Vermont rejects Patane and suppresses evidence holding that following it would encourge Miranda violations

Defendant pulled up next to a police car and asked a question. The officer could smell burnt marijuana. That led to questioning and whether the officer could search his car and house, and defendant permitted it. Under United States v. Patane (2004), the search after the statement would not be suppressed. The Vermont Supreme Court determines that the Vermont Constitution required suppression of the evidence. State v. Peterson, 2007 VT 24, 181 Vt. 436, 923 A.2d 585 (2007):

[*P17] In examining whether we should follow Patane under the Vermont Constitution, we start with the context of our decision. The right against self-incrimination is guaranteed in the Fifth Amendment to the United States Constitution, which prohibits compelling a criminal defendant to “be a witness against himself.” U.S. Const. amend. V. Equivalently, Article 10 of the Vermont Constitution prohibits compelling a person “to give evidence against oneself.” Vt. Const. ch.1, art. 10. We have held, with respect to adults, that “the Article 10 privilege against self-incrimination and that contained in the Fifth Amendment are synonymous.” State v. Rheaume, 2004 VT 35, P18, 176 Vt. 413, 853 A.2d 1259; see State v. Ely, 167 Vt. 323, 330-31, 708 A.2d 1332, 1336 (1997) (declining to find significance in textual distinction between the two provisions). Consistent with this view, we have held that evidence gathered in violation of the prophylactic rules established in Miranda is also a violation of Article 10. State v. Brunelle, 148 Vt. 347, 355 n.11, 534 A.2d 198, 204 n.11 (1987); see also Rheaume, 2004 VT 35, P15. We have not, however, gone beyond Miranda and found a violation of the principles of that decision where the United States Supreme Court has not done so. Rheaume, 2004 VT 35, P15.

[*P18] If this case involved the substance of Miranda, for example, the nature of the warnings or the circumstances under which that must be given, the State would have a strong argument that our precedents require that we not go beyond the limits in the decisions of the United States Supreme Court. This, however, is a case in which the district court found a violation of Miranda under accepted principles and defendant made a confession to an additional crime under custodial interrogation, a confession that is inadmissible under Miranda. The issue is the scope of the remedy for the Miranda violation, and on this point our precedents take a different view from that of the United States Supreme Court. See State v. Oakes, 157 Vt. 171, 174-75, 598 A.2d 119, 121-22 (1991) (noting that the United States Supreme Court describes the federal exclusionary rule for Fourth Amendment violations as “a judicially created remedy rather than a constitutional right”).

. . .

[*P24] We would have to make a fundamental departure from our exclusionary rule jurisprudence in order not to apply an exclusionary rule here. In fact, we would have to overrule Badger or substantially narrow it. The approach of Patane, on the other hand, would create an incentive to violate Miranda. We see no justification for such a retrenchment in these circumstances. In addition, because the Miranda rule is intended to protect the right to counsel, as well as the right against self-incrimination, we would have to ignore the holding in Bean and like cases which use an exclusionary rule to protect the right to counsel.

[*P25] We note that the three state supreme courts that have analyzed Patane under their state constitutions have concluded that they cannot adopt it because it undercuts the enforcement of Miranda. In Commonwealth v. Martin, 444 Mass. 213, 827 N.E.2d 198 (Mass. 2005), the Massachusetts Supreme Judicial Court refused to follow Patane in enforcing Miranda rights through Article 12 of the Declaration of Rights of the Massachusetts Constitution. The court agreed with the observation of Justice Souter, dissenting in Patane, that the decision added “‘an important inducement for interrogators to ignore the [Miranda] rule'” and created “‘an unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained.'” Id. at 203 (quoting Patane, 524 U.S. at 647 (Souter, J., dissenting)). It concluded: “To apply the Patane analysis to the broader rights embodied in art. 12 would have a corrosive effect on them, undermine the respect we have accorded them, and demean their importance to a system of justice chosen by the citizens of Massachusetts in 1780.” Id. Thus, it followed earlier decisions in which it had rejected United States Supreme Court rulings weakening the applicability of Miranda. Id. at 206.
[The other two cases are State v. Knapp, 2005 WI 127, 700 N.W.2d 899 (Wis. 2005), and State v. Farris, 109 Ohio St. 3d 519, 849 N.E.2d 985 (Ohio 2006).]

. . .

[*P28] For the above reasons, we conclude that we will not follow United States v. Patane under Article 10 of the Vermont Constitution and our exclusionary rule. Physical evidence gained from statements obtained under circumstances that violate Miranda is inadmissible in criminal proceedings as fruit of the poisonous tree. Since it is undisputed that the marijuana plants were such fruit in this case, the district court erred in failing to suppress them.