State v. Platt

   NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
   as well as formal revision before publication in the Vermont Reports.
   Readers are requested to notify the Reporter of Decisions, Vermont Supreme
   Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
   that corrections may be made before this opinion goes to press.
 
 
                                   No. 89-130
 
 
   State of Vermont                             Supreme Court
 
        v.                                      On Appeal from
                                                District Court of Vermont,
   David Platt, Jr.                             Unit No. 1, Windham Circuit
 
                                                October Term, 1989
 
   Robert Grussing III, J.
 
   Dan M. Davis, Windham County State's Attorney, and Karen E. Russell, Deputy
       State's Attorney, Brattleboro, for plaintiff-appellant
 
   Hedy A. Harris, Brattleboro, and Kenneth J. Fishman of Bailey & Fishman,
      Boston, Massachusetts, for defendant-appellee
 
 
   PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
 
        GIBSON, J.   Appellant State of Vermont, by interlocutory appeal,
   seeks reversal of a pretrial order suppressing evidence obtained from
   defendant's automobile, which had been seized without a warrant pursuant to
   a murder investigation.  We reverse and remand the case to the trial court
   for further proceedings.
                                       I.
        In February of 1987, the Vermont state police became involved in the
   investigation of a homicide when the New Hampshire state police, who had
   found an unidentified body in a rest area in that state, linked the victim
   to a residence in Vermont.  Based on information supplied by two informants,
   the police suspected that defendant and another individual had committed the
   homicide.  On March 16, 1987, the two suspects, having learned of police
   suspicions, left Vermont and headed for New York.  The police searched
   defendant's room that same day with the consent of his landlord, and on the
   three subsequent days pursuant to two warrants.  The second warrant, issued
   on March 19, was partly predicated on new information provided by another
   informant, who, after previous denials, confessed that he himself had acted
   as a lookout while defendant and another individual committed the crime.
        On that same day, an arrest warrant was issued for defendant and the
   other suspect, and the Vermont police sent out a teletype to other
   jurisdictions, including Massachusetts, requesting that authorities arrest
   the suspects and hold their vehicle.  No warrant was issued for the search
   or seizure of the vehicle.  Having been informed that defendant's car may
   have been left in Greenfield, Massachusetts, the Vermont police telephoned
   the Massachusetts state police on March 20 and asked them to look for the
   car there.
        The Massachusetts police located the car legally parked in a large
   parking lot in an open mall and seized the vehicle without searching it and
   without knowing whether Vermont had a warrant to seize it.  Relying on the
   fact that Massachusetts law permitted them to seize a vehicle without a
   warrant if there were probable cause that it was connected to a homicide,
   the police seized defendant's car based solely on the assertion by the
   Vermont police that it could contain evidence of a homicide.  The car was
   transported to Brattleboro, where, on March 24, the Vermont police obtained
   a search warrant and then proceeded to search the car for the first time.
   Meanwhile, also on March 24, the two suspects were arrested in New York
   City.
        Defendant was arraigned on April 14, 1987 on a charge of first-degree
   murder.  On December 28, 1988, after an evidentiary hearing on pretrial
   motions, the district court granted defendant's motion to suppress evidence
   seized from the car.  The court concluded that a warrantless seizure of an
   automobile required both probable cause and exigent circumstances, and that
   exigent circumstances were not present in the instant case; accordingly, the
   court ordered that all evidence obtained from the subsequent search be
   suppressed as "tainted fruit of the poisonous tree."  The State appeals from
   this order, claiming that (1) the warrantless seizure of the car was valid
   because the defendant had abandoned the car, (2) the warrantless seizure was
   proper under the "automobile exception," and (3) the search of the car
   pursuant to warrant was valid because the warrant was based on information
   wholly independent of any evidence that might have been illegally seized.
        We conclude that, although the evidence does not support a finding of
   abandonment, the warrantless seizure and subsequent authorized search of
   defendant's car were proper under both the United States and the Vermont
   Constitutions; accordingly, evidence obtained as a result thereof is
   admissible at defendant's trial.
                                       II.
        Chapter I, Article 11 of the Vermont Constitution provides:
               That the people have a right to hold themselves, their
             houses, papers, and possessions, free from search or
             seizure; and therefore warrants, without oath or affirm-
             ation first made, affording sufficient foundation for
             them, and whereby by any officer or messenger may be
             commanded or required to search suspected places, or to
             seize any person or persons, his, her or their property,
             not particularly described, are contrary to that right,
             and ought not to be granted.
Although Article 11 generally requires that a warrant be obtained before an
official search or seizure, "it does not contemplate an absolute prohibition
on warrantless searches and seizures."  State v. Jewett, 148 Vt. 324, 328,
532 A.2d 958, 960 (1986); see also State v. Record, 150 Vt. 84, 85, 548 A.2d 422, 423 (1988) (Vermont Constitution forbids only unreasonable searches and
seizures -- the word "unreasonable" is implicit in Article 11).  For
instance, in State v. Badger, 141 Vt. 430, 454-55, 450 A.2d 336, 350 (1982),
this Court upheld the warrantless seizure of bloodstained shoes from a
murder suspect where the police employed the least restrictive method to
obtain incriminating evidence that was openly displayed to the public and
vulnerable to easy destruction.
  We have yet to consider the "automobile exception" to the warrant
requirement under Article 11 of the Vermont Constitution.  Our previous
decisions addressing the "automobile exception" under the Fourth Amendment
were based on prior federal precedent and insisted on the presence of
probable cause and exigent circumstances.  See State v. Girouard, 135 Vt.
123, 129-133, 373 A.2d 836, 840-43 (1977); State v. Ibey, 134 Vt. 140, 144-
45, 352 A.2d 691, 694 (1976); State v. Murray, 134 Vt. 115, 118, 353 A.2d 351, 354 (1976).  Early federal case law regarding the "automobile
exception" emphasized the impracticability of obtaining a warrant to search
or seize a vehicle that had been stopped while moving, see, e.g., Carroll v.
United States, 267 U.S. 132, 153 (1925), and, therefore, the cases were
often analyzed under an "exigent circumstances" rationale.  See, e.g., Ramon
v. Cupp, 423 F.2d 248, 249 (9th Cir. 1970) ("Exigencies do not exist when
the vehicle and the suspect are both in police custody.").  Courts readily
found exigent circumstances where the police located a parked car containing
incriminating evidence and either the defendant or his family, friends, or
accomplices had an opportunity to tamper with it.  See, e.g., United States
v. Farnkoff, 535 F.2d 661, 666 (1st Cir. 1976).
     Recent federal case law, however, has emphasized that, in addition to
the ready mobility factor, a second justification for the automobile
exception arises from the reduced expectation of privacy that attaches to
motor vehicles due to their pervasive regulation.  See California v.
Carney, 471 U.S. 386, 391-93 (1985).  Relying on this justification, courts
have upheld warrantless searches and seizures of vehicles based solely on a
showing of probable cause, regardless of whether exigent circumstances
existed.  See United States v. Bagley, 772 F.2d 482, 491 (9th Cir. 1985),
cert. denied, 475 U.S. 1023 (1986); 3 W. LaFave, Search and Seizure, {
7.2(b) at 39 n.65 (1987).  Thus, it is clear that under current inter-
pretation of the Fourth Amendment the warrantless seizure of defendant's
vehicle did not require a finding of exigent circumstances, and the evidence
could not properly be suppressed on that basis.
     In interpreting the Vermont Constitution, however, we may, rather than
follow federal precedent, restrict police conduct to a greater extent than
does case law pursuant to the United States Constitution.  See State v.
Badger, 141 Vt. 430, 449, 450 A.2d 336, 347 (1982).  Indeed, many sister
states continue to require a showing of exigent circumstances in addition to
probable cause before allowing warrantless searches and seizures of
vehicles.  See, e.g., State v. Ritte, 68 Haw. 253, ___, 710 P.2d 1197, 1201
(1985); State v. Kock, 302 Or. 29, 33, 725 P.2d 1285, 1287 (1986).
                                    A.
     We must first determine whether there was probable cause for the
warrantless seizure of defendant's car and its post-seizure search pursuant
to search warrant.  We note at the outset that information leading to the
issuance of the search warrant was the same information relied upon by the
police in seizing defendant's car and was obtained from sources independent
of evidence gathered as a result of the seizure.
     Defendant contends that both the seizure of his car and its subsequent
search were invalid because neither was based on probable cause.  Defendant
further contends that the Vermont police intentionally omitted information
from the affidavit upon which the search warrant was based that, if added,
would have precluded issuance of the warrant by a neutral magistrate.
Although the trial court did not specifically address the issue of whether
the search warrant was founded on probable cause, the court did determine
that, based on the information obtained from the Vermont police, ample
probable cause existed for the Massachusetts police to seize the car.  We
conclude that the information relied upon by the police in seizing the car
and set forth in the affidavit in support of the search warrant constituted
probable cause for the police to seize the car and for a detached magistrate
to issue the warrant to search the car.
     Defendant first claims that probable cause did not exist because there
was no showing that the informant on whom the police relied was credible and
because the basis of the informant's knowledge regarding defendant's car was
unsupported.  We disagree.  In order to support the issuance of a search
warrant, probable cause must be "based upon substantial evidence, which may
be hearsay in whole or part, provided there is a substantial basis for
believing the source of the hearsay to be credible and for believing that
there is a factual basis for the information furnished."   V.R.Cr.P. 41(c).
In State v. Ballou, 148 Vt. 427, 434, 535 A.2d 1280, 1284 (1987), we reit-
erated that affidavits "must be viewed in a common-sense manner and not be
subjected to hypertechnical scrutiny."  The key inquiry in determining
whether probable cause exists is whether the information provided in the
affidavit reveals circumstances from which a person of reasonable caution
would conclude that a crime has been committed and that evidence of the
crime will be found in the place to be searched.  Id. at 433-34, 535 A.2d  at
1284.  In Ballou, we reversed a trial court suppression order despite the
fact that the underlying warrant was supported by an affidavit that did not
provide specific information about the credibility of the four informants.
We held that probable cause existed to issue the warrant, since there were
four informants and the informants' statements were admissions against
penal interest, were based on first-hand observations, and were corroborated
by information independently gained by the police.  Id. at 434-35, 535 A.2d 
at 1284.
     The instant case is similar in several respects.  In the March 24
affidavit, an officer with the Vermont state police averred that a probable
murder victim, whose body was found in New Hampshire, had been living in
Vermont at the time of his death, that two separate, named informants had
linked defendant to the crime, and that a third informant who had admitted
to participating in the crime had stated that the murder victim and his
personal belongings were transported in defendant's car.  As in Ballou,
more than one informant linked defendant to the crime.  Although only one of
the informants directly linked evidence of the murder with defendant's car,
the fact that the body had been transported to another state and that the
informant admitted to participating in the crime constitute sufficient
indicia of truthfulness for a detached magistrate to conclude that evidence
of a crime would more likely than not be found in defendant's car. (FN1)  See
id.; see also State v. Brown, ___ Vt. ___, ___, 562 A.2d 1057, 1058-59
(1989) (standard for probable cause is whether evidence of a crime "more
likely than not" will be found in a particular place; standard met even
though court knew little about informants because their information was
corroborated by each other and by other information previously gained by
police).
     Next, defendant claims that the police affidavit intentionally omitted
the fact that the third informant, who linked evidence of the crime with
defendant's car, twice denied any knowledge of the crime and eventually
implicated himself in the murder.  This argument has little merit.  First,
defendant's contention that the information was intentionally omitted is
mere speculation.  More importantly, the fact that the informant denied
involvement in the crime, but then confessed, particularly in light of the
information previously gathered by the police, could be construed as a
further indication of truthfulness.  See State v. Ballou,  148 Vt. at 435,
535 A.2d  at 1284-85.  In any case, the affidavit would have supported
issuance of the search warrant even if the omitted information had been
inserted.  See Franks v. Delaware, 438 U.S. 154, 171-72 (1978).  Thus, we
conclude that probable cause existed both for the warrantless seizure of
defendant's vehicle and for the subsequent issuance of a warrant to search
the vehicle.
                                    B.
     Having determined that the police had probable cause to seize
defendant's vehicle, we must next determine whether the warrantless seizure
of the vehicle under the circumstances of this case violated Article 11.  We
note initially that the Vermont state police did not learn that defendant's
car might contain evidence of a murder until March 19, 1987, the same day
they notified police in Greenfield, Massachusetts to be on the lookout for
the car and the day before the car was located and seized.  The previous
day, March 18, the Vermont police first learned that defendant's car might
have been left in Greenfield, but they were not certain of that fact or the
exact location of the car.  Therefore, it was reasonable for them to delay
obtaining a warrant pending further investigation.  As the United States
Supreme Court has stated:
            [W]e know of no case or principle that suggests that .
          . . the reasonableness of seizing a car under exigent
          circumstances [is] foreclosed if a warrant was not
          obtained at the first practicable moment. . . . The
          exigency may arise at any time, and the fact that the
          police might have obtained a warrant earlier does not
          negate the possibility of a current situation's
          necessitating prompt police action.
Cardwell v. Lewis, 417 U.S. 583, 595-96 (1974).
     Upon locating defendant's vehicle on March 20, Massachusetts police
seized the vehicle and had it transported to Massachusetts state police
barracks.  At the time the vehicle was seized, neither the Massachusetts nor
the Vermont police knew the whereabouts of defendant or his companion.
Thus, for all they knew, the car and the incriminating evidence could have
been removed by defendant or a friend at any time.  Based on these facts, we
conclude that it was reasonable and proper for the police to seize the
vehicle and hold it to preserve the evidence pending the issuance of a
search warrant.  See State v. Cullor, 315 N.W.2d 808, 813 (Iowa 1982); State
v. Sapiel, 432 A.2d 1262, 1267-68 (Me. 1981); State v. Bean, 120 N.H. 946,
948, 424 A.2d 414, 415-16 (1980).
     By merely seizing defendant's car and holding it for a reasonable
amount of time before obtaining a warrant to search it, the police acted in
the least intrusive manner possible under the circumstances.  Cf. State v.
Brown, 301 Or. 268, 275, 283, 721 P.2d 1357, 1361, 1366 (1986) (on-the-scene
search of mobile vehicle is no greater government intrusion than seizure);
State v. Reid, 38 Wash. App. 203, 208, 687 P.2d 861, 865 (1984) (seizure of
car keys was reasonable intrusion limited in scope to the extent necessary
to secure automobile).  Although the seizure of defendant's car intruded
upon his possessory rights in the car, his privacy rights were not violated
since the car was not searched until the police obtained a warrant.  Cf.
Cardwell, 417 U.S.  at 590, 592-93 (seizure of defendant's car and exam-
ination of car's exterior did not implicate owner's privacy interest).
     Moreover, most courts have concluded that the police may seize a
vehicle containing incriminating evidence rather than post a guard pending
the procurement of a search warrant.  Cullor, 315 N.W.2d at 813-14; Bean,
120 N.H. at 948, 424 A.2d  at 416.  We agree.  Assuming the police had staked
out defendant's car in the parking lot in Greenfield and defendant or an
accomplice had arrived to drive it away before a warrant could be obtained,
the police surely could then have seized the car because of exigent circum-
stances.  Consequently, the immediate seizure of the vehicle was justified
as no more invasive of defendant's rights than if the police had guarded the
car and prevented defendant or an accomplice from removing it.  See Cullor,
315 N.W.2d  at 814; cf. Badger, 141 Vt. at 454, 450 A.2d  at 350 (seizure of
blood-stained shoes far less restrictive than restraining defendant).
Furthermore, the immediate seizure in the instant situation was safer for
defendant, police, and potential bystanders.
     In brief, we hold that Article 11 permits the warrantless seizure of an
unoccupied vehicle for a reasonable amount of time before a warrant can be
obtained where there is probable cause that the car contains evidence of a
crime.  We need not address the issue of whether a warrantless search under
the instant circumstances would have been permissible under Article 11 of
the Vermont Constitution inasmuch as a warrant was obtained before any
search was conducted.  Finally, as noted earlier, we conclude that the
seizure of defendant's car was permissible under the Fourth Amendment of the
United States Constitution.  See California v. Carney, 471 U.S. 386, 390-395
(1985).
     Reversed and remanded.
 
 
 
 
                                        FOR THE COURT:
 
 
 
                                        __________________________________
                                        Associate Justice
 
 
FOOTNOTES:


FN.1     We agree with the trial court that the police were justified in
concluding that forensic evidence of a crime could still be found in the
car or that defendant could have moved evidence of the crime when he left
his residence, despite the fact that the crime had taken place fifteen
months earlier.