VT: Video recording of def’s telephone conversation with defense counsel required suppression of breath test

Defendant was in the room with the breath testing machine, and his telephone conversation with his lawyer was recorded. Recording was accidental, but defendant correctly believed that it was. This requires suppression of the breath test because his consultation with defense counsel wasn’t unfettered. State v. Gagne, 2016 VT 68, 2016 Vt. LEXIS 64 (June 10, 2016):

[*P18] In reaching our conclusion, we noted that Powers presented the mirror image of Sherwood. Specifically, we noted that, in contrast to Sherwood, in Powers, the defendant reasonably believed he was being recorded, despite the officer turning off the recording equipment. Powers, 176 Vt. 444, 2004 VT 39, ¶ 9, 852 A.2d 605. Further, we found the defendant did not have a meaningful consultation with counsel because he testified that he felt inhibited by that conversation. Id. ¶ 10. That inhibition was objectively reasonable, as evidenced by the fact that even the state’s attorney conceded that under similar circumstances, he would feel inhibited. Id. We therefore concluded that “the perceived monitoring caused [the] defendant to feel inhibited from asking his attorney questions,” warranting suppression of his refusal to submit to the breath test. Id. ¶ 13.

[*P19] This case is closer to Powers than it is to Sherwood, and we conclude on the basis of the trial court’s factual findings that a reasonable person in defendant’s position under the circumstances of this case would feel inhibited in conferring with counsel. The trial court found that defendant repeatedly stated to the police officer his belief that everything, including his conversation with counsel, was being recorded, yet the police officer said nothing to contradict defendant’s belief. Although Powers is a stronger case in that the police officer specifically told the defendant that he was being recorded, a reasonable person in defendant’s circumstances here could conclude that the conversation was being recorded given the officer’s silence in response to defendant’s multiple statements that he knew he was being recorded. Accordingly, the motion to suppress should have been granted, and we reverse the judgment of conviction for driving under the influence.