Friday, October 7, 2011

Remembrance of Voluntary Consent Past

By Nicole Killoran

State v. Weisler & State v. King, 2011 VT 96

Today’s opinion, a lengthy and rare double-header, grants us a brief glimpse into a concept with enormous importance for appellate courts: the standard of review.  While the concept may seem esoteric to those outside the cloistered world of appeals, it is in fact grounded in human behavior.  Due to the dual nature of appellate review, and the need for appellate sensitivity when reviewing lower court decisions, the standard of review is the threshold for consideration, the lens through which the lower court’s findings and conclusions will be scrutinized.  Today’s case considers what standard of review should apply to trial court decisions regarding whether consent to a police search was truly voluntary.


One fateful night in September, 2009, defendants Weisler and King were travelling along Interstate 91 with their friend and vehicle-owner, Stone.  An industrious police officer, monitoring traffic on the highway, noticed that Stone’s license plate was not illuminated, and decided to stop the vehicle.  After requesting Stone’s license and registration, and inquiring as to his travel plans, the officer apparently observed what he believed to be “marijuana flakes” on passenger Weisler’s shirt. 

The fact that there was no marijuana in the vehicle, as the officer later discovered, leads me to believe that this may have just been a bad case of dandruff.  However, the officer found this reason enough to ask Stone to exit the vehicle and isolate him in his police cruiser while he investigated the driver’s criminal history.  After several minutes of discussing Stone’s prior drug arrest in the cruiser, the officer returned to the vehicle and the two waiting passengers, leaving Stone in the cruiser to watch what happened next.

The officer asked for Weisler’s ID when he returned to the vehicle.  When Weisler reached to grab it from behind the seat, the officer observed on the floor of the car a box of cellophane wrap and that ubiquitous indicator of nefarious wrongdoing: a clear baggie full of white powder.  The officer ordered the two men out of the vehicle, drew his gun, shouted commands for them to get down on the ground, handcuffed them, and searched them.

Once the officer had subdued the defendants, he returned to the cruiser.  The officer informed Stone that there was a “big bag of cocaine” in his car, though he apparently failed to mention the suspicious dandruff . . . er, marijuana flakes.  The officer informed Stone that despite the fact that they were lying handcuffed on the ground, the men were not under arrest, and asked if he could search Stone’s vehicle please-and-thank-you?  According to the officer, he discussed with Stone the fact that he did not have to consent to a search.  The officer also threatened to get a search warrant from a judge if Stone did not allow the search.  Stone eventually submitted and signed a consent form, allowing the officer to search the vehicle and seize the bag of cocaine and a few items of paraphernalia.

The state charged all three men with possession of cocaine.  All three subsequently filed a joint motion to suppress, claiming that the officer had no reasonable suspicion of wrongdoing to cause him to order Stone out of the vehicle, and that the subsequent consent to search was coerced by the show of force Stone observed from the cruiser.  The court denied the motion.  Weisler and King then entered conditional guilty pleas, and filed separate appeals to the SCOV.  Since the facts and issues were the same, the SCOV consolidated them into a single case.

The ultimate decision of whether the trial court reached the appropriate conclusion on the motion to suppress is a rather minor point in the overall opinion, and could not be addressed until the SCOV resolved the threshold question of what standard of review should apply to the issue of voluntariness of consent.  Defendants maintained that, because the voluntary nature of consent is either a “constitutional fact” or a “mixed question of law and fact,” it should be subject to de novo review on appeal.  The State, not surprisingly, insisted that voluntariness is strictly a question of fact and therefore only subject to review for clear error.

The difference between these two standards of appellate review reflects some basic assumptions about human behavior.  The traditional province of the trial court is to consider evidence, gauge the credibility and demeanor of parties and witnesses, and make an ultimate legal conclusion based on the facts admitted in evidence.  Appellate courts trust that trial courts will make logical conclusions about questions of fact because they are directly involved in the proceedings and thus privy to subtleties that appellate court never see.  Thus, for questions of pure fact, appellate courts grant a significant amount of deference to the trial court’s conclusions.  Under the “clear error” standard of review, an appellate court will only overturn a factual finding if there was “no reasonable or credible evidence to support it.”

While the system assumes that trial courts know best in matters of fact, the opposite is true with questions of law.  Because the traditional province of appellate courts is to review trial court determinations for soundness and error, and because an appellate court is responsible for developing the body of law that will be used at that level, it is assumed that appeals courts are in a position of greater knowledge and ability to reach correct legal conclusions.  Thus, appellate courts review de novo, or “from the beginning,” questions that require application of the facts to the law, granting no deference to the trial court’s conclusions but rather examining the facts to see if the appellate court would reach to the same conclusion.

So, with this in mind, the lengthy discussion the SCOV takes up in today’s case, and the spicy dissent that follows the majority opinion, can be boiled down to a decision of whether or not to treat the trial court’s determination with deference or rigor. 

The SCOV starts out looking at the most important cases in this area starting with State v. Sprague, 2003 VT 20.  Sprague established what the SCOV characterizes as a “two-step” approach to reviewing the voluntary nature of a consent.  You start with the issues of historical fact (facts leading up to the moment a search commenced), which are reviewed for clear error.  Then you look to the ultimate legal conclusions or constitutional facts (whether the search was in fact voluntary), which are reviewed de novo.  The problem is that none of the decisions following Sprague considered in depth the reasons for adopting such an approach. 

Not satisfied with the lack of reasoning in its jurisprudence on the issue, the SCOV begins an analysis and discussion on the relative merits of a clear error vs. de novo review of voluntariness of consent decisions in which it seeks to create a reasonable standard of review that will not only work but will have the reasoning necessary to stand up to future scrutiny. 

In this respect, the SCOV is behaving as no other branch of government can.  When the governor or the legislature changes course or announces a new initiative, they need not give a reason.  They may tout the change in a speech, but rarely do they have to defend the purposes behind the change.  The SCOV, like all other courts, must, as a function of its nature and history, ground its decisions and changes upon a written opinion that not only reads well today but that will apply and resound with force in the future when circumstances are different.  In this respect, a long-winded, intense opinion from the SCOV represents something precious and rare: Government explaining and thinking for itself.

So the discussion begins by taking a survey of the law outside Vermont.  The SCOV notes that federal courts tend to favor the clear error standard.  The SCOV traces this trend back to Schneckloth v. Bustamente, 412 U.S. 218 (1973), a case considering the voluntariness of a confession, but in which the standard of review was not an issue.  The SCOTUS concluded in Schneckloth that the voluntariness of a confession is a question of fact to be assessed by the “totality of all the surrounding circumstances,” including the actions of the accused and the officer conducting the interrogation, and thus subject to clear error review.  Despite this standard, subsequent SCOTUS decisions have gone the other way and stated that the voluntary nature of a confession or a consent to search is subject to de novo review, even though it is by nature a question of fact whether the defendant voluntarily consented or confessed.  These decisions were reached, the SCOV notes, in part due to the belief that “independent review by appellate courts provides useful precedents to ‘guide future decisions’ ” in Fourth Amendment cases.  Such facts are, in other words, “constitutional facts” that federal appellate courts must review de novo in order to “guide police, unify precedent, and stabilize the law.”

Amongst state courts, the SCOV notes that there is a split on this issue.  Some state courts seem to prefer the two-step approach the SCOV adopted in Sprague, reviewing historical facts for clear error and conclusions of voluntariness de novo.  Other courts continue to defer to the trial judge and review for clear error.  These courts rely on three similar lines of reason, and the SCOV rejects them all. 

First, there is a concern that de novo review is a waste of judicial resources and encourages frivolous appeals.  But, as the SCOV says, this same argument could be applied to any issue of law subject to de novo review, and is even less persuasive in a state like Vermont where convicted criminals have a right to appeal to the state’s high court.

Second, there is a concern that appellate courts need to exercise some restraint by creating limits on what facts should qualify as “constitutional facts,” given the sensitive nature of factual determinations at the trial court level.  The SCOV acknowledges that this concern is a real one, but dismisses it nevertheless.  The SCOTUS has already established a “reasonably coherent standard-of-review jurisprudence,” and this has been effective in preserving valid issues without dropping the entire system into a case-by-case system of unpredictable chaos.  As proof, the SCOV notes that the SCOTUS has not been afraid to use this standard to apply de novo review to some issues while still applying a deferential review to others.

Third, state courts preferring a deferential clear error standard of review tend to rely on longstanding precedent in reaching such conclusions.  However, such precedent relies, the SCOV notes, on Schneckloth’s characterization of such questions as inherently factual.  What’s more, some state courts have bolstered their conclusions by relying on the SCOTUS’ later case of Ohio v. Robinette, 519 U.S. 33 (1996).  Reliance on this case is troublesome to the SCOV.  While it did affirm Schneckloth’s conclusions, it did so without a particular focus on the standard of review.  Given this fact, and the subsequent SCOTUS cases departing from Schneckloth, the SCOV finds this reason to be similarly unpersuasive.

The SCOV decides that it prefers the reasoning behind courts that have adopted a de novo review to evaluate the voluntary nature of a consent. 

Determining whether a consent was voluntary requires the court to first make finding on the basic facts regarding the defendant’s age, mental state, experience, and the environment in which the consent was obtained.  Then the court must make a conclusion on the legal question, whether a reasonable person in similar circumstances “would have felt free to refuse the officer’s request.”  As you can tell, this is not the type of question that requires the court to consider a particular witness’s “credibility and demeanor.”   It is an legal test that can be applied as easily by the SCOV as by any trial court, which takes it out of the traditional fact-centic the province of the trial court.  The SCOV also states that such a “multi-faceted” inquiry is precisely the type that will benefit from a “body of binding case-law” that will provide further guidance to the police and trial courts.  Such determinations require “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.” In other words, only a court with “broad jurisdiction and authority,” such as the SCOV, can perform such a review.  This is why the SCOV adopts an independent, de novo standard of review of “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.”

Following this marathon of analysis and discussion, the SCOV finally applies this standard of review to the facts of this case.  It quickly concludes that the trial court did not err in concluding Stone voluntarily consented to the search.  The Defendants first claimed that Stone must have been intimidated by the show of force he observed from the police cruiser and that the officer subsequently coerced him into consenting to the search.   But the trial court found no evidence that this was why Stone gave consent.  Such a display of force may have been unsettling, but it was not directed at Stone, and no facts indicate he was overcome with fear.  Thus, the SCOV concludes, the environment in which Stone gave his consent indicates that it was voluntary, and not coerced.

Defendants also claimed that Stone was in police custody, effectively under arrest without probable cause, that his consent was therefore involuntary, and that any subsequent evidence obtained was fruit of the poisonous tree.  The SCOV notes that custody does not in and of itself indicate coercion, and second that a “de facto arrest” does not necessarily “taint” the subsequent consent to search.  The facts and circumstances surrounding Stone’s detention in the cruiser do not seem to indicate that the initial detention was the cause of the officer’s request for consent.  Even if Stone was effectively in custody and under arrest when he consented to the search, the officer observed “marijuana flakes” and a bag of white powder, and thus had probable cause independent of the initial detention to support his decision to ask to search the vehicle.  The SCOV concludes that there was no “taint,” and there is no basis to disturb the judgment of the trial court here.

Or at least the majority concludes.  In a Dissent  which is nearly as long as the majority opinion, Justice Dooley takes the majority to task on its conclusion, preferring to maintain a deferential clear error standard of review in questions of voluntariness, and finding the majority’s holding to be dangerously broad.  The SCOV’s precedent wasn’t broken, the dissent insists, so why fix it?  The dissent also notes that while there is a jurisdictional split amongst state courts, the majority has chosen to follow the minority view.

Appellate judges are not omnipotent, the dissent admonishes, and “we have to accept that other judicial officers may have a better and more informed perspective on a case than we do.”  That is, after all, why appellate courts develop limitations on review of lower court decisions.  As demonstrated in this case, where the district court reached its conclusion on the basis of a live hearing where the officer testified, the trial court is often uniquely positioned to adjudge the evidence and the credibility of witnesses.  Thus, the dissent insists, such determinations should be granted substantial deference and only reviewed for clear error.

The dissent also criticizes the majority’s reliance on various SCOTUS cases.  Federal courts have rejected de novo review in circumstances similar to those presented in this case for several reasons.  An analysis of whether a consent was voluntary ultimately requires the court to consider the individual’s state of mind.  This is an inherently historical fact dependent upon the events leading up to the moment of consent.  Ultimately, the dissent believes 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.”

The majority responds to the dissent’s criticism by defending its choice of precedent and its reliance on the need to unify precedent in such a sensitive area of constitutional law.  Its holding is not overbroad, the majority insists, because it is strictly limited to the issue of a consent to search.  Further, the majority finds the law in this area, including that of the SCOV, to be “strikingly unsettled and inconsistent,” warranting the “fresh review” that the majority has given it.  Though there may be a split of authority, the majority finds the need to review voluntariness of consent independently and provide a unified precedent important enough to follow the minority view.  With regards to the dissent’s criticism of SCOTUS precedent informing the SCOV’s analysis, the majority dissects each of the cases quite thoroughly before concluding that its reasoning was proper and reliable. 

In the end, today’s case stands primarily for its holding that voluntariness of consent to a police search is an issue that should be reviewed de novo by the SCOV, given the importance of establishing a unified precedent that will inform police and lower courts responsible for respecting and upholding the Fourth Amendment. 

One might also say, however, that the life lesson to be gleaned here is to make sure you replace the bulbs on your license plate, and for god’s sake don’t forget your Head and Shoulders.

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