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State v. Sprague2/21/2003
chez-Jaramillo, 637 F.2d at 1099 (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)).
FN2. Although the trial court ruled that the consents to the search of defendant's person, car and home were voluntary, it did not consider the issue in the context of the immediately preceding illegal seizure resulting from the car exit.
32. The record here shows that defendant emptied his pockets solely in response to the officer's "request," which was based on the officer's stated concern that defendant not enter the police cruiser **550 with any weapons. As with the immediately preceding "request" that defendant exit his vehicle, we discern no evidence that defendant's compliance was anything other than a submission to the officer's authority. Furthermore, there were no intervening events to attenuate the taint of the initial illegality. See United States v. Jerez, 108 F.3d 684, 695 (7th Cir.1997) (illegal seizure "vitiated the appellants' subsequent consent" to search where consent "followed almost immediately after the illegal seizure" with "no intervening event of any significance"); Sanchez-Jaramillo, 637 F.2d at 1100 (defendant's acquiescence to officer's request that he open suitcase in the midst of illegal detention was not voluntary). The officer's "request" was made in the immediate aftermath--indeed virtually within seconds--of the illegal seizure, and was a direct exploitation of that illegality, as the sole basis for the request was to facilitate moving defendant from *136 outside of his vehicle--where he had been illegally removed--to inside the officer's cruiser. See Royer, 460 U.S. at 507-08, 103 S.Ct. 1319 (exploitation of illegal detention was determinative factor in vitiating defendant's consent to search luggage). Hence we cannot conclude the State has carried its heavy burden of proving that the evidence obtained from defendant's pocket was " 'sufficiently an act of free will to purge the primary taint.' " Brown, 422 U.S. at 602, 95 S.Ct. 2254 (quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).
33. The same must also be said of defendant's submission to the officer's subsequent requests to search his vehicle and home. As the police videotape graphically reveals, the officer utilized the small amount of marijuana illegally seized from defendant's pocket to leverage defendant's additional consent to search for more contraband in these additional locations. The coercive atmosphere and unequal tenor of these exchanges was plainly established by the initial detention and continuing seizure. As Justice Souter, speaking in a slightly different context, aptly observed: "The scene was set and an atmosphere of obligatory participation was established by this introduction. Later requests to search prefaced with 'Do you mind ...' would naturally have been understood in the terms with which the encounter began." United States v. Drayton, 536 U.S. 194, 211, 122 S.Ct. 2105, 2116, 153 L.Ed.2d 242 (2002) (Souter, J., dissenting).
34. This is fundamentally a case about preserving personal freedom. The erosion of liberty is a slow, subtle process, and we are long gone down the road before a memory of what we used to have causes us to look back and notice our loss. Vermonters should be assured that when they are stopped for speeding the consequence is a ticket and a fine, not a license for law enforcement to exploit a temporary advantage. We hold that the trial court erred in denying defendant's motion to suppress, and therefore that the judgment must be reversed. Our decision renders it unnecessary to address defendant's other claims. [FN3]
FN3. We note that defendant did not argue below, or on appeal, that statutory authorization was necessa
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