State v. Barber

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. 88-246


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont
                                             Unit No. 2, Chittenden Circuit

Jeffrey Barber                               April Term, 1990


Alden T. Bryan, J.

William Sorrell, Chittenden County State's Attorney, Burlington, and Gary
  S. Kessler, Resource Attorney, and Allison Hastings, Student Intern,
  State's Attorneys and Sheriffs Department, Montpelier, for plaintiff-
  appellee

Walter M. Morris, Jr., Defender General, and Henry Hinton and William A.
  Nelson, Appellate Defenders, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     DOOLEY, J.  Defendant, Jeffrey Barber, appeals his conviction by the
district court of driving with license suspended in violation of 23 V.S.A. {
674 and of leaving the scene of an accident in violation of 23 V.S.A. {
1128.  We remand for further proceedings.
     On December 3, 1987, the Burlington police received a call from a
Burlington parking meter checker reporting a motor vehicle accident she
observed at the corner of College and Church Streets in Burlington.  A
Burlington police officer responded and learned that two Shelburne police
officers were following one of the vehicles.  The two Shelburne police
officers also witnessed the accident, and when the vehicle driven by
defendant left the scene of the accident without stopping, gave chase in
their unmarked vehicle with the blue lights activated.  During the chase,
defendant ran at least two stop lights before finally stopping at the corner
of Park and Battery Streets.  The Shelburne police went to defendant's
vehicle and ordered him out of it.  The Burlington police officer arrived on
the scene soon after the defendant emerged from the vehicle, and, after
conferring with the Shelburne police officers, arrested him.  Defendant was
charged with driving with a suspended license and leaving the scene of an
accident.
     Defendant moved to dismiss the prosecutions on the ground that he was
stopped and arrested by officers who were outside of their territorial
jurisdiction.  The trial court denied the motion because the formal arrest
was made by the Burlington police officer.  Defendant waived his right to a
jury trial, and the court subsequently found him guilty of both offenses.
     Defendant appeals, claiming that the trial court erred by refusing to
dismiss these prosecutions because the State's evidence was the fruit of an
unlawful motor vehicle stop made by municipal police officers who were
outside their jurisdiction.  Defendant is correct that the Shelburne police
officers were acting beyond their statutory authority when they stopped him
in Burlington.  We have held that local police officers may not detain and
arrest a suspect without a warrant outside of their territorial juris-
dictions unless special circumstances are present. (FN1) State v. LeBlanc, 149
Vt. 141, 142, 540 A.2d 1037, 1038 (1987); State v. Hart, 149 Vt. 104, 106,
539 A.2d 551, 552 (1987).  The State attempts to distinguish LeBlanc and
Hart on the basis that in those cases, the officer who was outside his
jurisdiction made both the stop and arrest, whereas here, the Shelburne
police merely stopped the defendant while the Burlington Police effectuated
the actual arrest.  We cannot square this rationale with Hart.
     In Hart, a Bethel town constable observed a car in Royalton traveling
very slowly and failing to stop at a stop sign.  The constable stopped the
vehicle and noticed that the operator smelled of alcohol.  The operator
failed to walk a straight line on request, and the constable radioed the
Vermont State Police for assistance.  A state trooper arrived on the scene
and, after conducting several tests, cited the operator for DUI.  We held
that any evidence stemming from the stop must be suppressed because the
Bethel constable was acting beyond his authority when he stopped and
detained the operator of the vehicle, even though the state trooper issued
the actual citation.  149 Vt. at 105-07, 539 A.2d  at 552-53.  The facts of
Hart are nearly identical to those in the present case.  Here, the Shelburne
police officers were acting outside their territorial jurisdiction when they
stopped and detained the defendant.  Under Hart, it makes little difference
who makes the formal arrest after the detention; the damage has already been
done.
     There are two notable exceptions to this general rule which permit
peace officers to make a valid warrantless arrest outside their territorial
jurisdiction.  The first exception is when the police officer is in "fresh
pursuit" of a suspect and crosses a municipal boundary from the jurisdiction
in which the officer is authorized to act into a jurisdiction where the stop
and arrest is made.  See State v. Griffin, 152 Vt. 309, 311, 565 A.2d 1340,
1341 (1989).   This exception does not apply in this case.
     The second exception to the general rule is where the detention and/or
arrest of a suspect by a police officer acting outside the territorial
jurisdiction may be justified as a citizen's arrest.  See Hart, 149 Vt. at
108-09, 539 A.2d  at 554.  Private citizens are empowered to arrest fellow
citizens for misdemeanors committed in their presence if the misdemeanor
constituted a breach of the peace.  Id.; see also Restatement (Second) of
Torts { 119 (1965).  Likewise, the detention of a person by a police officer
acting outside his jurisdiction is permissible as long as the officer does
not use the color of the office to gain access to evidence not otherwise
available to the private citizen.  State v. Tamburri, 463 So. 2d 489, 491
(Fla. Dist. Ct. App. 1985).
     Our cases provide some guidance on what facts will give rise to a
breach of the peace.  In Hart, we held that driving very slowly and failing
to stop at a stop sign is not a breach of the peace.  Similarly, in LeBlanc,
we held that operating a motorcycle without a rear registration plate and in
such a way as to weave across the double centerline of the road did not
constitute a breach of the peace.  In State v. Sanderson, 123 Vt. 214, 216,
185 A.2d 730, 731 (1962), however, we held that the public peace may be
transgressed by the reckless, offensive operation of a motor vehicle in such
a manner as to endanger the safety and security of persons lawfully on or
near the highway.  In Sanderson, defendant departed from a driveway at a
high rate of speed, screeching the tires.  In addition, the vehicle was not
equipped with a muffler.  We held that these facts justified the conclusion
that there was an offense against the public safety, peace, and good order.
     In this case, the two Shelburne police officers witnessed defendant's
vehicle hit a stationary vehicle and pull off its bumper on a busy city
street with numerous other persons around.  Defendant slowed down for a
moment and then speeded up to avoid being apprehended.  During the ensuing
chase, defendant weaved in and out of traffic and ran at least two stop
lights.  Unlike the circumstances in LeBlanc and Hart, the court could find
that defendant's actions rose to Sanderson's level of reckless and offensive
operation of a motor vehicle which clearly endangered the safety and
security of others.  If there was a breach of the peace, the Shelburne
police officers were justified in pursuing and stopping defendant and
detaining him until the Burlington police arrived on the scene to take
charge.  With the exception of flashing its blue lights in an unmarked car,
the Shelburne police did nothing that a private citizen could not have done
in similar circumstances.  We do not believe that flashing blue lights
turned a valid citizen's action into an abuse of police authority.
     Although the court could find a breach of the peace on the evidence
presented here, it never reached the issue.  Furthermore, we are not
persuaded that the evidence is so overwhelming as to show a breach of the
peace as a matter of law.  Compare State v. Griffin, 152 Vt. at 311, 565 A.2d  at 1341 (evidence of fresh pursuit undisputed and clear so that Supreme
Court could rely on this ground to validate arrest even though not found by
trial court).  We do not, however, automatically reverse the conviction.
Rather, we remand for a new hearing to consider the breach of the peace
issue.  See, e.g., State v. Walls, 294 S.E.2d 272, 276 (W. Va. 1982) (where
trial court failed to hold preliminary suppression hearing to determine
admissibility of evidence, the proper procedure is to remand case to conduct
such a hearing; depending on trial court's findings at the hearing,
conviction is either affirmed or reversed).
     We note, however, that unlike LeBlanc and Hart, the evidence against
defendant does not rest solely on the stop and arrest which is challenged by
the defendant.  Numerous individuals, including the Shelburne police and a
Burlington meter checker, witnessed the accident and defendant leaving the
scene.  Some witnesses provided a description of the vehicle and of the
driver.  There was testimony that the Burlington meter checker recorded the
license plate number of defendant's vehicle at the scene of the accident.
Hence, even if the stop is eventually found unlawful, the state may have
sufficient independent evidence to obtain a conviction.  Therefore, if the
stop and arrest is found unlawful, the conviction should be vacated and
defendant retried without the suppressed evidence.  If, on the other hand,
the stop and arrest was lawful, the conviction remains.
     Remanded for proceedings consistent with this opinion.


                                        FOR THE COURT:




                                        Associate Justice





FN1.    Effective January 26, 1988, 24 V.S.A. { 1935 was amended to provide
that "[t]he powers granted to police officers under this section may be
exercised statewide."  Since the events in question took place before this
amendment became effective, the amendment has no effect on this case.