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State v. Powers

Supreme Court of Vermont

October 15, 2016

State of Vermont
John Powers

         On Appeal from Superior Court, Bennington Unit, Criminal Division David A. Howard, J.

          Christina Rainville, Bennington County Chief Deputy State's Attorney, Bennington, for Plaintiff-Appellant.

          Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellee.

          William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Amicus Curiae Office of Attorney General.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          DOOLEY, J.

         ¶ 1. In this interlocutory appeal, the State challenges the trial court's suppression of two sets of statements that defendant made to his probation officer. The trial court determined that suppression was warranted because the probation officer did not provide defendant with the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). The State argues that Miranda warnings were not required because defendant was not in custody at the time he made his incriminatory statements. We agree with the State with respect to the first set of statements and reverse the decision to suppress those statements; we reverse and remand the trial court's decision with respect to the second set of statements for further findings on the issue of custody and a new decision consistent with this opinion.

         ¶ 2. At the time of the alleged offense, defendant was on a community furlough under the supervision of the Vermont Department of Corrections (DOC) following a conviction for a forcible sexual assault on a thirteen-year-old girl. A probation officer supervised defendant on furlough from 2009 until his arrest in April 2014. During that period, the officer and defendant met approximately twice a week. Defendant was on the "highest level of supervision, " such that probation officers were permitted to visit his residence at any time and inspect it for any violations of the special restrictions placed on sex offenders. Prior to this case, the probation officer investigated four alleged probation violations by defendant, including possession of pornography, peering into female neighbors' windows, and staring at nurses at his mother's convalescent center. In response, the probation officer imposed graduated sanctions in three instances and incarceration in one.

         ¶ 3. On April 3, 2014, a resident of defendant's apartment building phoned the probation officer to inform him that police officers were at the complex to investigate reports that defendant had drilled holes in a wall to view his teenaged neighbor in her bedroom in her family's apartment. The probation officer and another community correctional officer with the Bennington office of DOC went to defendant's residence to investigate. The probation officer carried no weapons; the other community correctional officer carried mace and wrist restraints. Upon their arrival, the officers observed a police car in front of the apartment next to defendant's unit. They knocked at defendant's back door. Defendant answered, and the officers told him they needed to enter the apartment to speak with him. Once they entered the apartment, the probation officer instructed defendant to sit down on the living room couch and asked the community correctional officer to go upstairs to see if there was any evidence of drilled holes in a wall. Neither officer placed defendant in restraints.

         ¶ 4. Thereafter, the probation officer began to question defendant, asking if anything was going on or if defendant wanted to report something. The probation officer did not mention the call he had received from defendant's neighbor. Although defendant "initially acted confused" and appeared "visibly nervous, " the probation officer continued to ask if defendant needed to report anything until defendant finally responded "I screwed up; I think I screwed up." At that point, the community correctional officer returned and announced he had found holes in the wall of the upstairs bedroom. The probation officer asked defendant if he had made the holes, and defendant admitted that he had drilled them three days earlier. Defendant also admitted that he had been struggling with fantasies about his teenaged neighbor but denied that he masturbated while viewing her through the hole. The probation officer then went upstairs to view the holes, which had been covered with pictures and stuffed with toilet paper, and confirmed that it was possible to see into the girl's bedroom. After inspecting the holes, the probation officer returned downstairs to inform defendant he would be taken into custody and to place restraints on defendant's wrists. He then went to the apartment of the teenaged neighbor to speak with the police officer present. He informed the police officer of his presence in defendant's apartment and that he had placed defendant in custody. The police officer eventually came into defendant's apartment and took a videotaped confession from him.[1]

         ¶ 5. After defendant spoke to the police officer, the probation officer transported defendant to the DOC office for processing, to be held under a charge that his behaviors constituted a violation of his furlough conditions. Defendant remained in wrist restraints until he arrived at the DOC office, at which point he was transferred into shackles and leg restraints. Defendant completed the necessary paperwork, and the probation officer took him outside to have a cigarette in the parking lot. They then returned to the DOC office, where DOC employees were continually coming in and out of the room in order to check schedules and obtain paperwork. The probation officer "started" a second conversation with defendant about the events that had transpired that day. During their conversation, defendant admitted that he had made the holes three months earlier, that he regularly fantasized about his neighbor, that he had seen her naked on three occasions and in her underwear over twenty times, and that he had masturbated while watching her. The probation officer estimated that approximately twenty to twenty-five minutes elapsed from the arrival at the DOC office to the conclusion of defendant's second set of statements, with their conversation about the offending behaviors occurring about ten minutes after their arrival. Following this statement, the probation officer called the police officer to come to the DOC office to interrogate defendant.

         ¶ 6. Defendant was charged with thirteen counts of voyeurism and one count of stalking. After a mistrial, defendant moved to suppress four sets of statements: two to the probation officer and two to the police officer. Following a December 2014 hearing, the court granted the motion. It found that the statements to the probation officer were inadmissible under State v. Steinhour, 158 Vt. 299, 302, 607 A.2d 888, 890 (1992), which it read to preclude the use of statements made by probationers to probation officers in a new criminal proceeding unless Miranda warnings were given. The court also found the statements and admissions to the police officer inadmissible because the officer's recitation of Miranda warnings was "woefully inadequate, " rendering defendant's resulting waiver invalid.

         ¶ 7. This interlocutory appeal on the two sets of statements made to the probation officer followed. The State argues that the court's conclusion that a probation officer is obligated to give Miranda warnings when an interview might result in new criminal charges is legally wrong. It maintains that Miranda does not apply to either probation officer interview because defendant was not in police or coercive custody.

         ¶ 8. In reviewing a motion to suppress, we uphold the trial court's findings of fact absent clear error; we review the court's legal conclusions de novo. See State v. Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280. In determining whether an individual is in custody for Miranda purposes, the U.S. Supreme Court requires three discrete inquiries: first, an examination of the circumstances surrounding the interrogation, a purely factual inquiry; second, based on the facts found, an inquiry into whether a reasonable person under those circumstances would have felt free to terminate the interview and leave.[2] In recent cases, the Court added a third inquiry: whether the environment presents "the same inherently coercive pressures as the type of station house questioning at issue in Miranda." Howes v. Fields, __U.S.__, __, 132 S.Ct. 1181, 1190 (2012). Whether the facts meet the two latter standards is a question of law, which we review de novo. In re E.W., 2015 VT 7, ¶ 9, 198 Vt. 311, 114 A.3d 112.

         ¶ 9. Before embarking on our analysis, we make one general observation. In our review of case law from other jurisdictions, the only decisions from courts throughout the country that have suppressed statements from defendants because a probation officer failed to give Miranda warnings to a defendant prior to the statement reached these decisions in situations where the defendant was incarcerated[3] or handcuffed[4] at the time of the statement. This is true regardless of whether the defendant was on probation, parole, or furlough, and regardless of the title of the corrections officer who took the statement. It is even true in cases where the statement was taken by a law enforcement officer who acted in concert with the corrections officer. Because the situation in this case is relatively common, there are many decisions that align with our decision here that Miranda warnings were not required. We have listed a representative sample in this footnote.[5]

         ¶ 10. We begin with the first set of statements to the probation officer taken in defendant's home. As the U.S. Supreme Court recently reaffirmed in Howes, custody refers to a specific set of circumstances that are "thought generally to present a serious danger of coercion." __U.S. at__, 132 S.Ct. at 1189. The first step of the inquiry is "to ascertain whether, in light of the objective circumstances of the interrogation, " a reasonable person would have felt "he or she was not at liberty to terminate the interrogation and leave." Id. (quotations and alteration omitted). Relevant factors include "the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints, and the release of the interviewee at the end of the interrogation." Id. (citations omitted); see also E.W., 2015 VT 7, ¶ 15; State v. Sullivan, 2013 VT 71, ¶ 29, 194 Vt. 361, 80 A.3d 67; State v. Muntean, 2010 VT 88, ¶ 19, 189 Vt. 50, 12 A.3d 518. The second step is to determine "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." Howes, __U.S. at__, 132 S.Ct. at 1190.

         ¶ 11. The State argues that the issue before us is controlled by the first step in the inquiry and the answer at that step is controlled by the U.S. Supreme Court decision in Minnesota v. Murphy, 465 U.S. 420 (1984). In Murphy, the defendant was on probation for a sex-related charge, conditions of which included mandatory participation in a treatment program for sexual offenders, periodic reporting to his probation officer, and an obligation to be truthful with the officer "in all matters." Id. at 422. During one of his counseling sessions, defendant admitted to a rape and murder seven years earlier, and the counselor informed his probation officer of this admission. Id. at 423. The officer wrote to defendant and asked him to contact her to discuss a treatment plan for the rest of the probationary period. Id. The officer did not disclose that she intended to confront defendant with his confession at the meeting. When they met in her office, the officer revealed the information she had learned from the counselor. Although the defendant became angry and stated he "felt like calling a lawyer, " he admitted over the course of the conversation to the rape and murder and tried to persuade the officer further treatment was unnecessary. Id. at 424. At the end of the conversation, the officer informed the defendant that she had an obligation to tell the police of the newly disclosed crime. Id.

         ¶ 12. After he was charged with first-degree murder based on his newly disclosed conduct, the defendant sought to suppress his confession on the grounds it was obtained in violation of his rights under the Fifth and Fourteenth Amendments to the U.S. Constitution. Id. at 425. Specifically, the defendant argued that he should have been given Miranda warnings before the probation officer questioned him. The Minnesota Supreme Court accepted that argument on the basis that the coercive powers of the probation officer over the probationer made the interrogation the equivalent of custodial interrogation addressed in Miranda such that equivalent warnings were required in the probation interrogation case before the interrogation could be admitted in a criminal case. State v. Murphy, 324 N.W.2d 340, 344 (Minn. 1982).

         ¶ 13. The U.S. Supreme Court rejected the ruling of the Minnesota Supreme Court, ruling that the general obligation to appear before a probation officer and answer truthfully her questions about incriminating conduct-akin to that imposed on grand jury witnesses-did not automatically convert otherwise voluntary statements into compelled ones for purposes of Miranda. Murphy, 465 U.S. at 431. The defendant was free to assert the privilege against self-incrimination and would have suffered no penalty for choosing to do so. Id. at 429. Indeed, there was no direct evidence that the defendant "confessed because he feared his probation would be revoked if he remained silent" and there was nothing in the Minnesota probation conditions to suggest probation was conditional on waiving Fifth Amendment rights regarding future criminal prosecutions. Id. at 437.

         ¶ 14. The Supreme Court went on to analyze the case under traditional custody factors and concluded that the defendant was not in custody for Miranda purposes since there was no formal arrest and no restraints on his freedom of movement. Id. at 430. The defendant was "not physically restrained" and could have left the probation office, suggesting it would have been unreasonable for him to believe that terminating the meeting would have led to a revocation of probation. Id. at 433. The Court concluded that the psychological pressures stemming from the unfamiliar interrogation environment that Miranda warnings seek to guard against were simply not present, as the defendant had met regularly with his probation officer and was familiar with her and her office. Id.

         ¶ 15. We agree with the State that Murphy answers much of defendant's argument on the special need for Miranda warnings in probation officer interview cases where the State seeks to admit the result of that interview in a separate criminal case. After Murphy, any such case must be analyzed under traditional factors to determine whether a custodial interrogation, as defined in Miranda has occurred. See Kittredge, 2014 ME 90, ¶¶ 7, 18 (finding no custody where defendant asked to come to probation office and was interrogated there by two uniformed, armed state troopers where: troopers told defendant "he was not under arrest"; defendant "did not manifest any belief that he was not free to leave"; the building was familiar to defendant; there were only two officers present; defendant was not physically restrained; and the interrogation lasted about an hour and occurred in "an unlocked room without any additional coercive conditions"); Elliott, 833 N.W.2d at 293 (concluding that interview by parole officer of incarcerated parolee was not custodial when meeting took place in jail library, lasted between fifteen and twenty-five minutes, and defendant was not physically restrained, even though defendant was not told "he was free to leave the meeting and return to his cell").

         ¶ 16. Further, we note that the degree of post-conviction, post-incarceration restraint, and a defendant's knowledge of that restraint, have little if anything to do with whether the defendant is in custody for purposes of Miranda requirements unless defendant was actually under arrest. As the Supreme Court explained, the term "in custody" has different meanings in different contexts and is "more narrowly circumscribed" in the context of Miranda. Murphy, 465 U.S. at 430. For purposes of Miranda, custody is present only if a defendant is under formal arrest or under restraint of movement of the degree associated with formal arrest. Id. at 430-31. It is true, as we held in State v. Bogert, that "the restraints on [a] defendant's individual liberty associated with his conditional-reentry status are significant." 2013 VT 13A, ¶ 24, 197 Vt. 610, 109 A.3d 883. These restraints go to the liberty interests of a furloughed prisoner, as we held in Bogert, but do not create custody under Miranda. Indeed, the point of furlough is that the furloughee is not under arrest.

         ¶ 17. With respect to the assumed knowledge of the defendant, the Murphy Court made a critical distinction:

[W]e must inquire whether [the defendant's] probation condition merely required him to appear and give testimony about matters relevant to his probationary status or whether they went farther and required him to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent. Because we conclude that Minnesota did not attempt to take the extra, impermissible step, we hold that [the defendant's] Fifth Amendment privilege was not self-executing.

465 U.S. at 436.

         ¶ 18. There is similarly no evidence here that the State would penalize an exercise of a defendant's self-incrimination privilege by revoking his furlough status. As in Murphy, there is no direct evidence that defendant confessed "because he feared that his probation would be revoked if he remained silent." Id. at 437.

         ¶ 19. Even this distinction does not end the inquiry. The Murphy Court went on to hold that even if the defendant had "a belief that his probation might be revoked for exercising the Fifth Amendment privilege, that belief would not have been reasonable." Id. at 438. This is because decisions of the U.S. Supreme Court prior to Murphy had made clear that a "State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege." Id. For the same reason, such an expectation would not ...

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