Note: Decisions of a three-justice panel are not t o be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2011-194

DECEMBER TERM, 2011

State of Vermont } APPEALED FROM: } } Superior Court, Washington Unit,

v. } Criminal Division } Robert Gilman } DOCKET NO. 952-8-09 Wncr

Trial Judge: Brian J. Grearson

In the above-entitled cause, the Clerk will enter:

Defendant appeals from an order of the Washington S uperior Court, Criminal Division, denying a motion to suppress. He contends the tria l court erred in rejecting a claim of police

coercion. We affirm.

This is defendant’s second appeal from a judgment o f conviction of DUI and several related charges. The facts are largely set forth i n the original appeal, State v. Gilman, No. 2010- 210, 2011 WL 4977988 (Vt. Jan. 27, 2011) (unpub. me m.), and may be briefly summarized here. Early on the morning of July 18, 2009, a police off icer observed a vehicle traveling in excess of the speed limit on Route 12 in the Town of Berlin. When the officer attempted to stop the vehicle, it sped away. The officer was able to ide ntify the name and address of the vehicle’s registered owner from its license plate. After fur ther investigation, several officers went to the home of the owner’s boyfriend, where they observed the vehicle in the driveway.

An officer knocked on the door and spoke with defen dant’s mother, informing her that they were looking for defendant. She told them tha t he was sleeping upstairs. Several officers then entered the residence with mother’s permission . Mother recalled that the police told her that they would go upstairs to get defendant if he did n ot come down. She then called upstairs and told defendant to come down or the police would “co me and get him.” Id. at *1. The investigating officer testified, in contrast, that he merely asked if defendant’s mother would “mind going upstairs and waking him and having him come [downstairs].” Defendant appeared, was recognized as the driver from the earlier pursu it, showed signs of intoxication and was

arrested for DUI.

Defendant moved to suppress the DUI evidence on the ground that the police entry into the home was nonconsensual and that his appearance was coerced. The trial court denied the motion, finding that the mother consented to the en try. The court also found that, although defendant’s mother testified that the police told h er that if defendant did not come down “they would go up and get him,” there was no evidence she actually conveyed such a message to defendant. We affirmed the court’s finding that th e entry was consensual. Id. at *2. We reversed, however, on the issue of coercion, findin g that the court’s reported lack of evidence about what defendant was told was erroneous—given t hat mother specifically testified that she told defendant that the police would go upstairs an d “get” him if he refused to appear, and that2

her version of events was corroborated by defendant ’s girlfriend. Id. at *2-3. We noted that, on remand, the trial court could determine whether the officers’ testimony denying any threat of force was more or less credible than the contrary t estimony of defendant’s mother and girlfriend.

Id. at *3.

In April 2011, following our remand, the trial cou rt issued a written decision on the renewed motion to suppress. Having reviewed the re cord and arguments, the court found that the officers’ testimony was more consistent and cre dible than that of defendant’s mother. The court found that the police asked to speak with def endant, but that mother told him that they would go up and get him if he did not come down. B ased on those findings, the court concluded

that defendant’s decision to come downstairs was not the product of coercion by the police. Accordingly, the court reaffirmed its earlier rulin g denying the motion to suppress, and reaffirmed the finding of guilt on all counts. Thi s appeal followed.

On appeal, defendant does not challenge the court’ s factual finding, but argues instead that police coercion should be found from the total ity of the circumstances, and in particular from the presence of several police officers in and around defendant’s home and police cruisers in the driveway, suggesting that “he had no choice given this overwhelming show of force.” The argument is unpersuasive. Absent any overt physica l force, implied threats, intimidating verbal commands or other coercive tactics, the mere presen ce of multiple officers does not support a finding of forcible police action. See, e.g., Unit ed States v. Thomas, 430 F.3d 274, 280 (6th Cir. 2006) (holding that presence of five officers and f our police vehicles at defendant’s home did not establish that encounter was “inherently coercive”) ; United States v. Zamoran-Coronel, 231 F.3d 466, 469 (8th Cir. 2000) (holding that “the mere pr esence of [four] police officers in a confined space [did] not necessarily exert coercion”); State v. Hunt, 150 Vt. 483, 496 (1988) (holding that defendant’s will was not overborne from presence of three officers who asked defendant to accompany them to police station for questioning “i n a manner neither threatening nor compelling”). Moreover, defendant was not, as he s uggests, entitled to resist officers lawfully in his house with probable cause to arrest him once he was recognized.

Defendant’s reliance on United States v. Maenz, 872 F.2d 1444 (10th Cir. 1989) is misplaced. There, the court held that the defendan t did not voluntarily exit his home where it was surrounded by police officers, the FBI, and a S WAT team who pointed rifles at the home

and ordered defendant to exit. Id. at 1450-51. No thing of that nature occurred here. Accordingly, we find no basis to disturb the trial court ruling.

Affirmed.

BY THE COURT:

_______________________________________ Paul L. Reiber, Chief Justice

_______________________________________ Brian L. Burgess, Associate Justice

_______________________________________ Beth Robinson, Associate Justice3