State v. Boyer

308 A.3d 408

2023 VT 40

STATE of Vermont

v.Joshua BOYER

No. 21-AP-275

Supreme Court of Vermont.

November Term, 2022

7-21-2023

On Appeal from Superior Court, Bennington Unit, Criminal Division, Cortland Corsones, J.

Evan Meenan, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, Dawn Seibert, Appellate Defender, and Jackson Samples, Appellate Clerk (On the Brief), Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll and Waples, JJ., and Burgess, J. (Ret.), Specially Assigned

WAPLES, J.

¶ 1. Defendant Joshua Boyer challenges the denial of his motion to suppress evidence gathered in a consented-to search of his residence. He argues that his fourteen-year-old daughter M.B. lacked authority to consent to the search. Defendant also asserts that his constitutional speedy-trial rights were violated. Because we conclude that the search was lawful and that defendant’s speedy-trial rights were not violated, we affirm the trial court’s decision.

I. Facts and Procedural History

¶ 2. The trial court made the following findings in ruling on defendant’s motion to suppress. In April 2018, M.B. complained to police that defendant had sexually assaulted her multiple times, including the previous day. M.B. resided in the house where the alleged assaults occurred with defendant, his wife, and other children. Defendant was arrested and released on conditions, including that he should not return to the family home where M.B. was then residing.

¶ 3. Several days later, a police detective and an investigator from the Department for Children and Families (DCF) met with M.B. at a friend’s home where she was temporarily staying and asked if there might be DNA evidence present in M.B.’s family home. M.B. said that defendant might have disposed of a condom in her bedroom wastebasket and used a pair of her underwear to wipe himself off after the assault. Knowing that defendant and his wife would likely be away from their home to attend defendant’s arraignment, the detective asked M.B. if she would be comfortable returning to the house to locate this potential evidence.

¶ 4. M.B., the detective, and the DCF investigator then went to the home. They entered through the rear basement door, and M.B. led them to her bedroom, where she noticed her laundry had been cleaned and her wastebasket emptied. M.B. went outside and opened a trashcan by the exterior of the house, which she noted "had been gone through." The detective seized the trashcan. The police later searched the trashcan pursuant to a warrant, which revealed a condom wrapper, stained paper towels, pharmacy receipts, and a rug. M.B. identified the rug as from her bedroom, and a subsequent forensic analysis confirmed the presence of defendant’s semen on the rug. Defendant moved to suppress all evidence retrieved from the trashcan as obtained in violation of his constitutional rights under both Article 11 of the Vermont Constitution and the Fourth Amendment to the U.S. Constitution, prohibiting unreasonable searches and seizures.

¶ 5. The trial court denied defendant’s motion to suppress. It found that the search had been consented to, and therefore the search fell within an exception to the warrant requirement. It determined that a minor third-party can consent to a warrantless search of their parent’s house if the minor has common authority over the home, which the court deemed to be the case here with M.B. The trial court stressed that although "common authority" is not a property interest, it can be inferred from an apparent authority of possession.

¶ 6. The trial court found that M.B. lived fulltime on the premises and had joint access to the house, providing the reasonable inference that she had the right to permit the inspection "in [her] own right." The court also found widely shared social expectations established that parents, such as defendant, assumed the risk that minors of a certain age would allow strangers to enter the common areas of the house. Finally, it found that although police conducted the search while defendant and his wife were away, they did not remove defendant from the home in order to avoid his objections to the search. In light of the considerations outlined above and based on the totality of the circumstances, the trial court determined that no constitutional violation had taken place and denied the motion to suppress the evidence obtained from the trashcan.

¶ 7. In August of 2020, defendant filed a motion to dismiss for lack of speedy trial and denial of due process. The trial court denied the motion after applying all the factors from Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as described in more detail below.^* A jury convicted defendant of sexual assault of a child at his second trial in August 2021. This appeal follows.

II. Search and Seizure

[1] ¶ 8. We first address defendant’s motion to suppress. "The denial of a motion to suppress involves a mixed question of fact and law. We accept the trial court’s findings of fact unless they are clearly erroneous, but we review the question of whether the facts meet the proper legal standard without deference to the trial court." State v. Calabrese, 2021 VT 76A, ¶ 19, 216 Vt. 84, 268 A.3d 565.

[2–6] ¶ 9. Article 11 of the Vermont Constitution, like the Fourth Amendment to the U.S. Constitution, seeks to "protect our freedom from unreasonable government intrusions into … legitimate expectations of privacy." State v. Bauder, 2007 VT 16, ¶ 10, 181 Vt. 392, 924 A.2d 38 (quotation omitted). However, our analysis is independent of "[t]he [U.S.] Supreme Court’s ebbs and flows in this area of criminal constitutional procedure," and we have often noted that Article 11 "may afford greater protection of individual rights" than its federal counterpart. State v. Savva, 159 Vt. 75, 84, 616 A.2d 774, 779 (1991); see State v. Zaccaro, 154 Vt. 83, 87, 574 A.2d 1256, 1259 (1990) (noting that "we may look for guidance to persuasive holdings from federal and sister-state jurisdictions" in carrying out Article 11 analysis). Searches outside the judicial process are presumptively unconstitutional, aside from "a few narrowly drawn and well-delineated exceptions." Bauder, 2007 VT 16, ¶ 14, 181 Vt. 392, 924 A.2d 38. In considering defendant’s arguments, we recognize that "[t]he home is a repository of heightened privacy expectations, and as such, it receives heightened protection under Article 11." State v. Ford, 2010 VT 39, ¶ 10, 188 Vt. 17, 998 A.2d 684 (quotation omitted). "Evi- dence obtained in violation of the Vermont Constitution, or as a result of a violation, cannot be admitted at trial as a matter of state law." State v. Badger, 141 Vt. 430, 452-53, 450 A.2d 336, 349 (1982).

[7, 8] ¶ 10. Consent to search is a well-established exception that vitiates the need for either probable cause or a search warrant when given by someone voluntarily and with the authority to consent. State v. Williams, 2020 VT 91, ¶ 8, 213 Vt. 334, 246 A.3d 960. This includes third parties, who may provide valid consent so long as the consenting party could have permitted the search in their own right and the defendant has assumed the risk that a third party might allow a search. State v. Chenette, 151 Vt. 237, 250, 560 A.2d 365, 374 (1989) (applying third-party consent doctrine where State retrieved defendant’s documents by consent of third-party managing them); see also United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ("[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared."). Here, defendant primarily challenges the constitutional adequacy of M.B.’s consent to search the house, arguing that she did not have the requisite authority to do so.

[9, 10] ¶ 11. Defendant first argues that M.B. did not have common authority over the home to consent to a warrantless search. A person has common authority where there is a " ‘mutual use of the property by persons generally having joint access or control for most purposes.’ " Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (quoting Matlock, 415 U.S. at 171 n.7, 94 S.Ct. 988). Defendant argues that because children typically have less authority in the home, there should be a presumption against their ability to inrite guests in, even where the party seeking entry is a police officer. Defendant cites a concurring opinion in United States v. Sanchez in support of his position. 608 F.3d 685, 698 (10th Cir. 2010) (Lucero, J., concurring).

[11] ¶ 12. We decline to adopt such a presumption for the following reasons. First, searches undertaken outside of the normal judicial process are already presumptively unconstitutional, Bauder, 2007 VT 16, ¶ 14, 181 Vt. 392, 924 A.2d 38, "and consequently the State has the burden of proving that such a search does not violate Article 11." State v. Kirchoff, 156 Vt. 1, 13, 587 A.2d 988, 996 (1991); see also Savva, 159 Vt. at 80, 616 A.2d at 776 ("[T]he state bears the burden of showing that circumstances require that they forego the warrant process."). An additional presumption of the kind advocated by defendant would be redundant and provide little supplementary protection to defendants under the third-party doctrine. Furthermore, the to-tality-of-the-circumstances test employed by the trial court properly considered a variety of factors relating specifically to a minor’s ability to consent to a search, including their age, residence, scope of consent, and authority to permit inspection. In fact, this multi-factor analysis comports with the spirit of Judge Lucero’s concurrence, which recognizes that "the central assumption of Matlock," that a joint occupant’s consent is valid against a co-occupant, "falters when applied to children." Sanchez, 608 F.3d at 697 (Lucero, J., concurring). Matlock’s evaluation of the...