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State v. Sheehan12/29/2000
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
Defendant George Sheehan appeals his conviction for driving while under the influence of intoxicating liquor, 23 V.S.A. § 1201(a)(2). He argues that the district court erred in refusing to suppress all evidence derived from the warrantless nighttime entry into his home by police. We affirm.
At 8:50 p.m. on February 26, 1999, two uniformed Wilmington police officers responded to a dispatch of a motor vehicle accident without injuries on Route 100. At the scene, they observed a purple Pontiac Grand Am at rest on the side of the snow covered road. No operator, passengers, or keys were in the car. Through a motor vehicle inquiry, the police discovered that the car was registered to defendant's wife. A witness observed the car skid off the road and the operator leave the scene. The witness gave police a description of the operator and shared his belief that the operator was intoxicated. Defendant's daughter drove by the scene and reported that her father regularly drove the car, although her mother was the registered owner. The daughter expressed concern for her father's safety.
At approximately 10:00 p.m., the police arrived at defendant's home and through a window observed a man inside matching the description of that given by the witness. The officers knocked at defendant's door, identified themselves, requested defendant to identify himself and asked if they could come inside to talk to him. Defendant identified himself and allowed the officers inside his home responding "sure, come on in." Once inside, the officers asked defendant if he was okay, and he responded that he was. The officers observed defendant's eyes to be watery, and they smelled the odor of intoxicating beverages on his breath. Defendant was unsteady and swaying. The officers inquired about defendant's activities earlier in the evening. Defendant became upset and asked what the police were talking about. One officer told defendant that they had removed his vehicle from a field on Route 100. Again, defendant asked what the police were talking about. One officer asked defendant what type of car he drove.
Defendant started to say "Pontiac" but stopped himself. The officer completed the word and defendant added "grape colored." The officers asked defendant where the car was located, and he responded that it was in the garage. The three walked outside the house to the detached garage, but the vehicle was not there. Defendant then led the officers back into the house. After this second entry, the officers advised defendant of their suspicion that he had been driving while intoxicated. They asked if he had been drinking and when he had arrived home. Defendant responded that he had his last drink at around 6:30 p.m. and that he had been home since 6:30 p.m. The officers asked if they could perform field sobriety tests on defendant. Defendant refused and was taken into custody and processed for DUI. He consulted with counsel before supplying a breath sample of .17.
Defendant moved to suppress all evidence derived from the warrantless entry and arrest in his home contending it violated Chapter I, Article Eleven of the Vermont Constitution because no exigency existed and his consent was obtained by misrepresentation. The court denied the motion concluding that there was no constitutional violation as defendant consented to the police officers' entry and there was no evidence that the consent was not voluntary. Defendant entered a conditional plea of guilty, pursuant to V.R.Cr.P. 11 (a)(2), to DUI in violation of 23 V.S.A. § 1201 (a)(2).
On appeal, defendant raises two issues: (1) does Article Eleven prohibi
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