Appeal from Superior Court, Windsor Unit, Criminal Division
Theresa S. DiMauro, J.
J. Cahill, Windsor County State's Attorney, and Glenn
Barnes, Deputy State's Attorney, White River Junction,
R. Marsicovetere and Robert D. Lees of Marsicovetere Law
Group, P.C., White River Junction, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. Defendant appeals the denial of her motion to
suppress evidence that ultimately led to her
driving-under-the-influence (DUI) processing. We affirm.
2. On January 22, 2014 at about 6:30 p.m., the Vermont State
Police received a tip from an identified caller about the
erratic operation of a motor vehicle in the Town of Bethel.
The caller provided the vehicle's license plate number,
which the State Police used to identify the registered owner
and her address. The arresting trooper parked on South Main
Street in front of the listed address, at which there was a
single story structure. To the right of the main building the
trooper observed an attached structure covered by a roof and
enclosed on three sides. The fourth side of the structure,
the one which faced the street, had two large open doorways
framed in the size and shape of garage doors, but without any
actual doors, such that the interior of the structure was
open at all times to plain view from the street. The trooper
did not observe any signs or placards against trespassing or
entry to the attached structure, or to any other area of the
3. From where he was parked, the trooper saw the suspect
vehicle parked inside the left bay of the attached structure.
He also saw two entryways to the building: one along the
shared wall inside the attached structure, and one on the
left side of the front of the building. The trooper saw an
illuminated paved walkway with a railing leading to the
entryway on the left side of the building. He also saw two
signs for a business, Paini Monuments, one at either end of
the walkway: at the end closest to the street, a large sign
reading "Paini Monuments Established 1959" with a
telephone number hung from a signpost, and above the door to
the entryway, a smaller sign, also related to the business,
was suspended from the left-hand front-corner of the
building's roof. When asked if he thought the entryway on
the left side of the building was a business entrance, the
trooper stated that he could not "say one hundred
percent if it is or is not." It was his belief that the
door inside the attached structure to the right of the
building provided access to the residence.
4. The trooper exited his vehicle and approached the entryway
inside the attached structure. As he entered the left bay of
the attached structure, walking with the suspect vehicle on
his right and the shared wall of the attached structure and
the building on his left, he saw damage to the driver's
side mirror and front-left fender of the car involved in the
report. As he neared the entryway, defendant was readily
observable through the glass of the doorway. Defendant opened
the door and identified herself. The trooper subsequently
conducted field sobriety tests and administered a preliminary
breath test. Defendant was arrested on suspicion of operating
a motor vehicle on a public highway while under the influence
of intoxicating liquor in violation of 23 V.S.A. §
5. On June 1, 2014, defendant was arraigned on a one count
information alleging a violation of 23 V.S.A. §
1201(a)(2) for operating a motor vehicle on a public highway
while under the influence of intoxicating liquor. Defendant
timely requested a civil suspension hearing.
6. On June 11, 2014, defendant filed a motion to suppress in
the criminal and civil cases, and a motion to dismiss in the
civil case. The trial court granted the motion to dismiss,
and ordered a motion hearing on the suppression issue. At the
motion hearing, defendant sought to suppress evidence
obtained and observed by the trooper as he walked through the
attached structure. She argued that the trooper conducted an
illegal warrantless search within the curtilage of her home
when he entered the attached structure, in violation of the
Fourth Amendment of the U.S. Constitution and Chapter I,
Article 11 of the Vermont Constitution. The State opposed
defendant's motion, asserting that constitutional
protections are not absolutely extended to the curtilage. The
trial court declined to address whether the curtilage is
afforded the same protection as a residence. On the facts
established above, the trial court denied defendant's
motion to suppress, finding that a reasonable person could
conclude that the entryway on the left side of the building
was a business entrance; that a reasonable person would
consider the entryway inside the attached structure to be a
point of normal public access; and that defendant did not
have a reasonable expectation of privacy in the interior of
the attached structure, which it characterized as a carport.
7. "A motion to suppress evidence presents a mixed
question of fact and law." State v.
Bauder, 2007 VT 16, ¶ 9, 181 Vt. 392, 924 A.2d 38.
"On appeal from a denial of a motion to suppress, we
review the trial court's findings of facts deferentially
and reverse only if the findings are clearly erroneous."
State v. Ford, 2010 VT 39, ¶ 7, 188 Vt. 17, 998
A.2d 684 (citing State v. Bryant, 2008 VT 39, ¶
9, 183 Vt. 355, 950 A.2d 467). "Under this standard,
'we will uphold the [trial] 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.' " Id. (quoting State v.
Rheaume, 2005 VT 106, ¶ 6, 179 Vt. 39, 889 A.2d
711). 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, 186 Vt. 389,
987 A.2d 939. We review de novo the trial court's legal
conclusion-or "constitutional fact"-as to whether
the trial court's findings establish a reasonable
expectation of privacy sufficient to afford protections under
the Fourth Amendment and Article 11. State v.
Sprague, 2003 VT 30, ¶ 24, 175 Vt. 123, 824 A.2d
8. Defendant challenges the trial court's factual
findings and legal conclusion, arguing that the court: (1)
erred when it found that the attached structure was a
carport, rather than a garage; and (2) incorrectly concluded
that the trooper lawfully entered the curtilage of her home
for a "knock and talk, " because the entryway
inside the attached structure was not a normal access route
for anyone visiting the residence.
9. Defendant's first challenge is not to a finding of
fact so much as to the trial court's terminology.
Defendant challenges the trial court's description of the
attached structure as a carport, rather than as a garage. She
argues that Merriam-Webster defines carport as "a
shelter for a car that has open sides and that is usually
attached to the side of a building, " whereas the
evidence at trial demonstrates that the attached structure,
although a shelter for a car attached to the side of a
building, was enclosed on three sides. For this reason,
defendant argues that the trial court should have described
the structure as a garage, defined as "a building or
part of a building in which a car, truck, etc. is kept."
The State, borrowing from Shakespeare, asks "what's
in a name?" William Shakespeare, Romeo and Juliet act 2,
sc. 2 ("That which we call a rose by any other name
would smell as sweet."). More specifically, the State
asserts that the distinction is irrelevant because
defendant's expectation of privacy does not depend on
whether the trial court describes the structure as a carport
or a garage, but rather on the nature of the structure
10. Defendant makes a reasonable, if immaterial, argument.
Because neither the trial court's factual findings nor
its legal conclusions depended in any way on whether the
structure was a garage or a carport, the trial court's
description of the structure had no legal significance.
Neither "carport" nor "garage" are terms
of art under Fourth Amendment law, and neither has a
technical or specialized meaning in this context. See
Black's Law Dictionary 1483 (7th ed. 1999) (defining term
of art as "a word or phrase having a specific, precise
meaning in a given specialty, apart from its general meaning
in ordinary contexts."). The description of the
structure as a carport, or as a garage, will not affect
application of Fourth Amendment and Article 11 principles.