State v. Weisler, State v. King

2011 VT 96, 35 A.3d 970, 190 Vt. 344, 2011 Vt. LEXIS 106

• Court: Supreme Court of Vermont
• Decided: September 16, 2011
• Docket: 2010-040
• Status: Published

Opinions

Burgess, J.

¶ 1. Defendants in these consolidated appeals contend the trial court erred in denying a motion to suppress evidence seized from a vehicle in which they were passengers. The trial court found that the vehicle’s owner voluntarily consented to the search. Defendants contend: (1) the finding of voluntariness must be reviewed de novo on appeal; (2) the consent to search was not voluntary; and (3) the consent was tainted by the owner’s unlawful de facto arrest. We agree that the finding of voluntariness is subject to de novo review, but conclude that the consent was neither involuntary nor tainted, and therefore affirm.

¶ 2. The facts may be summarized as follows. On the evening of September 15, 2009, a Vermont state trooper monitoring traffic on Interstate 91 observed a vehicle traveling northbound without its rear license plate illuminated. The officer stopped the vehicle and approached it on foot from the passenger side. The vehicle was occupied by three men, later identified as Timothy Stone, the driver and owner; defendant Michael Weisler, the front passenger; and defendant Raymond King, the rear passenger. The officer asked for Stone’s license and registration, and inquired as to his travel plans. In the process, the officer observed what he believed to be “marijuana flakes” on Weisler’s shirt. The officer asked Stone to exit the vehicle, frisked him, and ordered him to be seated in his cruiser while he ran Stone’s license and registration, which revealed a prior drug arrest. The officer spoke with Stone for a few minutes, asking him about the drug arrest and how much marijuana he had in the car. Stone said there was none. The officer then left to speak with the remaining passengers while Stone remained seated in the cruiser.¹

¶ 3. The officer asked for Weisler’s identification, and was told that it was behind the seat. The officer thereupon asked Weisler to exit the vehicle. As Weisler reached under the seat, the officer observed on the floor a box of cellophane wrap and a clear baggie of white powder consistent in the officer’s opinion with cocaine. Based on this observation and concern for his own safety, the officer ordered the men out of the vehicle, drew his handgun, and loudly shouted commands at both Weisler and King to get down on the ground and not to move. Both men were handcuffed and searched. The officer agreed that Stone had an opportunity to observe these events from where he was seated in the cruiser, and the police videotape clearly captures both the audio of the encounter and a subsequent visual of the men in handcuffs being searched.

¶ 4. The officer subsequently returned to the cruiser, informed Stone that there was “a big bag of cocaine” in his car, assured him that none of the men were under arrest, and told him that he would like to search the car “with your consent.”² A conversation ensued in which the officer twice repeated that Stone did not have to allow the search and read a form reiterating Stone’s right to withhold consent. The officer also stated that he would “attempts to obtain a search warrant from a judge” if Stone did not allow the search. Stone acknowledged that he understood, gave the officer consent to search, and signed the consent form. The police then searched the vehicle, seizing a bag of white powder (which later tested positive for cocaine) along with straws and razor blades from the glove compartment.

¶ 5. All three men were charged with possession of cocaine. They filed a joint motion to suppress, asserting that Stone’s exit order was unwarranted by any reasonable suspicion of wrongdoing, and that his subsequent consent to search was effectively coerced by the show of force against King and Weisler. Following a hearing in which only the investigating officer testified, the court issued a written ruling denying the motion. The court found that the exit order was supported by a reasonable suspicion of drug-related activity, and that Stone’s consent to search was uncoerced and voluntary. Weisler and King entered conditional pleas of guilty and filed separate appeals, which we consolidated for review. Stone’s case remains pending.

I.

¶ 6. Defendants renew their claim that Stone’s consent to the warrantless search of his vehicle was involuntary, and that all of the evidence seized therefrom must be excluded.³ See State v. Lussier, 171 Vt. 19, 30, 757 A.2d 1017, 1025 (2000) (evidence obtained in violation of constitutional rights may not be admitted at trial); State v. Badger, 141 Vt. 430, 443, 450 A.2d 336, 344 (1982) (seizure of evidence pursuant to involuntary consent violates Fourth Amendment). Before turning to the merits of the claim, however, we address a threshold dispute between the parties as to the appropriate standard of review. Defendants maintain that the voluntariness of a consent to search is a question of “constitutional fact” or a “mixed question of law and fact” subject to independent or de novo review on appeal. In contrast, the State asserts that it is a question of fact and therefore subject to review solely for clear error, i.e., the court’s finding must be upheld unless “there is no reasonable or credible evidence to support” it. State v. Nault, 2006 VT 42, ¶7, 180 Vt. 567, 908 A.2d 408 (mem.) (quotation omitted).

¶ 7. In considering this issue, we do not write on a blank slate. The same question arose in connection with consent to search in State v. Sprague, 2003 VT 20, ¶ 24, 175 Vt. 123, 824 A.2d 539, where we acknowledged a tendency to “routinely” invoke the “de novo” formula in reviewing motions to suppress while applying a “more deferential” standard to the court’s actual decision, but did not resolve the issue on the record presented. In at least two decisions since Sprague, however, we have definitively endorsed the “two-step” approach discussed in Sprague, wherein the trial court’s underlying findings of “historical fact” are reviewed for clear error, while the ultimate “legal” conclusion or “constitutional fact” as to whether the historical facts establish voluntariness is reviewed de novo. Id. ¶ 24; see State v. Sole, 2009 VT 24, ¶ 23, 185 Vt. 504, 974 A.2d 587 (“As with any appeal of a grant or denial of a motion to suppress, we review the district court’s factual findings for clear error and its legal conclusion de novo.”); State v. Stevens, 2004 VT 23, ¶ 10, 176 Vt. 613, 848 A.2d 330 (mem.) (“[W]e will apply a clearly erroneous standard to the trial court’s underlying historical facts, while reviewing the ultimate legal conclusion . . . de novo.” (quotation omitted)).

¶ 8. While thus seemingly settled, the standard-of-review issue nevertheless conceals layers of complexity largely unexamined in our earlier decisions. Indeed, our approach to date has been somewhat more reflexive than reflective, relying on the characterization of questions as “factual” or “legal” or a “mixed question” of law and fact without significant attention to the reasons for deferential or independent review in a particular context. Lack of clarity on the topic is not unique to this jurisdiction. The U.S. Supreme Court has itself acknowledged that “the appropriate methodology for distinguishing questions of fact from questions of law has been, to say the least, elusive,” and that it has “not charted an entirely clear course in this area.” Miller v. Fenton, 474 U.S. 104, 113 (1985); see also Thompson v. Keohane, 516 U.S. 99, 110-11 (1995) (observing that “the proper characterization of a question as one of fact or law is sometimes slippery”); see generally H. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 267 (1985) (noting the “erratic and uncertain” state of the law governing standard of review and the fact/law distinction).

¶ 9. As we recognized in Sprague, 2003 VT 20, ¶ 24, most federal courts have applied a clearly erroneous standard to the voluntary-consent issue, although the decisions are not monolithic. Compare, e.g., United States v. Silva-Arzeta, 602 F.3d 1208, 1213 (10th Cir. 2010) (‘Whether voluntary consent was given is a question of fact, determined by the totality of the circumstances and reviewed for clear error.” (quotation omitted)), and United States v. Tompkins, 130 F.3d 117, 120 (5th Cir. 1997) (reaffirming rule that “the voluntariness of a detainee’s consent to a warrant-less search is a finding of fact to be reviewed for clear error”), with United States v. Wade, 400 F.3d 1019, 1021 (7th Cir. 2005) (stating that “[questions of law — that is, the legal conclusion of whether [the defendant’s] consent [to search] was voluntary and whether he was illegally seized — are reviewed de novo.”), and Michael C. v. Gresbach, 479 F. Supp. 2d 914, 920 (E.D. Wis. 2007) (“Because voluntariness is determined based on a reasonable person standard, it is treated as a question of law.”).

¶ 10. At the same time, many state courts have adopted the two-step approach set forth in Sprague, deferring to the trial court’s underlying findings of historical fact while independently deciding as a matter of law whether they ultimately demonstrate that the defendant’s consent was voluntary and not the product of police duress or coercion. See, e.g., Woods v. State, 890 So. 2d 559, 561 (Fla. Dist. Ct. App. 2005) (holding that consent to search is a “[mjixed question[] of law and fact . . . reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact” while “its determination of whether a defendant’s conduct was objectively voluntary, is de novo”); State v. Nadeau, 2010 ME 71, ¶ 18, 1 A.3d 445 (“A court’s factual findings addressing the existence of consent are reviewed for clear error. The ultimate question of whether the facts, as found, establish that an individual consented to the ensuing search and seizure is a distinctly legal question that we will review de novo.” (citation omitted)); State v. Wilson, 367 A.2d 1223, 1231 (Md. 1977) (“On appeal, we examine the entire record and make an independent determination of the ultimate issue of voluntariness.”); State v. Bea, 864 P.2d 854, 860 (Or. 1993) (“In reviewing the voluntariness of a defendant’s consent to search, this court will not disturb the trial court’s findings of historical fact if evidence supports them; this court is not, however, bound by the trial court’s ultimate holding as to voluntariness, but assesses anew whether the facts suffice to meet constitutional standards.” (quotation omitted)); State v. Shelton, 990 A.2d 191, 199 (R.I. 2010) (reaffirming rule that reviewing court “defer[s] to the factual findings of the trial justice, applying a clearly erroneous standard” but “the determination of the voluntariness of an individual’s consent to search is reviewed by this Court de novo” (quotation and citation omitted)); State v. Thurman, 846 P.2d 1256, 1271 (Utah 1993) (holding that while trial court’s “underlying factual findings will not be set aside unless . . . clearly erroneous,” appellate court “view[s] the ultimate conclusion that consent [to search] was voluntary or involuntary as a question of law, reviewable for correctness”); State v. Phillips, 577 N.W.2d 794, 800 (Wis. 1998) (holding that, in reviewing whether a defendant voluntarily consented to a search, “[w]e are permitted to independently determine from the facts as found by the trial court whether any time-honored constitutional principles were offended” (quotation omitted)).

¶ 11. As so often with the law, tracing the source of a rule can yield unexpected insights. One leading criminal-law commentator notes that the clearly erroneous standard is most often “attributed to the Supreme Court’s assertion in Schneckloth v. Bustamante, [412 U.S. 218, 227 (1973),] that ‘the question whether a consent to search was in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.’ ” 6 W. LaFave, Search and Seizure § 11.7(c), at 449 (4th ed. 2004). Schneckloth, however, said nothing specifically about the appropriate standard of appellate review. See United States v. Navarro, 90 F.3d 1245, 1256 n.6 (7th Cir. 1996) (noting that “[a]lthough Schneckloth terms the issue of consent an issue of fact to be determined from all the circumstances, it does not speak directly to the standard of appellate review.”). The statement in Schneckloth was made in the course of exploring the question of “what must the prosecution prove to demonstrate that a consent [to search] was ‘voluntarily’ given,” 412 U.S. at 223, and the bulk of the Court’s discussion was given to reviewing and adopting the test governing the voluntariness of confessions, where the Court had long held that judges should assess “the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” Id. at 226; see generally Comment, Voluntariness of Consent to Search, 87 Harv. L. Rev. 213, 215 (1973) (observing that the Court’s analysis in Schneckloth led it “to conclude that the voluntariness of a confession is a question of fact which has always involved a consideration of all the surrounding circumstances”).

¶ 12. Context here is critical, because the standard of review governing the voluntariness of confessions — at the time of Schneckloth and since — is generally de novo. See Miller, 474 U.S. at 115 (declining “to abandon the Court’s longstanding position” that the ultimate question of voluntariness of a confession “is a legal question meriting independent consideration”); Davis v. North Carolina, 384 U.S. 737, 741-42 (1966) (“It is our duty in this case, however, as in all of our prior cases dealing with the question whether a confession was involuntarily given, to examine the entire record and make an independent determination of the ultimate issue of voluntariness.”); Tompkins, 130 F.3d at 120 n.10 (noting that the “ultimate issue” concerning the voluntariness of confessions “is uniformly held to be subject to de novo review”). Clearly, the high court perceived no inconsistency in deeming the voluntariness of a confession to be a highly contextual, fact-specific inquiry in the first instance subject, nevertheless, to independent review on appeal. Simply labeling consent to search as a question of fact to be determined from the totality of the circumstances, therefore, does little to advance the standard-of-review analysis. See Thompson, 516 U.S. at 112 n.11 (observing that, contrary to the respondents’ suggestion, “[t]he ‘totality of the circumstances’ cast of the ‘in custody’ determination . . . does not mean deferential review is in order.”).⁴

¶ 13. More recent Supreme Court decisions, starting with Miller v. Fenton, offer additional guidance. There, the high court specifically rejected the government’s claim that the “case-specific” nature of the “voluntariness” inquiry undermined any basis for independent review of confessions in habeas proceedings. 474 U.S. at 113.⁵ In so holding, the Court readily acknowledged that the voluntariness question did not lose its “factual character” merely because it involved “an inquiry into state of mind” or “because its resolution is dispositive of the ultimate constitutional question.” Id. Eschewing reliance on labels, the Court candidly explained that, “[a]t least in those instances in which . . . the issue falls somewhere between a pristine legal standard and a simple historical fact,” deciding the appropriate standard of review pivots on the basic “determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.” Id. at 114.

¶ 14. The Court proceeded to explain that determining whether, in a given case, a suspect’s consent was given voluntarily and in compliance with due process implicates a “complex of values . . . [that] militates against treating the question as one of simple historical fact.” Id. at 116 (quotation and citation omitted). Moreover, as the high court later explained in Bose Corp. v. Consumers Union of United States, Inc., “the rule of independent review assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge.” 466 U.S. 485, 501 (1984). Thus, regardless of whether the trial court alone determines the voluntariness of a confession or, as in Vermont, the trial court makes the initial determination and subsequently submits the issue to the. jury to decide “whether to rely on the confession,” State v. Caron, 155 Vt. 492, 503, 586 A.2d 1127, 1133 (1990), the Supreme Court views the ultimate question of voluntariness to be a matter for independent review on appeal. See Muehler v. Mena, 544 U.S. 93, 98 n.1 (2005) (reaffirming rule that, in determining whether a Fourth Amendment violation occurred, “as we made clear in Ornelas v. United States, 517 U. S. 690 . . . (1996), we do not defer to the jury’s legal conclusion”); Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001) (holding that constitutionality of jury’s punitive damage award is subject to de novo review).

¶ 15. The Supreme Court subsequently refined its functional approach to standard-of-review issues in a pair of seminal criminal-procedure rulings, Thompson v. Keohane and Ornelas. In Thompson, the Court held that the question of whether a suspect is “in custody” and therefore entitled to Miranda warnings was “a mixed question of law and fact qualifying for independent review.” 516 U.S. at 102. In Ornelas, the question was whether findings of reasonable suspicion to stop and probable cause to conduct a warrantless search “should be reviewed ‘deferentially,’ and for ‘clear error.’ ” 517 U.S. at 691. The Court ruled that they should be reviewed de novo. Id.

¶ 16. Instructively, the Court applied similar factors and reasoning in reaching its conclusion in both cases. First, the Court noted that “objective” factors inform both decisions. In resolving the in-custody issue, the question is “what were the circumstances surrounding the interrogation” and “would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson, 516 U.S. at 112. In Ornelas, the Court observed that once the historical facts are established, the decision turns on “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.” 517 U.S. at 696. Thus, assessments of demeanor and credibility — the traditional province of the trial judge — while relevant to establishing the underlying facts were not central to the crucial evaluation as to whether those facts meet the objective test of reasonableness in either case. Id. at 696-97; Thompson, 516 U.S. at 113-15.

¶ 17. In addition, the Court found that independent review by appellate courts provides useful precedents to “guide future decisions” as well as to “guide police, unify precedent, and stabilize the law.” Thompson, 516 U.S. at 114-15. Indeed, the very fact-specific nature of the inquiry, the Court observed in Ornelas, underscores the importance of independent review. “[T]he legal rules for probable cause and reasonable suspicion acquire content only through application,” the Court explained; thus, de novo review offers the greater opportunity to “unify precedent” and provide law enforcement officers with guidelines “to reach a correct determination beforehand.” Ornelas, 517 U.S. at 697 (quotation omitted). These considerations, together with the Court’s fundamental reluctance to cede Fourth Amendment jurisprudence to the rulings of “different trial judges drawing] general conclusions that the facts are sufficient or insufficient” to meet the reasonableness standard, led it to reject the policy of “sweeping deference” advocated by the government. Id. (quotation omitted).

¶ 18. Any number of courts have since looked to the principles articulated in Miller, Thompson, and Ornelas to determine the appropriate standard of review of other issues, including the voluntariness of a consent to search. Many have concluded that these principles militate in favor of independent review. State v. Thurman, 846 P.2d 1256 (Utah 1993), is illustrative. There, the Utah Supreme Court reasoned that the “two-step” approach to consent to search most closely approximates “the relative functions of the trial and appellate courts while ensuring the consistent and uniform protection of a fundamental civil liberty.” Id. at 1271. Application of the clearly erroneous standard to the underlying factual findings “recognizes the trial court’s advantaged position in judging credibility and resolving evidentiary conflicts” while application of the de novo standard to the “ultimate voluntariness determination acknowledges” the traditional role of appellate judges in giving content to that inquiry. Id. The Utah court’s reasoning echoes that of the high court, and is worth consideration in full:

[T]he concept of “voluntariness” reflects a balance between the need for effective law enforcement and society’s belief that the coercive powers of law enforcement must not be unfairly exercised. Declaring whether certain police conduct is or is not unfairly coercive sets the norms that fix the limits of acceptable police behavior. There can be little question that establishing such norms involves substantive policy judgments and that such norms should have jurisdiction-wide application. These are functions classically reserved to multi-judge appellate panels. In short, what constitutes unfairly coercive police behavior should not vary from courtroom to courtroom within Utah. This end is best accomplished by viewing the ultimate conclusion that consent was voluntary or involuntary as a question of law, reviewable for correctness.

Id. (citations omitted).

¶ 19. The Wisconsin Supreme Court also engaged in a thoughtful analysis of the issue in State v. Phillips, 577 N.W.2d 794 (Wis. 1998). The Phillips court addressed the state’s request to overrule its earlier holding in State v. Turner, 401 N.W.2d 827, 833 (Wis. 1987), that voluntariness of consent to search is reviewed independently on appeal. The state cited the federal decisions predicated on Schneckloth’s characterization of the issue as one of fact to be determined from the totality of the circumstances. Phillips, 577 N.W.2d at 800. The Wisconsin court, however, rejected the proposition that standard of review “turn[s] on whether the underlying determination of the [trial] court was fact-specific.” Id. Instead, like the U.S. Supreme Court in Miller and Ornelas, the court reasoned that “the principal reason for independent appellate review ... is to provide uniformity in constitutional decision-making” on matters that reflect “the basic value commitments of our society.” Id. at 800-01. “In applying the skeletal constitutional rule,” the court continued, “appellate courts flesh out the rule and provide guidance to litigants, lawyers, and trial and appellate courts.” Id. at 801 (quotation omitted). The court thus concluded that it would continue to treat voluntariness of consent as an issue of “constitutional fact” subject to independent review on appeal. Id.

¶ 20. As noted, other courts have reached similar conclusions, for similar reasons. See, e.g., Phuagnong v. State, 714 So. 2d 527, 529-30 (Fla. Dist. Ct. App. 1998) (relying on high court decisions in Miller and Ornelas to hold that “[t]he same reasoning supports independent appellate review where the validity of a search has been found to rest ... on consent”); Nadeau, 2010 ME 71, ¶ 18 (holding that voluntariness of consent to search presents an “analogous” issue to voluntariness of a confession and .thus, as in Miller, presents a “legal question that we will review de novo”); Turner v. State, 754 A.2d 1074, 1080 (Md. Ct. Spec. App. 2000) (relying on Ornelas to hold that consent to search implicates a “constitutionally protected right” requiring independent review (quotation omitted)); State v. Stevens, 806 P.2d 92, 103 (Or. 1991) (relying on its holding in State v. Warner, 585 P.2d 681, 686 (Or. 1978), that a reviewing court has a “duty to interpret constitutional standards and require conformance thereto” and concluding that, as to voluntariness of consent to search, reviewing court must “assess anew whether the facts suffice to meet constitutional standards”); Shelton, 990 A.2d at 199 (relying on Ornelas to hold that “the voluntariness of an individual’s consent to search is reviewed by this Court de novo”).

¶ 21. Still, a number of courts, for reasons not always clear, continue to apply the clearly erroneous standard to consent to search. Although rarely discussed in the case law, objections to independent review appear to focus on several points. First is the matter of judicial resources, i.e., the concern that de novo review is “redundant and wasteful” and might serve to encourage frivolous appeals. Thurman, 846 P.2d at 1271; see also F. Strong, The Persistent Doctrine of “Constitutional Fact”, 46 N.C. L. Rev. 223, 281 (1968) (expressing concern over the potential proliferation of cases requiring independent review); A. Hoffman, Note, Corralling Constitutional Fact: De Novo Fact Review in the Federal Appellate Courts, 50 Duke L.J. 1427, 1459 (2001) (citing the worry that an “overly expansive constitutional fact doctrine would . . . overwhelm” the appellate docket). As the court in Thurman observed, however, the argument proves too much; it could be applied to any issue of law subject to de novo review, and thus provides no real “reason in itself to adopt the clearly erroneous standard.” 846 P.2d at 1271; see also M. Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D. 173, 181 (1978) (rejecting preservation of judicial resources as a persuasive reason for appellate deference because “it is non-discriminating [and] could apply to any and every question”). The concern for preserving appellate resources is even less persuasive in states like Vermont, where appeal from a criminal conviction is “as of right” to the Supreme Court.

¶ 22. Another related concern expressed by some commentators is the need to define “effective limiting principle^] for when constitutional fact review should be applied,” so that every issue with a constitutional dimension does not necessarily acquire de novo status. Hoffman, supra, 50 Duke L.J. at 1434; see also Monaghan, supra, 85 Colum. L. Rev. at 264 (citing the “extraordinary variety of contexts” in which the issue may arise). The concern is a real one, but it has been addressed. As noted, beginning with Miller the high court has articulated and applied a reasonably coherent standard-of-review jurisprudence, focusing on the respective competencies of trial and appellate courts to resolve the issue, the need for precedential decisions to guide police and judicial decisionmakers, and the nature and relative importance of the values underlying the constitutional claim. Moreover, while the high court has extended independent review to a number of additional areas, see, e.g., United States v. Bajakajian, 524 U.S. 321, 337 n.10 (1998) (review of Eighth Amendment claim subject to de novo review), it has also had no difficulty holding some issues to be more appropriate for deferential review. See Thompson, 516 U.S. at 111 (reaffirming its earlier decisions in Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam), and Wainwright v. Witt, 469 U.S. 412, 429 (1985), that issues of competency to stand trial and juror impartiality, respectively, “depend[] heavily on the trial court’s appraisal of witness credibility and demeanor” and therefore warrant deferential review); Minnesota v. Olson, 495 U.S. 91, 100 (1990) (stating that the Court was “not inclined to disagree with [state court’s] fact-specific” decision as to whether exigent circumstances to prevent either escape or destruction of evidence justified warrant-less entry); see also State v. Byrge, 2000 WI 101, ¶¶ 43-44, 614 N.W.2d 477 (applying high court’s holdings in Miller and Thompson to conclude that the ultimate resolution of defendant’s competency to stand trial rests on trial court’s observations of witness credibility and demeanor and therefore is subject to clearly erroneous standard).

¶23. Finally, there is the argument from authority. This generally takes two forms. Those courts that continue to apply a clearly erroneous standard do so largely on the basis of longstanding precedent — precedent that relies, in turn, on Schneckloth’s characterization of the question as one of fact comparable to confessions. See e.g., Navarro, 90 F.3d at 1256 (concluding on the basis of Schneckloth that the court would “review the question of voluntariness ... for clear error because it is a question of fact to be determined from the totality of the circumstances” (quotation and citation omitted)). As we have seen, however, the voluntariness of a confession “is uniformly held to be subject to de novo review.” Tompkins, 130 F.3d at 121 n.10. Thus, any logical coherence in grounding deferential review of consent to search on Schneckloth’s characterization of the question as one of fact is illusory.

¶ 24. A few courts have gone further and determined not to depart from the clearly erroneous standard on the strength of the Supreme Court’s reaffirmation of Schneckloth in Ohio v. Robinette, 519 U.S. 33, 40 (1996). See, e.g., Tompkins, 130 F.3d at 120 (“The Robinette Court noted that voluntariness of consent to search is a question of fact; as such, it does not trigger the die novo review mandated by the Supreme Court in Ornelas.”); State v. Southern, No. 00CA2541, 2000 WL 33226310, at *3 (Ohio Ct. App. Dec. 28, 2000) (concluding that it was “duty bound to follow” Robinette in determining whether trial court’s finding on voluntariness of consent to search was against manifest weight of the evidence). The difficulty here is that Robinette was no more concerned with standard of review than Schneckloth. The question was whether a consent to search should be considered involuntary “per se” where the police fail to inform the suspect that he or she is free to go, and the Court simply reaffirmed its holding in Schneckloth that the question is not susceptible to “bright-line” rules but turns on all the circumstances surrounding the encounter. 519 U.S. at 39-40. Thus, Robinette is no more persuasive on the issue than Schneckloth.

¶ 25. With this background in mind, we are persuaded that the reasoning of those courts that have adopted independent review in this setting is fundamentally sound, and that any objections are without merit.⁶ As with the facts surrounding a confession, the voluntariness of a consent to search focuses on a variety of objective factors relating to the suspect’s age, mental ability, and experience and the environment in which the consent was obtained, including the location and length of the stop, the use of physical restraint, threats or intimidation, and whether the suspect was informed of his or her right to withhold consent. See United States v. Golinveaux, 611 F.3d 956, 959 (8th Cir. 2010) (enumerating factors relevant to voluntariness analysis); Sprague, 2003 VT 20, ¶¶ 28-29 (concluding that consent was not voluntary based on certain “inherently coercive” factors including defendant’s initial seizure, officer’s “show of authority,” the location of the stop, and the absence of warnings that defendant could refuse consent). The ultimate question is whether “a reasonable person in defendant’s circumstances” would have felt free to refuse the officer’s request. Sprague, 2003 VT 20, ¶ 28. Thus, once the underlying historical facts are determined, issues of credibility and demeanor (the province of the trial court) are not central to the ultimate decision. See Thompson, 516 U.S. at 113 (observing that “[Credibility determinations, as in the case of the alleged involuntariness of a confession, . . . may sometimes contribute to the establishment of the historical facts” but the “crucial question entails an evaluation made after determination of those circumstances” as to how a “reasonable person” would have understood the situation).

¶ 26. At the same time, as the Supreme Court stressed in Ornelas, the “multi-faceted” nature of the voluntariness inquiry underscores the need for a body of binding case-law applying the consent-standard in a variety of individual cases, thereby providing “content . . . through application” and guidance to the police and the trial courts. 517 U.S. at 697; see also Miller, 474 U.S. at 114 (citing the imperative for independent review where “the relevant legal principle can be given meaning only through its application to the particular circumstances of a case”). Finally, we recognize that the voluntariness-of-consent issue implicates a “complex of values,” Miller, 474 U.S. at 116 (quotation omitted); it requires a balancing of the need for effective law enforcement against the imperative to restrain unfair police tactics and maintain individual dignity — a declaration of constitutional norms and values that demands statewide force and application. These are functions that only a reviewing court with broad jurisdiction and authority can perform. Accordingly, we hold that a trial court’s decision on the question of the voluntariness of a consent to search, and thus the ultimate constitutional validity of the search, must be reviewed independently by this Court on appeal.

¶ 27. Although our dissenting colleague objects to this holding on several grounds, none proves persuasive. The dissent expresses initial concern about “the breadth of the majority holding,” observing that “the issues underlying a motion to suppress can be very different.” Post, ¶¶ 47, 48. We quite agree, which is why our analysis is focused exclusively on consent to search, and our holding is limited to that issue. The concern for overbreadth is unfounded.

¶ 28. Equally baseless is the dissent’s suggestion that our holding represents a departure from past practice based on a misguided desire to “fix” what is not broken. Post, ¶ 51. On the contrary, as explained at the beginning of this opinion, the law in this area (our own included) is strikingly unsettled and inconsistent, and warrants the fresh review in the preceding discussion. Nor does our holding break new ground. While we acknowledge the split of authority on the question presented, we ultimately rely on the reasoning in numerous state court decisions that the voluntariness of a suspect’s consent to search must be examined independently by a reviewing court.

¶ 29. Turning to issues of substance, the dissent questions the relevance of the trilogy of Supreme Court decisions — Miller, Thompson, and Ornelas — that inform our analysis. If these cases are indeed inapposite then we can only conclude that the numerous courts and commentators that have relied on them for similar guidance must be equally misinformed. That is not, however, the case. While it was decided as a habeas matter, Thompson’s analysis of the respective roles of trial and appellate courts has been usefully applied beyond the habeas context, to hold, for example, that “in custody” determinations for Miranda purposes must be reviewed de novo in direct appeals. See, e.g., United States v. LeBrun, 363 F.3d 715, 719 (8th Cir. 2004) (“It seems clear to us that Thompson’s rationale requires that on direct appeal we review the district court’s custody determination de novo.”); State v. Smith, 38 P.3d 1149, 1153 (Alaska 2002) (“[W]e . . . adopt Thompson’s rationale and apply de novo review to the ultimate Miranda custody determination on direct appeal.”); State v. Oney, 2009 VT 116, ¶ 13 n.6, 187 Vt. 56, 989 A.2d 995 (relying on Thompson to hold that “in custody” determination is “subject to independent review”). Thompson has also been cited as instructive in other fact/law contexts, including issues of voluntariness. See P. Rutledge, Comment, The Standard of Review for the Voluntariness of a Confession on Direct Appeal in Federal Court, 63 U. Chi. L. Rev. 1311, 1335 (1996) (“Under the Thompson conception of the mixed question analysis, an appellate court should review the voluntariness determination de novo.”).

¶ 30. The dissent’s critique of Ornelas is weaker still, resting on a claim that we have ignored or rejected that portion of the Supreme Court’s opinion reaffirming the traditional deference afforded trial court findings of historical fact. Ornelas’s significance, however, was its seminal holding — later specifically reaffirmed in United States v. Arvizu, 534 U.S. 266 (2002) — that the standard of appellate review for reasonable-suspicion determinations must be de novo in order “to unify precedent!,] . . . provide law enforcement officers with the tools to reach correct determinations beforehand,” and “add to the body of law on the subject.” Id. at 275 (citing and quoting Ornelas, 517 U.S. at 697-98)). As previously discussed, but largely ignored by the dissent, the high court’s analysis and holding in Ornelas have been applied by courts in other areas, including consent searches.

¶ 31. The third and arguably most compelling leg of our analysis, Miller v. Fenton, the dissent dismisses as yet another habeas case. As explained, however, the Supreme Court expressly extended its holding in Miller to direct appeals in Fulminante, 499 U.S. at 287 (holding that “the ultimate issue of ‘voluntariness’ is a legal question” requiring independent review (quoting Miller, 474 U.S. at 110)). More important, the dissent overlooks the body of case law — previously discussed — that has relied on Miller to conclude that the voluntariness of a consent search must be reviewed de novo on appeal.

¶ 32. The dissent further claims that the “most important” distinction between this case and the Supreme Court decisions is that the voluntariness inquiry here implicates a “subjective” standard requiring a determination of the defendant’s state of mind, an inquiry that turns principally on issues of fact. Post, ¶¶ 61, 64. The argument is demonstrably incorrect. This and other courts have repeatedly recognized that the fundamental inquiry in the consent-to-search context is whether “a reasonable person in defendant’s circumstances would . . . have felt free to refuse.” Sprague, 2003 VT 20, ¶ 28 (emphasis added); see also Stevens, 2004 VT 23, ¶ 16 (mem.) (applying “reasonable person” standard to hold that atmosphere was not so inherently coercive as to prevent voluntary consent to search). As noted, decisions far too numerous to cite in toto apply the identical standard. See, e.g., United States v. Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007) (“The central question in determining whether consent to a search is voluntary is ‘whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ request’ ” (quoting Florida v. Bostick, 501 U.S. 429, 439 (1991)); United States v. Butler, 102 F.3d 1191, 1197 (11th Cir. 1997) (observing that decision on whether consent to search was voluntary requires consideration of whether “ ‘the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s request’ ” (quoting Bostick, 501 U.S. at 439)); State v. Bell, 557 N.W.2d 603, 607 (Minn. Ct. App. 1996) (determining whether consent to search was voluntary “requires the court to ask whether a reasonable person would have felt free to refuse the officer’s request”); State v. Cromer, 186 S.W.3d 333, 347 (Mo. Ct. App. 2005) (in determining whether consent to search was voluntary, court must “determine whether the police conduct would have . . . communicated to a reasonable person that the person was not free to decline the officers’ requests” (quotation omitted)); State v. Jones, 932 N.E.2d 904, 917 (Ohio Ct. App. 2010) (determining whether consent to search was freely given requires “an objective test, and the proper inquiry is whether a reasonable person would feel free to decline the officers’ requests” (quotation omitted)).

¶ 33. The voluntariness inquiry may include an appraisal of such personal attributes as the suspect’s age, education, maturity, and intelligence. Fulminante, 499 U.S. at 286 n.2; Schneckloth, 412 U.S. at 226. Nevertheless, the inquiry remains an objective one, focused on whether a reasonable person in the defendant’s circumstances would have retained the freedom of will to withhold consent, not whether the specific defendant’s subjective will was overborne. See Commonwealth v. Strickler, 757 A.2d 884, 901 (Pa. 2000) (observing that, “although the [voluntariness] inquiry is an objective one, the maturity, sophistication and mental or emotional state” of the defendant may be taken into account). Thus, as noted, appellate courts have traditionally reviewed and resolved independently the question of voluntariness in order to “guide police, unify precedent, and stabilize the law.” Thompson, 516 U.S. at 115; see also Strickler, 757 A.2d at 901 (observing that the test for voluntariness “centrally entail[s] an examination of the objective circumstances surrounding the police/citizen encounter” to determine the “impact upon a reasonable citizen-subject’s perspective”).

¶ 34. Ultimately, it is not the purported distinctions from Ornelas, Thompson, and Miller that appear to drive the dissent but rather a fundamental disagreement with their holdings, a disagreement grounded on a suspicion that de novo review somehow represents a “negative assessment of the quality of fact-finding by trial courts with respect to federal constitutional questions.” Post, ¶ 76. This inference is unfounded and can not be reached by anything stated or implied in the majority opinion. Like the U.S. Supreme Court, we continue to accord substantial deference to the trial court’s findings of historical fact. Nothing in our opinion can or should be construed to undermine this fundamental principle of appellate review.

II.

¶ 35. Turning to the particular facts and circumstances presented, our independent review of the record leads us to conclude that Stone’s consent to search was voluntary. Defendants’ appeal focuses on two principal points. First, they contend the trial court disregarded a critical circumstance that allegedly rendered the environment inherently coercive, to wit, Stone’s observation from the police cruiser of defendants’ being forced to the ground at gunpoint, handcuffed, and patted down.⁷ The trial court found in this regard that “n[o] evidence was presented at the evidentiary hearing to substantiate that this is why Stone gave consent to search his vehicle or that he considered this in any way,” and the court declined to “speculate” that “this set of circumstances is what caused Stone to give consent to search the vehicle.” As we have explained, however, the question here is not what subjectively motivated Stone to give consent, but whether a reasonable person in his position would have felt so threatened by the armed subjugation of his colleagues that any subsequent consent to search could not be freely given. Sprague, 2003 VT 20, ¶ 28.⁸

¶ 36. Viewing the officer with his gun drawn outside of the police cruiser might have seemed intimidating to Stone, sitting inside of the cruiser. Nevertheless, we are persuaded by all of the surrounding facts and circumstances that his consent to search was voluntary. Display of a weapon, shouting, and forcibly subduing or handcuffing a suspect does not per se vitiate a subsequent consent to search that the record otherwise shows to be uncoerced and freely given. See, e.g., United States v. Brown, 563 F.3d 410, 413, 416 (9th Cir. 2009) (upholding consent to search after suspect was initially ordered to ground at gunpoint, handcuffed, and patted down); United States v. Jones, 523 F.3d 31, 38 (1st Cir. 2008) (rejecting claim that circumstances of consent to search were “inherently coercive” where it was preceded by officers’ forcible entry with guns drawn and defendant was handcuffed and removed to separate room); United States v. Kimoana, 383 F.3d 1215, 1226 (10th Cir. 2004) (although officers entered room with guns drawn and raised voices, subsequent consent to search was voluntary where guns were holstered and “calm” had been restored); State v. Sokolowski, 474 S.E.2d 333, 336 (N.C. 1996) (upholding consent to search from suspect earlier disarmed at gunpoint, Mirandized, and in custody); Sole, 2009 VT 24, ¶ 24 (observing that “it is settled that consent may be properly deemed voluntary even when a suspect is handcuffed and under arrest”).

¶ 37. Stone’s observation of the officers’ display of force may have been unsettling, but it was not specifically directed at him, and there was nothing about the encounter to suggest that Stone’s capacity to reason should have been unhinged or his ability to consent overborne. See United States v. Taylor, 31 F.3d 459, 464 (7th Cir. 1994) (observing that, “[tjhough certainly unpleasant,” officers’ forced entry at gunpoint, display of weapons and badges, and forcible restraint of defendant were “commonly used” tactics to protect officer safety and did not vitiate voluntariness of subsequent consent). The conversation leading to Stone’s consent occurred about five minutes after the incident, in the trooper’s vehicle and in an atmosphere of relative calm. In that discussion, the officer assured Stone several times in a level and conversational tone that he was not required to consent to a search of his car. He stated, “I want to make it abundantly clear to you that you don’t have to allow this.” Although we have held that the police are not required to advise a suspect of his or her right to withhold consent, the giving of such advice supports the conclusion that the consent was voluntary. Sprague, 2003 VT 20, ¶ 29; see also United States v. Mendenhall, 446 U.S. 544, 558-59 (1980) (although Constitution did not require it, fact that suspect was twice informed of her right to withhold consent to search “was highly relevant to the determination that there had been consent”). Stone also signed a consent-to-search form, which — while not dispositive — also supports a finding of voluntariness. See Taylor, 31 F.3d at 463 (fact that suspect signed consent-to-search form “weighs heavily toward finding that his consent was valid”).

¶ 38. It is true that the officer also cautioned Stone that a refusal to give consent would result in the officer’s “attempting to obtain a search warrant from a judge.” We have explained, however, that statements indicating an intent by the police to apply for a warrant merely “describe what will occur in the event of a refusal” and do not undermine a subsequent consent to search. State v. Pitts, 2009 VT 51, ¶ 30, 186 Vt. 71, 978 A.2d 14. Nor, contrary to defendants’ assertion, do the additional circumstances that Stone expressed a desire to get back to his young daughter, that the stop occurred late at night on the side of the road, or that a number of officers were present — viewed individually or in combination — demonstrate an environment so inherently coercive that Stone could not freely give consent to the search.

¶ 39. Second, defendants assert that Stone was indisputably in police custody — indeed that he was effectively under arrest without probable cause — thereby rendering his consent to search involuntary and “tainting” any evidence obtained therefrom. See Sprague, 2003 VT 20, ¶¶ 31-33 (holding that illegal seizure tainted defendant’s subsequent consent to search); State v. Chapman, 173 Vt. 400, 403, 800 A.2d 446, 449 (2002) (recognizing that an investigative detention may become so intrusive as to become “the functional equivalent of a formal arrest”). Even if the circumstances supported defendants’ claim that Stone was under de facto arrest, however, it would not necessarily render his consent involuntary or the evidence inadmissible. First, “custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.” United States v. Watson, 423 U.S. 411, 424 (1976). Indeed, as noted earlier, this and other courts have consistently held that “consent may be properly deemed voluntary even when a suspect is handcuffed and under arrest.” Sole, 2009 VT 24, ¶24; accord Jones, 523 F.3d at 38-39 (upholding voluntariness of consent of suspect who had been handcuffed, Mirandized and questioned in custody); Taylor, 31 F.3d at 463-64 (finding that consent to search was voluntary after defendant was detained and read his Miranda rights); State v. Harmon, 910 P.2d 1196, 1208 (Utah 1995) (upholding voluntariness of consent from suspect who was under arrest and in handcuffs). Although Stone was in detention, nothing in the record suggests that he was subjected to any form of police coercion in granting consent to search the vehicle.

¶ 40. Furthermore, that the circumstances may — arguably — have elevated Stone’s detention to the level of a de facto arrest does not invariably “taint” Stone’s subsequent consent to search. Based on his initial observation of what he believed, in his experience, to be marijuana flakes, the investigating officer had at least a reasonable suspicion of wrongdoing sufficient to justify Stone’s initial brief detention in the cruiser. See State v. Ford, 2007 VT 107, ¶ 4, 182 Vt. 421, 940 A.2d 687 (holding that reasonable and articulable suspicion of wrongdoing may support brief detention and questioning into circumstances that gave rise to suspicion). Defendants contend, however, that the initial detention, which lasted several minutes, was custodial in nature and therefore required not simply reasonable suspicion, but actual probable cause to arrest. See Sole, 2009 VT 24, ¶ 18 (while mere placement of driver in police cruiser does not render questioning custodial, further questioning about drug possession “turned what might have remained a simple roadside inquiry during a routine traffic stop into an interrogation under circumstances approximating arrest”).

¶ 41. Whatever the merits of this claim, the facts establish no causal nexus between Stone’s brief initial detention and his later consent to search. As noted, the record shows that Stone denied any illegality; that the officer then left the cruiser to speak with the remaining passengers in the vehicle about what he believed to be marijuana, where he observed the cocaine and related packaging materials; and that he then returned to the cruiser, informed Stone about the contraband, and received consent to search during the subsequent colloquy. Nothing that occurred during the initial detention, therefore, appears to have caused the officer to approach and question the other passengers, observe the cocaine, or return to question Stone. We thus discern no basis to conclude that the initial detention led to or “tainted” the later consent. To the extent that there was any connection, however, we are satisfied that it was sufficiently attenuated by the several intervening events. See Sprague, 2003 VT 20, ¶ 32 (consent to search may be upheld where intervening significant events vitiate any taint arising from illegal detention).

¶42. Even assuming, however, that Stone was effectively in custody and under arrest when he actually consented to the search, the de facto arrest would only be illegal if the police at that point lacked probable cause. See State v. Guzman, 2008 VT 116, ¶ 16, 184 Vt. 518, 965 A.2d 544 (finding of probable cause to arrest does not require “formal[] arrest” of suspect since “[p]robable cause depends on whether there are objective facts to support such a finding, not whether the officers subjectively believed there was probable cause”). The standard for a finding of probable cause for a warrantless arrest is whether “the facts and circumstances known to an officer are sufficient to lead a reasonable person to believe that a crime was committed and that the suspect committed it.” State v. Chicoine, 2007 VT 43, ¶ 8, 181 Vt. 632, 928 A.2d 484 (mem.). The question must be resolved in light of the totality of the circumstances, assessed in a “practical . . . common sense manner.” Guzman, 2008 VT 116, ¶ 11 (quotation omitted).

¶ 43. Probable cause to arrest or search may be based on the observation of illegal drugs by an officer with the training and experience to identify them as such. See, e.g., State v. Delaoz, 2010 VT 65, ¶ 20, 189 Vt. 385, 22 A.3d 388; Guzman, 2008 VT 116, ¶¶ 12-15. The testimony and affidavit of the investigating officer here stated that he initially observed green flakes on defendant Weisler which, according to his training and experience, he believed to be marijuana. He later observed in plain view on the floor of the vehicle a roll of cellophane wrap and a large clear baggie containing a white powder which, based on his training and experience, the officer believed to be cocaine. Many courts have found similar factual scenarios sufficient to support a finding of probable cause to arrest. See, e.g., Blackmon v. United States, 835 A.2d 1070, 1075 (D.C. Cir. 2003) (experienced officer had probable cause to arrest for possession of cocaine upon observing bag in vehicle containing white rock-like substance, and was not required to field test substance before arrest); United States v. Rosario, 638 F.2d 460, 462 (2d Cir. 1980) (officer’s observation of suspect furtively carrying plastic bag containing white substance to vehicle supported probable cause to arrest for possession of cocaine); State v. Jackson, 778 So. 2d 23, 28-29 (La. Ct. App. 2000) (finding probable cause based on experienced officer’s conclusion that plastic bag containing white powder on floor of suspect’s car was cocaine); Commonwealth v. Santana, 649 N.E.2d 717, 722 (Mass. 1995) (trained officer had probable cause to seize clear plastic bag containing white substance observed during traffic stop where “its incriminating character was immediately apparent” (quotation omitted)); State v. Flores, 996 A.2d 156, 162-64 (R.I. 2010) (finding probable cause to arrest where, during traffic stop, officer observed two clear plastic bags containing white substance in car’s center console).

¶ 44. Viewing the circumstances presented here in their entirety and in a “practical [and] . . . common sense manner,” Guzman, 2008 VT 116, ¶ 11, we conclude that the officer’s clear viewing of what appeared — based on his training and experience — to be cocaine on the floor of Stone’s car, combined with his earlier observation of what he believed to be marijuana flakes, the packaging of the white substance which he recognized as “consistent with powdered cocaine,” and the roll of cellophane wrap which is commonly used in packaging illegal drugs,⁹ were sufficient to establish probable cause to arrest.¹⁰ We thus find no merit to the claim that Stone’s consent was irremediably tainted by an illegal de facto arrest, and no basis to disturb the judgment.

Affirmed.

1 Although the trial court found that the record was unclear whether Stone was handcuffed at this time, defendants claimed in their opening brief that he was handcuffed. The State disagreed, and defendants ultimately conceded in their reply brief and at oral argument that he was not handcuffed until later, and then only for a brief period of three to four minutes.

2 Although the trial court made no findings on whether or when Stone was handcuffed, the parties agree that the videotape shows that the investigating officer placed Stone in handcuffs shortly after subduing Weisler and King, but removed them several minutes later, before the second interview with Stone in which he consented to the search.

3 The State does not contest defendants’ standing to assert the claim under the automatic standing rule of State v. Wright, 157 Vt. 653, 654, 596 A.2d 925, 926 (1991) (mem.).

4 Our own confession cases are similarly erratic, occasionally stating that we review for clear error, see, e.g., State v. Beckley, 157 Vt. 446, 450, 600 A.2d 294, 296 (1991), while recognizing the need for an independent determination of the ultimate issue of voluntariness, In re Robinson, 161 Vt. 550, 554, 641 A.2d 779, 781 (1994).

5 Although Miller involved federal habeas review of a state decision, the Court has since applied the independent review standard to confessions on direct appeal. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 287 (1991).

6 Our conclusion is based on the persuasive principles articulated by the Supreme Court and applied by a number of state courts, as discussed above. Therefore, we note, but need not resolve, the ongoing debate among courts and commentators as to whether the principles articulated by the Supreme Court concerning the standard of review for Fourth Amendment-related issues are actually binding on the states. See generally R. Coombs, A Third Parallel Primrose Path: The Supreme Court’s Repeated, Unexplained, and Still Growing Regulation of State Courts’ Criminal Appeals, 2005 Mich. St. L. Rev. 541, 551-52 (discussing the substantial confusion among state appellate courts as to whether they are bound to apply the Supreme Court’s de novo review decisions because the Court “has not yet expressly stated, nor otherwise eliminated substantial doubt, ... in whole or part [that] such review is constitutional doctrine and thus binding on both federal and state appellate courts”).

7 Stone was also handcuffed at one point during the episode, but defendants have conceded that the handcuffs were removed before the conversation with the officer in which he gave consent to search.

8 Defendants also summarily assert that the trial court’s statements, quoted above, indicate that the court impermissibly shifted the burden of proof on the voluntariness of consent to defendants. See State v. Pitts, 2009 VT 51, ¶ 24, 186 Vt. 71, 978 A.2d 14 (noting that State carries burden of demonstrating that consent was freely given and not coerced). The court’s statements do not, however, suggest either that it misunderstood the burden of proof — which it accurately described as resting with the State — or that it impermissibly shifted the burden to defendants.

9 See, e.g., United States v. Lasso-Barrios, 958 F. Supp. 283, 287 (W.D. Tex. 1997) (officers’ discovery in van of incriminating evidence, including large roll of plastic wrap which “is commonly used to wrap marijuana,” supported reasonable suspicion that van contained contraband); Servis v. Commonwealth, 371 S.E.2d 156, 158, 165 (Va. Ct. App. 1988) (holding that cellophane seized in connection with small amounts of marijuana and cocaine was part of “paraphernalia used in the packaging process” and therefore relevant to demonstrating intent to distribute (quotation omitted)).

10 While asserting that he was effectively under arrest, Stone does not seek to suppress under Miranda v. Arizona, 384 U.S. 436 (1966), any unwarned statements that he made to the officer during the conversation, and we have held that a consent to search is not testimonial in nature and therefore does not require Miranda warnings even if the suspect is in custody. Sole, 2009 VT 24, ¶ 22.