Appeal from Superior Court, Franklin Unit, Criminal Division
March Term, 2017
A. Mello, J. Heather J. Brochu, Franklin County Deputy
State's Attorney, St. Albans, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Marshall Pahl,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. Defendant Christian Allis entered a conditional plea to a
first offense for driving under the influence (DUI) in
violation of 23 V.S.A. § 1201(a)(2), reserving the right
to appeal the trial court's denial of his motion to
suppress evidence obtained during law enforcement entry into
his home. Defendant argues on appeal that the trial
court's decision denying his suppression motion was in
error because: (1) the police entered his home without
consent; and (2) even if there was consent, the State failed
to prove that the consent was voluntarily given. We hold that
the State failed to meet its burden to prove consent to enter
and, accordingly, reverse.
2. 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
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. 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).
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
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 ...