State v. Alexander
Annotate this Case
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. 88-057
State of Vermont Supreme Court
v. On Appeal from
District Court of Vermont,
Timothy J. Alexander Unit No. 1, Windham Circuit
September Term, 1990
Robert Grussing III, J.
Gary S. Kessler, Supervising Appellate Prosecutor, Montpelier, for
plaintiff-appellee
Walter M. Morris, Jr., Defender General, and Anna Saxman and William A.
Nelson, Appellate Defenders, Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
MORSE, J. Defendant appeals his conviction, after court trial, for
driving under the influence of intoxicating liquor. He moved to suppress
evidence obtained when he was stopped for running a police roadblock,
claiming that the roadblock was illegal under State v. Martin, 145 Vt. 562,
496 A.2d 442 (1985). The trial court denied the motion because defendant
had "abandoned the protection" of the fourth amendment by driving through
the roadblock, and because the police had probable cause to arrest
defendant for failing to stop. We hold defendant's motion was improperly
denied and reverse and remand.
On the night of May 31, 1986, the Vernon sheriff's department
established a roadblock, in accord with its department policy, to screen
northbound cars for motorists driving under the influence. At least two
cruisers were parked at the roadblock with their blue lights flashing. The
roadblock was preceded by a thirty-inch, luminous sign reading "DWI
roadcheck" three hundred feet before the stop. The officers at the stop
were in uniform and wearing reflectorized vests, and each officer carried an
illuminated flashlight with a directional cone.
At about 1:30 a.m., as Deputy Tarbox was standing in the middle of the
road to flag oncoming traffic, a red pickup truck appeared at the roadblock.
As the deputy signalled the truck, it jerked to a stop, then began to move
again. Deputy Tarbox moved out of the way, and the truck stopped again,
then traveled past the stop. Because defendant failed to stop at the
roadblock, Deputy Weyant got into his cruiser and followed the truck for
about a quarter mile, where it pulled over at the first intersection. As
Deputy Weyant asked defendant for his license, he smelled alcohol and asked
defendant whether he had had anything to drink. Defendant admitted that he
had had "two drinks" and, upon exiting the vehicle, was unable to perform
routine dexterity tests. He was taken to the police station and charged
with driving under the influence. There was no evidence that Officer Weyant
stopped defendant because of erratic driving or other suspicion of driving
under the influence of alcohol. The parties agreed, and the trial court
found, that the officer pursued and stopped defendant because he failed to
stop at the roadblock.
The trial court was correct that the authorities had ample cause to
stop defendant after he proceeded through the roadblock. 23 V.S.A. {
1012(a) makes it a crime for a motorist not to "promptly and carefully stop
when signalled to stop by an enforcement officer wearing insignia which
identifies the officer." We are concerned here, however, with the issue of
whether defendant "abandoned" his challenge to the legality of the
roadblock. We hold that he did not.
It is well established in Vermont that a defendant who believes he is
illegally detained may not resort to self-help. In re Provencher, 127 Vt.
558, 562, 255 A.2d 180, 183 (1969) (escape from jail not justified where
detention illegal); see also State v. Peters, 141 Vt. 341, 347, 450 A.2d 332, 335 (1982) (assault on a law enforcement officer in course of arrest,
pursuant to a warrant subsequently determined to be invalid, not
justified). Government by rule of law "requires that we recognize its
authority, and recognize likewise our duty to challenge its application by
resort to proper judicial proceedings, not self-help." Provencher, 127 Vt.
at 562, 255 A.2d at 183. Thus, if a driver runs an illegal police roadblock
when reasonably signalled by the police to stop, he commits a crime.
That an individual may not resort to self-help and may be prosecuted
for forceful self-help, however, is an issue distinct from the individual's
right to challenge the validity of the detention. Thus, an individual
instructed by a uniformed police officer to stop must do so. A person who
instead flees may be punished for fleeing but does not "abandon" the right
to challenge, in defense of a different crime, the legality of the initial
stop. Although government by law requires that we recognize authority, it
does not require that we be subjected to all consequences of baseless stops
without legal recourse. Assuming a stop is illegal, the question is whether
"the evidence to which [defendant objects] has been
come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the
primary taint."
State v. Emilo, 144 Vt. 477, 483, 479 A.2d 169, 172 (1984) (quoting Wong Sun
v. United States, 371 U.S. 471, 488 (1963)).
Emilo involved the suppression of evidence obtained after an illegal
stop. The defendant was driving on an isolated road at 3 a.m. when a police
officer, who had just investigated a reported robbery and concluded that the
store's alarm system had malfunctioned, noticed the car in which the
defendant was driving. The car had no front license plate and a
Massachusetts plate in back. The officer testified that there was nothing
to tie the car to the reported robbery, that he did not believe the
defendant was attempting to elude him, and that he stopped the car simply
based on a "hunch." Once the officer had stopped the car, he obtained the
evidence that led to conviction on the charge of driving without consent of
the owner. We held that the evidence "had been come at by exploitation" of
unlawful police conduct and should have been suppressed.
In this case, there was no evidence that Officer Weyant suspected
defendant was driving under the influence. The sole reason Deputy Weyant
finally stopped defendant was for failure to stop at the roadblock. Because
defendant's failure to stop violated { 1012, the deputy's actions were
legal. The stop, however, would not have occurred but for the roadblock.
Nevertheless, merely because the roadblock caused the stop in a "but for"
sense is not sufficient to require suppression of the fruits of the stop.
Brown v. Illinois, 422 U.S. 590, 603 (1975). Rather, we must analyze whether
defendant's violating { 1012 was an intervening cause that broke the causal
chain between the assertedly illegal roadblock and the deputy's stop. Id.
at 603-04.
Several federal courts have held that defendant's commission of a
criminal act in the course of an illegal arrest or search may be sufficient
to dissipate the taint of illegality. United States v. Bailey, 691 F.2d 1009, 1017-18 (11th Cir. 1982) (defendant's flight from and exchange of
blows with officers illegally arresting him were a "new, distinct crime" and
evidence seized pursuant to arrest for that crime need not be suppressed);
see also United States v. King, 724 F.2d 253, 256 (lst Cir. 1984) (shooting
officer conducting an illegal search); United States v. Garcia, 516 F.2d 318, 319-20 (9th Cir. 1975) (high speed chase from illegal checkpoint);
United States v. Nooks, 466 F.2d 1283, 1287-88 (5th Cir. 1971) (high speed
chase and shooting at officer attempting an illegal arrest). Strong policy
reasons support treating these actions as "distinct" crimes subject to
prosecution despite their close causal nexus to illegal police conduct. See
Bailey, 691 F.2d at 1017 ("extending the fruits doctrine to immunize a
defendant from arrest for new crimes gives a defendant an intolerable carte
blanche to commit further criminal acts so long as they are sufficiently
connected to the chain of causation started by the police misconduct"). And
some of these crimes will be sufficiently serious to allow searches and
arrests that will provide evidence that would have been suppressed under the
primary illegal search or arrest.
If { 1012 is treated as a "distinct" crime, however, the goal of the
exclusionary rule, controlling police misconduct, will not be served. See
State v. Ceccolini, 435 U.S. 268, 274 (causal connection determined by
looking at fundamental tenets of exclusionary rule). Police could be less
fastidious in establishing roadblocks or could even make random stops of
drivers on less than probable cause, and when drivers failed, for whatever
reason, to stop, any evidence gathered at the illegal stop could not be
suppressed. The exclusionary rule requires more, and the state cannot pass
a statute that effectively eviscerates a constitutional doctrine by "curing"
an illegal police action.
The roadblock must be analyzed for legality. If the roadblock was
legal, then the evidence of intoxication resulted from valid police conduct
and need not be suppressed. If the roadblock was illegal, defendant did not
forfeit his fourth amendment right by violating { 1012(a), and the evidence
must be suppressed and the DUI charge dismissed.
Because the trial court did not reach the question of legality of the
roadblock, we remand for adjudication of that issue.
Reversed and remanded.
For the Court:
Associate Justice
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Dissenting
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. 88-057
State of Vermont Supreme Court
v. On Appeal from
District Court of Vermont,
Timothy J. Alexander Unit No. 1, Windham Circuit
September Term, 1990
Robert Grussing III, J.
Gary S. Kessler, Supervising Appellate Prosecutor, Montpelier, for
plaintiff-appellee
Walter M. Morris, Jr., Defender General, and Anna Saxman and William A.
Nelson, Appellate Defenders, Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
PECK, J., dissenting. There is no need to reprise the facts and
circumstances preceding and surrounding defendant's arrest for DUI. For
purposes of this dissent, I am in full agreement with the statement of facts
as outlined in the majority opinion. I disagree, however, with the
conclusions of law drawn from those facts.
I will bypass comments relating to the legality of the roadblock at
this point and return hereafter to that issue. For the moment, I will say
only that I believe its legality or illegality is irrelevant.
This is not a case like State v. Emilo, 144 Vt. 477, 479 A.2d 169,
(1984), in which an officer stopped a car without the slightest reason to
suspect that any motor vehicle offense was being or had been committed.
The officer himself testified that the only reason for the stop was a hunch,
generated by no more than the fact that he came on the defendant's vehicle
late at night, traveling on a road sparsely traveled at that hour. Id. at
481, 479 A.2d at 171. There was no erratic driving, speeding, careless and
negligent operation, refusal to stop when signaled, or any of the other more
common idicia of a moving violation.
In the matter before us here, the facts as described in the majority
opinion, leave no possible doubt that the deputies had probable cause to
pursue and stop the vehicle being driven by defendant; in fact, they were
eyewitnesses to an offense in progress -- actually being committed in their
presence.
Regardless of the legality of the roadblock, the officers also
witnessed defendant's refusal to stop when signaled to do so by proper
authorities, identifiable as such. Under ordinary circumstances, such a
refusal is a separate offense, per se, in violation of 23 V.S.A. { 1021(a).
Thus, defendant did more, as witnessed by two officers, than run a road-
block; he failed to stop when signaled to do so, which is a separate and
distinct offense, having no necessary relationship to DUI checkpoints.
The majority refers to State v. Peters, 141 Vt. 341, 450 A.2d 332
(1982) but has conveniently overlooked its essential importance. The
decision expressly abandons the preceding common law rule which recognized a
right to resist an improper arrest, and now requires submittal to an
arresting officer and a resort instead to the courts for relief. In
Peters, the defendant assaulted a police officer who was attempting to
place him under arrest; the former asserted the arrest was illegal because
of a claimed defective bench warrant and, therefore, he was justified in
seeking to escape arrest. This case involves an essentially similar claim.
There is more than one way to resist arrest; one is to attack the officer(s)
physically, as did the defendant in Peters, another is by flight, and still
another, in certain circumstances, may be a necessity defense, see, e.g.,
State v. Squires, 147 Vt. 430, 519 A.2d 1154 (1986). Quoting with approval
from Miller v. State, 462 P.2d 421, 427 (Alaska, 1969), this Court stated:
We feel that the legality of a peaceful arrest should be
determined by courts of law. . . . [O]ne believing
himself unlawfully arrested should submit to the officer
and thereafter seek his legal remedies in court.
Peters, 141 Vt. at 345, 450 A.2d at 334.
The underlying principle in In re Provencher, 127 Vt. 558, 562, 255 A.2d 180, 183 (1969), is stated to be:
[W]e are governed by rule of law [which] requires that
we recognize its authority, and recognize likewise our
duty to challenge its application by resort to proper
judicial proceedings, not self-help.
Finally, in Peters, 141 Vt. at 346, 450 A.2d at 335, we quoted the
following from State v. Koonce, 89 N.J. Super. 169, 183, 214 A.2d 428, 435-
36 (1965) (emphasis added):
The right or wrong of an arrest is often a matter of
close debate as to which even lawyers and judges may
differ. In this era of constantly expanding legal
protections of the rights of the accused in criminal
proceedings, one deeming himself illegally arrested to
submit peaceably to arrest by a police officer, and to
take recourse in his legal remedies for regaining his
liberty and defending the ensuing prosecution against
him.
I note, too, that in Miller, 462 P.2d at 427, the Alaska court
recognizes the good faith of an officer who mistakenly performs an arrest,
as a significant factor in resolving cases like the one now before us. I
have not heard anyone suggest, regardless of the legality or illegality of
the roadblock with which we are concerned here, that the officers at the
site acted in the utmost good faith, and in reliance on a policy established
by their lawful superiors. It is unfair and unreasonable to expect the
officers at the checkpoint, particularly those still at the level of
"infantry in the field," were in any position to recognize or make educated
decisions on fine points "as to which even lawyers and judges may differ."
The result reached by the majority is neither legally necessary nor
inevitable. On the other hand, it weakens the strong impact of State v.
Martin, 145 Vt., 562, 496 A.2d 442 (1985), and State v. Record, 150 Vt. 84,
548 A.2d 422 (1988), in combating the killing epidemic of drunk drivers
which continues to ravage Vermont and the nation.
It seems that every time the Legislature tightens the laws against
these criminals, this Court counters with decisions that impede and hamper
legitimate law enforcement, threaten the constitutional rights of the
people to life and safety, and open new avenues of escape based not on the
merits, but on the questionable application of freshly invented legal
technicalities, typified by such recent insults to justice as, inter alia,
State v. Kirchoff, ___ Vt. ___, 587 A.2d 988 (1991) and State v. Brunell,
150 Vt. 388, 554 A.2d 242 (1988).
This matter should be affirmed in the interests of the safety and
welfare of every citizen in this state, and those who may be visitors within
its environs. We should be more concerned with protecting the people
against the plague of criminality than with devising new ways of shielding
wrongdoers from the consequences of their wilful or irresponsible conduct.
I would affirm and demonstrate one way to accomplish that desirable and
just goal.
_______________________________
Associate Justice
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