the last known residence of someone who is
reported as injured.  
¶ 27.        
Because the trooper already had a reasonable belief that an
emergency existed when the trooper arrived at defendant’s home, the trooper did
not need to discover additional “evidence supporting a reasonable belief that
there was an immediate need for emergency assistance” at the house.  Ante,
¶ 17 n.2.  As the United States Supreme Court recently stated,
“[o]fficers do not need ironclad proof of a likely serious, life-threatening
injury to invoke the emergency aid exception.”  Michigan v. Fisher,
130 S. Ct. 546, 549 (2009) (per curiam) (quotation omitted).  Similarly,
other courts have rejected the requirement that additional evidence—beyond the
existence of a recognized emergency—is required before police officers can
respond to these emergencies.  See, e.g., Schreiber v. Moe, 596
F.3d 323, 331 (6th Cir. 2010).  In Schreiber, the court held that
the emergency aid exception applied even though “this case lack[ed] some of the
more outward manifestations of violence that often support a finding of
exigency,” such as “signs of blood, broken objects, or gunfire.”  Id.
(citations omitted).  The court noted that blood stains or other outward
manifestations of violence “are not prerequisites to a finding of
exigency.”  Id.; accord State v. Fausel, ___ A.2d ___, ___,
No. 18249, 2010 WL 1541512, at *7 (Conn. Apr. 27, 2010) (“Direct evidence of an
emergency is not required . . . .”).  The New York
Court of Appeals came to a similar conclusion in People v. Mitchell, 347
N.E.2d 607 (N.Y. 1976), abrogated as applied to Federal Constitution by Brigham
City v. Stuart, 547 U.S. 398 (2006).  The Mitchell court
created the three-part test that we later adopted in Mountford, 171 Vt.
at 490-91, 769 A.2d at 644.  The Mitchell court explicitly rejected
the idea that “obvious signs which connect the place to be searched with the
emergency, for example, screams or the odor of a decaying corpse” were needed
to invoke the emergency aid exception, and the court held that the emergency
aid exception applied in that case even though “no such apparent clues were
found.”  347 N.E.2d at 610. 
¶ 28.        
The majority cites Mountford for the proposition that a lack of a
response from the trooper’s knocking “was insufficient to support a belief that
anyone was inside the house or that there was an immediate need for medical
attention.”  Ante, ¶ 17.  That is, of course, true, but
here the trooper’s belief rested on much more than a lack of response. 
The trooper was responding to a 9-1-1 emergency call reporting a serious
accident, and the reported victim could not be found.  The trooper was
sent to perform a welfare check to determine whether the accident victim had
returned home and whether he was in need of medical attention.  As
discussed, these circumstances in themselves created a reasonable belief that a
seriously injured person was in the house.  A lack of response to the
trooper’s knocking is perfectly consistent with the reasonable belief that the
accident victim may have returned home and may have been too injured to answer
the door.  At that point, the trooper was justified in entering the
curtilage and looking through a window to see if an injured person was in the
house.  Cf. United States v. Barone, 330 F.2d 543, 545 (2d Cir.
1964) (upholding a warrantless search under the emergency aid exception when
the “investigation . . . would have been incomplete without
finding out . . . whether anyone there might be in need of
aid”).[3]
¶ 29.        
Because the trooper did not need any additional evidence to carry out
the limited search she performed, it is irrelevant whether the record
established that the footprints in the snow were recent.  The important
thing is that the record did not establish a complete lack of footprints in the
snow or anything else that would dissipate the reasonable belief that the
trooper had when she arrived on the scene.  
¶ 30.        
The only relevance the footprints could possibly have is to provide
additional support for the trooper’s reasonable belief that an injured person
was in the home.  The trial court made a factual finding that the trooper
had seen “recent footprints leading to the basement door.”  The majority
recognizes that our review of the trial court’s factual findings is
deferential.  Ante, ¶ 7.  Further, given that the State
was the prevailing party below, we can only overturn the trial court’s factual
findings if, taking all of the evidence in the light most favorable to the
State and excluding all modifying evidence, “there is no reasonable or credible
evidence to support them.”  State v. Rheaume, 2005 VT 106,
¶ 6, 179 Vt. 39, 889 A.2d 711.  
¶ 31.        
In light of this highly deferential standard, I cannot agree with the
majority’s conclusion that the trial court had “no evidence to support the
finding that the footprints or entry into the residence were recent.”  Ante,
¶ 8.  The existence of “footprints in the snow” is often cited as the
preeminent illustration of how a reasonable inference can be made from
circumstantial evidence: “when footprints are discovered after a recent snow,
it is certain that some animated being has passed over the snow since it
fell.”  Commonwealth v. Webster, 59 Mass. 295, 312 (1850); see also
Commonwealth v. Zehner Bros. Farm Prods., 70 Pa. D. & C.2d 501, 508
(Ct. Common Pleas 1972) (referring to this passage from Webster as “the
most vivid and well-known illustration of circumstantial evidence”). 
Although the trooper might not have stated how fresh the snow was, it seems to
me that in a state like Vermont, where snowfall is a regular occurrence during
the winter months, it is reasonable for a trooper to assume, without declaring,
and especially in an emergency, that footprints in snow are either recent
enough to bear following or not necessarily so old as to be irrelevant.
 Indeed, that this is obvious may have led the trooper not to state it
directly in her testimony—most Vermonters simply take it for granted that,
because it snows so often during the winter, footprints in the snow are not
necessarily old.  For that matter, even if footprints appear old, it is
not uncommon for people to retrace and step into existing footprints in snow to
avoid having to break new trail.     
¶ 32.        
To the extent that there is any debate over the recentness of the
footprints, “we should be deferential” to the trooper’s evaluation of the
situation in response to an emergency.  Mountford, 171 Vt. at 493,
769 A.2d at 646; accord, e.g., State v. Frankel, 847 A.2d 561, 568 (N.J.
2004) (“[T]hose who must act in the heat of the moment do so without the luxury
of time for calm reflection or sustained deliberation.”).  Here, it was
reasonable for the trooper to expect that the footprints could lead to another
door where an injured person could have entered—all consistent with the
supposition that an injured accident victim, not found at the scene of a
reported accident, could be inside his home.  Police officers routinely
make quick decisions based on the existence of footprints in snow, and courts
have consistently upheld such actions.  See, e.g., People v. Clark,
547 P.2d 267, 271 (Colo. App. 1975) (holding that when footprints in snow at
recent crime scene led to apartment building where defendant lived, warrantless
entry of home and search for boots was proper, as wetness of boots would be
highly probative evidence in need of preservation).
¶ 33.        
This case is not the first time police officers have entered private
property in response to a 9-1-1 call that later turned out not to have been an
actual emergency, and other courts have routinely upheld such actions. 
See, e.g., State v. Macelman, 834 A.2d 322, 327 (N.H. 2003); Frankel,
847 A.2d at 576.  In Macelman, the New Hampshire Supreme Court held
that the emergency aid exception applied to police actions premised on far
fewer facts indicating an emergency than the investigatory actions that
occurred here.  The apparent emergency in Macelman arose from an
anonymous tip reporting that a car was behind the defendant’s residence and
looked as if it might go over an embankment.  When the officers arrived on
the scene, their view of the vehicle was obstructed.  The officers knocked
on the defendant’s front door, but received no response.  They then
entered the defendant’s backyard and approached his vehicle to see if the
vehicle’s occupants needed any assistance.  At this point, the officers
saw smoke and other indications of marijuana use and arrested defendant. 
It turned out that the vehicle was on a flat part of the yard and had a fence
between it and the embankment.  Nevertheless, because the officers could
not see that the vehicle was safe until they approached it, the court held that
“under the ‘emergency aid’ exception to the warrant requirement the police were
entitled to enter the property and to approach the car to confirm or dispel
their reasonable belief that an emergency existed.”  834 A.2d at
328.  As the court noted, the requirement of a reasonable belief “is a
lower standard than the probable cause required for an ordinary search or
seizure.”  Id. at 326.
¶ 34.        
Similarly, in Frankel, a dispatcher received a 9-1-1 call from
the defendant’s house, but no one was on the line, and when the police called
back they received a busy signal.  An officer then went to the defendant’s
home to perform a welfare check.  When the officer arrived, the defendant
denied having made a 9-1-1 call.  The officer observed that the defendant
was nervous and that a lawn chair propped against a door might have been placed
in such a way as to form an obstacle to someone trying to leave the
house.  Believing that the defendant might be hiding a victim in his
house, the officer called for backup and entered the home without a warrant. 
There was no victim in the house, but the officer’s limited search did reveal a
number of marijuana plants and grow lights in plain view.  The defendant
filed a motion to suppress and argued that the officer’s warrantless search
violated his constitutional rights.  The New Jersey Supreme Court affirmed
the denial of the motion and held that the officer’s actions fell under the
emergency aid exception to the warrant requirement.  847 A.2d at
576.  The court recognized that this was a “close case,” and that “[t]he
sanctity of one’s home is among our most cherished rights,” but nonetheless
held that in these circumstances “the duty to preserve and protect life and the
need to act decisively and promptly must outweigh the privacy interests of an
individual.”  Id.; accord, e.g., Mitchell, 347 N.E.2d at 611
(“Constitutional guarantees of privacy and sanctions against their
transgression do not exist in a vacuum but must yield to paramount concerns for
human life and the legitimate need of society to protect and preserve life.”).
¶ 35.        
In summary, this case is about how far police officers can go in
responding to recognized emergencies.  In my view, the Arizona Supreme
Court had it right when it noted that “we do not want to deter police officers
from engaging in searches for persons in distress.”  State v. Fisher,
686 P.2d 750, 763 (Ariz. 1984).  Many courts have gone further and have
held that we cannot deter such conduct because there is a “general obligation
of police officers to assist persons whom they reasonably believe are in
distress.”  Id. at 760 (citing cases); accord, e.g., Frankel,
847 A.2d at 574 (“Courts are loath to second-guess decisions made in good faith
with the intent of protecting life when the circumstances clearly reveal a
legitimate emergency that will not abide delay.”).  Under the majority’s
limited interpretation of the emergency aid exception, police officers are now
asked to ignore this general obligation and risk leaving injured people
undiscovered rather than briefly and logically investigating the situation
further.  That is not the message that I would send to our law enforcement
officers.  For these reasons, I respectfully dissent.
¶ 36.        
I am authorized to state that Justice Burgess joins in this dissent.

 


 


 


 


 


 


 


 


 


 


 


Chief Justice

 





[1] 
As defendant’s argument is grounded solely in the Vermont Constitution,
specifically Article 11, we base our decision upon that foundation, pausing
only to note that “we have . . . long held that our traditional
Vermont values of privacy and individual freedom—embodied in Article 11—may
require greater protection than that afforded by the federal
Constitution.”  State v. Bauder, 2007 VT 16, ¶ 10, 181 Vt. 392, 924
A.2d 38.  Thus, all references to federal cases are by way of illustration
only.


[2] 
It is important to note that this conclusion does not prevent any future
welfare checks based on emergency calls.  As defendant rightly conceded,
the trooper’s presence in his driveway and dooryard, and her knock upon his
door, did not constitute an unlawful search.  See State v. Ryea,
153 Vt. 451, 453, 571 A.2d 674, 675 (1990) (driveway, though part of curtilage,
“constitutes a semiprivate area” not afforded full constitutional
protection).  Had she discovered evidence supporting a reasonable belief
that there was an immediate need for emergency assistance in those areas, she
could have continued her search.


[3] 
Some courts have held that in these circumstances an officer is even justified
in entering someone’s home to investigate a reported emergency.  See,
e.g., Matthews, 2003 ND 108, ¶ 20 (noting that various “jurisdictions
have upheld a warrantless search in circumstances in which the presence of a
person inside the searched dwelling was unknown at the time of entry”). 
We need not go that far here to hold that the trooper was justified in the
limited search she performed from outside defendant’s home.  



