On Appeal from Superior Court, Rutland Unit, Criminal Division 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. 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.  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. 
¶ 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.
¶ 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 ...