State of Vermont v. Christian Allis

The facts as found by the trial court in defendant’s civil suspension hearing may be

summarized as follows. On October 5, 2015, a St. Albans police officer responded to a report of

a motor vehicle crash at a parking lot in St. Albans. Upon arrival at the scene, the officer observed

a pickup truck in a ditch near a telephone pole and tire marks in the gravel that suggested the

vehicle had been doing “donuts.” Front-end damage to the vehicle indicated that the vehicle had

struck the pole before landing in the ditch. The officer checked the license plate registration and

identified defendant as the vehicle’s owner.

¶ 3. The officer testified that he then went to defendant’s residence and, at the door,

spoke with defendant’s girlfriend, who also lived at the residence. Defendant’s girlfriend testified

that, upon answering the door, the officer asked for defendant, stating that he was investigating an

accident. Defendant’s girlfriend told the officer that she would see if defendant was home, though

she knew that he was, and then shut the door and called to defendant, who came down to the

kitchen. She then returned to the door and opened it, so that from the doorway defendant was

visible to the first officer, as well as a second officer that joined him. As she explained in her

testimony at defendant’s civil suspension hearing: “[Defendant] came down into the kitchen and I

had opened the door and I made a gesture to [the officer] that he’s right there.” She recalled that

she then went into the kitchen while the officers asked defendant a few questions from the

doorway, and “the next thing I know” the officers were in the kitchen. She did not see them come

up the steps leading from the doorway to the kitchen and did not ask them to come in or verbally

consent to a request from the officers to enter the residence. Nor did she tell them not to enter or

to leave. She did acknowledge that she knew the officers’ intent was to speak with defendant when

she went to retrieve him.

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¶ 4. The State did not ask the investigating officer whether he had permission to enter

the house; and the officer did not testify to the gesture the girlfriend alleged she made. In fact, he

testified that defendant came to the door. The officer testified that defendant appeared to be

“heavily intoxicated” and that the officer detected an odor of alcohol. The officer asked defendant

to step outside and, after additional questioning, arrested him for DUI and transported him to the

station for blood alcohol testing. The test revealed that defendant had a blood alcohol content of

0.348%. The second officer did not testify.

¶ 5. Following a civil suspension hearing, defendant, through counsel, moved to

suppress all evidence obtained subsequent to the officers’ entrance into his residence. Defendant

claimed that the officers’ entry into his home was unlawful and that, therefore, the information

obtained thereafter must be excluded. The trial court denied defendant’s motion in a written ruling,

concluding that defendant’s girlfriend had “implicitly invite[d]” the officers into the home. The

court found as fact that the investigating officer “interpreted her action as inviting him in.” This

appeal followed.

¶ 6. A trial court’s decision on a motion to suppress is a mixed question of fact and law,

“that is, whether the factual findings supported by the record lead to the conclusion, that, as a

matter of law, suppression of evidence was or was not necessary.” State v. Lawrence, 2003 VT

68, ¶ 9, 175 Vt. 600, 834 A.2d 10 (mem.). Thus, our review is two-fold with respect to whether

consent was given. We “apply a clearly erroneous standard” to the trial court’s factual findings

and independently review its ultimate legal conclusion concerning suppression. State v. Stevens,

2004 VT 23, ¶ 10, 176 Vt. 613, 848 A.2d 330 (mem.) (quotation omitted).

¶ 7. Defendant asks us to hold that, as a matter of law, law enforcement may not enter

a home unless officers request permission to enter and subjects explicitly grant such permission.

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Because the investigating officer did not ask to enter defendant’s home and there was no explicit

grant of permission, the rule defendant requests would decide this case in defendant’s favor. But

this rule would also require us to disregard the settled rule that “[c]onsent can result from conduct

which would be understood by a reasonable person as conveying consent.” Id. ¶ 13; see also Harris

v. Carbonneau, 165 Vt. 433, 437, 685 A.2d 296, 299 (1996).1

¶ 8. The necessary conduct can vary. In Stevens, the defendant implied consent to

search her property when she retrieved the key to a kennel and opened the kennel for law

enforcement at their request. Stevens, 2004 VT 23, ¶ 13. And in Harris, the defendant similarly

implied consent when she opened an interior door, attempted unsuccessfully to open an exterior

door, and then backed her wheelchair out of the way as a process server opened the door and

entered. Harris, 165 Vt. at 437, 685 A.2d at 299.

¶ 9. The Fourth Amendment of the U.S. Constitution protects “[t]he right of the people

to be secure in their . . . houses . . . against unreasonable searches and seizures.” And Chapter I,

Article 11 of the Vermont Constitution guarantees “[t]hat the people have a right to hold . . . their

houses . . . free from search and seizure.” These provisions are implemented by the rule that a

search is typically lawful only with probable cause and a warrant or with the voluntary consent of

someone authorized to give such consent. State v. Zaccaro, 154 Vt. 83, 87, 574 A.2d 1256, 1259

(1990); see also Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

¶ 10. When the State seeks admission of evidence obtained during a search based on

consent, the State bears the burden of demonstrating that someone authorized to consent did, in

fact, voluntarily give such consent. State v. Sprague, 2003 VT 20, ¶ 23, 175 Vt. 123, 824 A.2d

1 The parties have not distinguished between the consent necessary to enter a dwelling and the consent to search the dwelling. In light of their position, we do not consider whether a separate consent standard would apply.

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539 (holding that “[t]he State bears the burden . . . of demonstrating that the consent was freely

given”); Florida v. Royer, 460 U.S. 491, 497 (1983) (affirming that “where the validity of a search

rests on consent, the State has the burden of proving that the necessary consent was obtained”);

Bumper v. North Carolina, 391 U.S. 543, 548 (1968) (“When a prosecutor seeks to rely upon

consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in

fact, freely and voluntarily given.”).

¶ 11. In analyzing this case, we start with the facts. Two witnesses testified to the

relevant events. The State’s witness—the investigating officer—testified that defendant came to

the door; his testimony did not address the officer’s entry into the house. Without stating so, the

court rejected the officer’s testimony. Instead, the court accepted most of the testimony from the

other witness—defendant’s girlfriend.

¶ 12. One of the findings could be based only on testimony from the officer: “Although

[defendant’s girlfriend] had not expressly stated that [the officer] could come into the house, he

interpreted her action as inviting him in.” There is no testimony from either witness that supports

the last phrase of this finding—that the officer interpreted the girlfriend’s action as an invitation

to enter. The finding is clearly erroneous.

¶ 13. The court followed the above finding with the following finding: “Therefore, [the

investigating officer] and another officer walked through the doorway that [defendant’s girlfriend]

had just opened for him, and they followed her into the entry way, up the short set of stairs and

into the kitchen, where the officers met and spoke with the defendant.” The finding is made

misleading by the opening word “therefore,” suggesting that the entry into the house occurred

because the officer interpreted the girlfriend’s actions as an invitation. It also appears to be

misleading with respect to timing, specifying that the officer walked through the entry door into

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the house just after it was opened. In fact, the only evidence was that after the girlfriend opened

the door and walked up to the kitchen, a conversation started between defendant and the officers

who were standing outside the door. At some point after asking defendant questions, the

investigating officer entered the house through the open door and proceeded to the kitchen. While

the officer entered the house through an open door, he did not do so just after it was opened and

he did not closely follow the girlfriend into the kitchen. He had already “met” defendant through

his questioning. While this finding might survive a clearly erroneous challenge, when properly

understood in light of the evidence, it provides no support for the trial court’s decision that consent

for entry had been granted.

¶ 14. The evidence of the girlfriend’s actions was sparse, and the court made only three

findings regarding her actions: (1) the girlfriend called out to defendant, telling him there was a

policeman at the door to see him; (2) she opened the front door and motioned towards defendant

and said, “he’s right here”; and (3) she walked into the kitchen. Based on these facts, the court

concluded: “By opening the door, indicating that she had brought the defendant downstairs, and

then walking into the kitchen, she was implicitly inviting [the investigating officer] inside their

home.” The court did not find that the girlfriend, as the State argues, gestured for the police to

enter the home. In fact, the gesture—whatever it was intended to be—apparently played no part

in the trial court decision.

¶ 15. The State and defendant have cited numerous decisions related to implied consent,

showing that the result in each is controlled by the facts. Perhaps the closest case for the State is

Harris v. Carbonneau, a civil case in which a process server was sued for entry without consent

into plaintiff’s home to serve process. In that case, the process server knocked on a front storm

door and identified himself, and the plaintiff, who was in a wheelchair, opened the inner door, but

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could not open the storm door despite trying. Plaintiff pulled her wheelchair back to enable the

process server to open the storm door and enter the house. We held that the facts were sufficient

to enable the question of consent to go to the jury. Harris, 165 Vt. at 437, 685 A.2d at 299.

¶ 16. There are significant differences between this case and Harris. For example, the

purpose of plaintiff’s action in Harris in moving the wheelchair backwards was clear—to allow

the process server to enter. In this case, the girlfriend’s reason for walking away from the door

was unclear, and could be explained as enabling communication between the officer and defendant

without the girlfriend between them, exactly, at least in the beginning, what occurred.

¶ 17. The greatest difference, however, is that in Harris the factfinder was the jury,

charged with determining whether consent had been given. The jury could have decided that

question with either result. Here, we must arrive at the result relying on the trial court’s findings

of historical fact that are supported by the evidence and making our own decision on the result to

reach. We are not bound by the trial court’s conclusion on this question, though we are bound by

its determination of historical facts to the extent the facts found are not clearly erroneous. This

constraint is of limited significance here because, as we held above, key findings on which the trial

court apparently relied are clearly erroneous.

The State had the burden of production and persuasion that implied consent to enter was present. It certainly did not meet its burden of production, but we must look at all the evidence, here mostly defendant’s evidence. We conclude that there is not sufficient evidence of implied consent. As a matter of law, the girlfriend’s actions were not sufficient to convey to a reasonable

observer that the observer had received consent to enter the house of defendant and the girlfriend. Like the trial court, we give no weight to the “gesture” in our decision, concluding it is so ambiguous that it does not support the position of either party.2 The fact that there is no evidence

that the officer believed that the actions of the girlfriend provided consent reinforces our conclusion. The absence of evidence on this point is a glaring weakness in the State’s case.