State v. Ford

Skoglund, J.

¶ 1. Justin Ford appeals from the judgment of conviction rendered following his conditional pleas to possession of marijuana and possession of narcotics. The defendant claims that the trial court improperly denied his motion to suppress certain evidence seized from his house. We agree and, accordingly, reverse the judgment of the trial court and remand.

¶ 2. Sometime in the early morning of March 20, 2008, an individual called 9-1-1, said his name was Stephen Ford, and said he had been in an accident and was trapped in his vehicle on the Hartford-Queehee Road in Hartford in Windsor County. Stephen Ford is the brother of defendant, Justin Ford. Nothing in the record established the time of the 9-1-1 call. Police and the local EMS squad responded and searched the area, but did not find a damaged car or Stephen Ford in the area. Subsequently, at around 5:20 a.m. on March 20, a Vermont state police trooper from the Middlesex barracks was contacted at her home by her dispatcher and directed to perform a welfare check on Stephen Ford at his last known address on Brook Street in Williamstown in Orange County.

*21¶ 3. The trooper arrived at the Brook Street address shortly before 6 a.m. and saw one car in the driveway buried by snow. She concluded that it had not been used for awhile. She saw no fresh tire tracks, nor did she see lights on in the house. The only tracks she saw were footprints leading to a basement door of the house adjacent to the driveway. From prior experience with Stephen Ford in an unrelated matter six months earlier, the trooper believed that he lived in the basement of the house. She approached the door and knocked on it a few times, announcing her presence. Hearing no response, the trooper decided to check the remainder of the house. She knew there was another entrance on the north side of the house, but because there was no path through the snow in that direction and because there was a snowmobile track leading around to the south side of the house, she proceeded along the track to the back of the house.

¶ 4. Upon reaching the back of the house, the trooper saw lights coming from the further of two basement windows. Stepping off the snowmobile trail, she approached the house, knocked on the nearer window and announced, “State Police, please come to the door.” She did not hear anything from inside, so she approached the lighted window. As she bent down to the window, she saw, through a gap between the curtains, several small marijuana plants growing in a glass aquarium under a bright grow-light. The trooper did not see anyone inside the room, so she halted her search and left the premises.

¶ 5. Based on what she had observed, the trooper obtained a search warrant for the house on Brook Street, which she thought was Stephen Ford’s house. At around 3 p.m. that afternoon she and a number of other officers returned and searched the home, seizing a dozen marijuana plants, several oxycodone tablets, and other materials thought to be used in a drug-growing operation. While the search was progressing, the owner of the home — and mother of Justin Ford and Stephen Ford — contacted the trooper to ask why her home was being searched. The trooper informed her of the series of events leading to the search. The caller explained that defendant lived in the home and that Stephen had not lived there for some time. A further search of the home uncovered mail and other personal items addressed to defendant. Defendant was subsequently charged with two misdemeanor counts of possession of marijuana and possession of narcotics.

¶ 6. Before trial, defendant moved to suppress the physical evidence gathered in the afternoon search of his home. Defendant *22contested the search on the premise that the warrant authorizing the search was based on the trooper’s warrantless early-morning entry onto the grounds of his home and her observations through his window, and thus, the evidence was obtained in violation of his constitutionally protected rights. In opposition, the State claimed that the trooper’s entry onto defendant’s property was lawful under the emergency aid exception to the warrant requirement. At the evidentiary hearing, the trooper testified to the facts above. Based on this testimony, the trial court denied defendant’s motion, finding that the search satisfied the requirements of the emergency aid exception as laid out in State v. Mountford, 171 Vt. 487, 769 A.2d 639 (2000). Subsequently, defendant entered into a conditional plea agreement, admitting guilt pending the outcome of this appeal.

¶ 7. On appeal from a denial of a motion to suppress, we review the trial court’s findings of fact deferentially and reverse only if the findings are clearly erroneous. State v. Bryant, 2008 VT 39, ¶ 9, 183 Vt. 355, 950 A.2d 467. Under this standard, “we will uphold the 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.” State v. Rheaume, 2005 VT 106, ¶ 6, 179 Vt. 39, 889 A.2d 711 (quotation omitted). 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 legal issues de novo. Bryant, 2008 VT 39, ¶ 9.

¶ 8. Defendant first challenges the trial court’s factual findings, arguing that the court erred when it found: (1) that the trooper had seen “recent footprints leading to the basement door”; (2) that it was apparent to the trooper that “someone had recently entered the basement door”; and (3) that it was “implied that there had been no information that [Stephen Ford] had been picked up by anybody and transported to a hospital.” In reviewing the trooper’s testimony at the suppression hearing, we can find no evidence to support the finding that the footprints or entry into the residence were recent. The trooper’s testimony referred only to footprints in the snow; she made no statements about how old or new the tracks may have been, when the last snow had fallen, or any other indicia of when the prints were made. The State argues that the court could make a logical inference that the *23tracks were “recent” from the trooper’s testimony; however, we fail to see how such an inference can be drawn from testimony establishing only their existence. As to the second challenged finding, as above, we find nothing in the record to support the court’s finding that “someone had recently entered the basement door.” These findings of the court are not supported by the evidence and are clearly erroneous and cannot be upheld. Defendant’s third challenge is not to a finding so much as to a conclusion: “it’s implied that there had been no information that [Stephen] had been picked up by anybody and transported to a hospital.” This is a reasonable, if immaterial, inference, based on the testimony that Stephen was not located on the HartfordQuechee Road and the state police had dispatched the trooper to his last known address to look for him. Thus, we find no error in this finding.

¶ 9. Defendant’s central argument on appeal is that the trooper’s entry onto his property and the resulting discovery of the illegal items constituted a warrantless search of his home in violation of his rights under the Vermont Constitution.1 Defendant claims that when the trooper walked around his house and peered into the lighted basement window, she invaded the curtilage of his home and effected a search without a warrant. Though defendant recognizes that warrantless searches are permissible under certain circumstances, he contends that this search failed to meet the criteria for the emergency aid exception, and thus, the trial court erred in denying his motion to suppress.

¶ 10. Article 11 of the Vermont Constitution protects the people’s right to be free from “unreasonable government intrusions into legitimate expectations of privacy.” Bryant, 2008 VT 39, ¶ 10 (quotation omitted). The home is “a repository of heightened privacy expectations,” and as such, it receives heightened protection under Article 11. Id. ¶ 12 (quotation omitted). Because some areas outside the physical confines of a house are so intimately *24tied to the “privacies of life,” we recognize the “same constitutional protection from unreasonable searches and seizures” for this so-called curtilage “as [for] the home itself.” State v. Rogers, 161 Vt. 236, 241, 638 A.2d 569, 572 (1993) (citing Oliver v. United States, 466 U.S. 170, 180 (1984)). An individuars interest in privacy is safeguarded from government intrusion by requiring “advance judicial approval” in the form of a warrant. Mountford, 171 Vt. at 489, 769 A.2d at 643 (quotation omitted). This detached review prevents law enforcement from “deciding on their own, without the approval of a neutral judicial officer, to invade a person’s privacy” in the absence of “exceptional circumstances.” Id. (quotation omitted). When government agents conduct a warrantless search, the law presumes such an intrusion into an individual’s privacy is unreasonable and a constitutional violation. Bryant, 2008 VT 39, ¶ 10. Indeed, such invasions are “permissible only pursuant to a few narrowly drawn and well-delineated exceptions.” Bauder, 2007 VT 16, ¶ 14; see Terry v. Ohio, 392 U.S. 1, 25-26 (1968) (warrantless search must be “strictly circumscribed by the exigencies which justify its initiation”).

¶ 11. The emergency aid or emergency assistance exception provides a narrow carve-out from the warrant requirement applicable when law enforcement personnel discover illicit activity while providing emergency aid to protect life or property. See Mountford, 171 Vt. at 489-90, 769 A.2d at 643-44 (setting out contours of emergency aid exception); State v. Connolly, 133 Vt. 565, 571, 350 A.2d 364, 368 (1975) (recognizing “officers responding to an emergency” as exception to warrant requirement); see also Mincey v. Arizona, 437 U.S. 385, 392 (1978) (“We do not question the right of the police to respond to emergency situations.”). While it is distinct from the community caretaking exception, both involve police operating outside their criminal law enforcement and investigation role, and accordingly the warrant requirement is relaxed. Mountford, 171 Vt. at 490 n.*, 769 A.2d at 643 n.*. The “distinguishing feature” of both community caretaking and emergency assistance searches “is that they are generated from a desire to aid victims rather than investigate criminals.” Id. at 491, 769 A.2d at 645. Because this type of search still constitutes an invasion of an individual’s expectation of privacy, however, any resulting search must be strictly circumscribed by the emergency which serves to justify it and should not be used to support a general exploratory search. Thus, the need for a warrant is *25obviated only when police assistance is necessary to aid persons “seriously injured or threatened -with such injury.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

¶ 12. In recognizing the emergency aid exception in Mountford, 171 Vt. at 490-91, 769 A.2d at 644, this Court adopted the three-part analysis developed by the New York Court of Appeals in People v. Mitchell, 347 N.E.2d 607, 609 (N.Y. 1976), abrogated as applied to Federal Constitution by Brigham City, 547 U.S. 398. As with other exceptions to the warrant requirement, “the burden is on the prosecution to show that the search falls into [this exception].” Mountford, 171 Vt. at 493, 769 A.2d at 646 (quotation omitted).

¶ 13. The first prong of the Mountford/Mitchell test is that “[t]he police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.” Id. at 490, 769 A.2d at 644 (quotation omitted). This is an objective inquiry, and the officer’s belief “must be grounded in empirical facts rather than subjective feelings.” Mitchell, 347 N.E.2d at 609-10. Our analysis of this factor, however, is deferential and not an invitation to “evaluate, by hindsight, actions taken by police based on an immediate reaction to the circumstances that faced them.” Mountford, 171 Vt. at 493, 769 A.2d at 646. At the same time, “the burden is on the prosecution” to prove that the police met the exception’s standards. Id. (quotation omitted).

¶ 14. The second prong of the Mountford/Mitchell test is a subjective analysis into the motivations of the officers involved; they “must not be primarily motivated by intent to arrest and seize evidence.” Id. at 490, 769 A.2d at 644 (quotation omitted). Since we decided Mountford, the United States Supreme Court has held that an “officer’s subjective motivation is irrelevant” in determining violations of the Fourth Amendment of the United States Constitution. Brigham City, 547 U.S. at 404. Because our holding in this case does not depend on this second prong of the Mountford/Mitchell test, we refrain from determining the impact the Brigham City ruling has on that facet of our analysis, beyond stating that the other two prongs remain valid.

¶ 15. The third prong of the test limits the permissible scope of any search undertaken as police are giving emergency *26assistance. Mountford, 171 Vt. at 490, 769 A.2d at 644. Any search must have “some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.” Id. (quotation omitted). In articulating this factor, the Mitchell court noted that this “limited privilege afforded to law enforcement” requires a “direct relationship between the area to be searched and the emergency.” 347 N.E.2d at 610. Like the Mitchell court, we recognize that “reasonableness of police activity must always pass judicial muster” and any search under the guise of the emergency assistance exception must do likewise. Id. at 611.

¶ 16. The search of defendant’s home fails under the first and third prongs set out in Mountford. Under the first prong of the test, there was no showing of an immediate need for police assistance at defendant’s home based on the facts before the trial court. The genesis of the emergency here was a 9-1-1 call reportedly made by Stephen Ford. Though the record is not clear as to the specifics of the police and emergency personnel response, at the hearing the trooper stated that police and emergency personnel had responded to the Hartford-Quechee Road, but were unable to find the motorist or evidence of any accident. The time of the 9-1-1 call was never established. Nor was it ever established that the caller had claimed any physical injuries.

¶ 17. Furthermore there was no evidence presented as to why the state police in the Hartford area thought the motorist might be in Williamstown. Apparently, a check of the law enforcement database indicated a prior address for Stephen Ford in Williamstown. We take judicial notice that Williamstown is at least forty miles away from the part of the Hartford-Quechee Road closest to Williamstown. With this limited information, the trooper was dispatched to defendant’s home to see if Stephen Ford had returned to this residence and needed aid. After arriving at the home, the trooper testified to nothing that would justify a “reasonable belief’ that the motorist was inside and in need of immediate assistance. She approached a darkened house with a snowed-in car in the driveway and no sign of inhabitants beyond footprints more recent than the last snowfall. She knocked on the most accessible door multiple times and received no response. Absent any evidence upon which to surmise that Stephen Ford had arrived at defendant’s residence, injured or otherwise, between the time of the call and the dispatch of the trooper, it is *27difficult to see how the State upheld its obligation to meet the first prong of Mountford. The lack of a response to her knocking, without more, was insufficient to support a belief that anyone was inside the house or that there was an immediate need for medical attention. See Mountford, 171 Vt. at 493, 769 A.2d at 646 (“[W]e do not believe that either the knowledge that defendant was drunk or the failure of defendant to open the door is sufficient to authorize emergency intervention.” (citations omitted)). Without additional evidence at the scene — or before the trial court — there can be no reasonable conclusion that there was an emergency requiring immediate police assistance in defendant’s house based solely on the 9-1-1 call.2

¶ 18. Mountford, itself, is instructive in this regard. There, we recognized that police entry into a home was justified when, responding to reports of a loud party, police saw the defendant in his home, alone, and in an extremely intoxicated state. He did not respond to their knocks or yells or even the beam of a flashlight shined in his eyes. As they watched from outside, he arose and walked into a wall, before stumbling into an adjoining room. Such circumstances, we concluded, would lead a reasonable officer to be concerned for the defendant’s well being. Id. at 493, 769 A.2d at 646.

¶ 19. In contrast, here, an officer approaching defendant’s home, armed only with the knowledge that a motorist had claimed to be trapped in his car miles away, would need more than footprints and a darkened home to reasonably believe emergency assistance was immediately necessary. Unlike other emergency assistance cases wherein courts have upheld police searches of homes connected to reported automobile accidents, here there was insufficient evidence to suggest that an emergency existed inside the home. Cases from sister jurisdictions uniformly involve additional evidence beyond an accident report to justify an officer’s entry into a home following a report of a car accident. See, e.g., City of *28Troy v. Ohlinger, 475 N.W.2d 54 (Mich. 1991) (officer responded to report of injury accident, cross-referenced license plate number with residence, and saw damaged car outside home); City of Fargo v. Ternes, 522 N.W.2d 176 (N.D. 1994) (responding to hit-and-run injury accident, officers went to residence and saw damaged pickup parked outside with blood on truck seat and on door of residence).

¶ 20. The third prong of Mountford was likewise unfulfilled, as the scope of any search justified by the situation that occurred in Hartford as a result of the 9-1-1 call could not extend to the house in Williamstown forty miles away without “some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.” 171 Vt. at 490, 769 A.2d at 644 (quotation omitted). By searching the grounds of the home and peering into the basement windows when there was insubstantial evidence at the residence that anyone — let alone the potentially injured motorist — was home, the trooper exceeded the scope of any emergency which arose from a reported car accident, especially given the scant evidence connecting defendant’s home with the 9-1-1 call. With the nature of the emergency very vague and no basis to associate defendant’s empty house with that emergency the scope of a permissible search had likewise contracted. Contrary to the State’s position that the scope of the search necessarily expanded when police were unable to find the motorist on the Hartford-Quechee Road, with no evidence that the accident had actually happened or that anyone was actually injured, the search could not be enlarged without limit and without reason. Under the circumstances of this case, the State failed to prove that there was a connection between the home and a purported accident scene many miles away.

¶ 21. As the New Hampshire Supreme Court recognized recently in reviewing its emergency aid jurisprudence, in most of the cases “there were alarming or volatile situations warranting [police] entry into the private residences. Even where there is a possible victim within a private dwelling but no volatile situation, we have not found the existence of exigent circumstances . . . .” State v. Pseudae, 908 A.2d 809, 813 (N.H. 2006). Such is the case before us today. The State has failed to uphold its burden of demonstrating that the trooper had a reasonable belief that her entry into the home was immediately necessary to protect life and limb. The possibility that the motorist was in defendant’s home *29and needed aid was a remote possibility, and that alone did not make the police entry into defendant’s curtilage and the search of his home reasonable.

Reversed and remanded.

As defendant’s argument is grounded solely in the Vermont Constitution, specifically Article 11, we base our decision upon that foundation, pausing only to note that “we have . . . long held that our traditional Vermont values of privacy and individual freedom — embodied in Article 11 — may require greater protection than that afforded by the federal Constitution.” State v. Bauder, 2007 VT 16, ¶ 10, 181 Vt. 392, 924 A.2d 38. Thus, all references to federal cases are by way of illustration only.

It is important to note that this conclusion does not prevent any future welfare checks based on emergency calls. As defendant rightly conceded, the trooper’s presence in his driveway and dooryard, and her knock upon his door, did not constitute an unlawful search. See State v. Ryea, 153 Vt. 451, 453, 571 A.2d 674, 675 (1990) (driveway, though part of curtilage, “constitutes a semiprivate area” not afforded full constitutional protection). Had she discovered evidence supporting a reasonable belief that there was an immediate need for emergency assistance in those areas, she could have continued her search.