State v. Beresford

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No. 88-248

State of Vermont Supreme Court

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

Special January Term, 1990

Alden T. Bryan, J. (suppression hearing)
George T. Costes, J. (trial)

Thomas M. Kelly, Drug Prosecutor, Department of State's Attorneys,
Montpelier, for plaintiff-appellee

Mikell & Mikell, P.C., Burlington, for defendant-appellant

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

GIBSON, J. Defendant appeals from his conviction of possession of a
regulated drug, claiming the court erred in denying his motion to suppress
evidence obtained without consent or warrant from inside a small zipped
shaving kit found at the scene of a traffic accident. We reverse.
On May 22, 1987, defendant and a passenger were driving north on Route
116 at a speed of fifty to sixty miles per hour when defendant lost control
of his pickup truck. The truck overturned and landed on its rooftop off
the the west side of the highway. Shortly after the accident, while state
police were interviewing defendant, a fireman led a police officer to a
shaving kit he had found near the overturned truck. The kit was
approximately twenty to twenty-five feet from the truck, lying beside a
telephone pole that was between the truck and the highway. The kit was
visible from the truck but not the road. Other debris from the truck was
scattered some fifteen feet east of the telephone pole thirty-five to forty
feet from the truck. Without determining whether the shaving kit belonged
to the occupants of the truck, the officer unzipped the kit and found two
plastic baggies containing psychoactive mushrooms. At trial, the officer
testified that he unzipped the kit to "determine if there was anything that
could hurt anybody around the area" and to "check[] for any intoxicants that
were in the bag." Believing that the baggies contained an illegal
substance, the officer presented them to defendant, who initially denied,
but later admitted, owning them.
At the suppression hearing, the court made the following findings:
Well, I find the property was by the pole twenty-five
feet from the car that overturned after the accident,
the Defendant was apparently one of the operators.
There was a simple shaving kit type bag . . . apparently
in no one's custody. . . . There's no showing that the
property was owned by anyone in particular at the time
the officer came upon it. He picked it up, looked
inside. I see no impediment to that. No showing that
the Defendant had any particular expectation of privacy
or that he had any control over it at that point, just
left it there.

At trial, the court found as follows:

The Court will deny the suppression. The bag was
between 20 and 25 feet from the highway and appears to
be on the other side of the pole where it wasn't
visible from the highway by passersby, and the bag was
there and the officer also tried to find out who it was
-- who owned it; looked for identification, looked for
whatever [] might be in it. Might be something harmful
to persons or people or -- and it was investigatory,
investigation taking place by the police officer. . . .

Looked like there is some evidence it belonged to the
defendant and the operator of the vehicle, so we'll
confirm the denial [of] the motion to suppress . . . .
Both at the suppression hearing and at trial, the court appears to have
based denial of defendant's motion on the fact that the bag had been
abandoned, although it is unclear whether either court placed the burden of
establishing abandonment on the State. Assuming the State was obligated to
prove abandonment by a preponderance of the evidence as opposed to some
higher standard, compare United States v. Levasseur, 620 F. Supp. 624, 628
(E.D.N.Y. 1985) (preponderance) with United States v. Abbott, 584 F. Supp. 442, 451 (W.D. Pa. 1984) (clear and convincing), there was insufficient
evidence for either court to conclude that the State had proved
abandonment. Therefore, each court's finding of abandonment was clearly
erroneous. See United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989)
(finding of abandonment is reviewed under a clearly erroneous standard).
Neither court made clear findings as to how the kit came to be located
where it was discovered. It appears, even from the State's description of
the accident scene, that it could have ended up at its final location either
by being ejected from the truck as a result of the accident or by being
placed there by defendant or some other person following the accident. The
kit was in plain view of the truck and closer to it than the other accident
debris. Neither of the occupants of the truck had made any attempt to leave
the scene of the accident and there is no evidence whatsoever that defendant
placed the kit by the pole in order to secrete it or otherwise abandon it.
The State's speculation on the impossibility of the kit winding up where it
did cannot satisfy its burden of proof. The finding of abandonment was
clearly erroneous.
This case is distinguishable from State v. Kerr, 143 Vt. 597, 608-09,
470 A.2d 670, 676 (1983), where, upon the approach of a border agent, the
defendant dropped a bag he was carrying and then walked away from it after
talking to the agent. Here, considering that the kit was located in plain
view twenty to twenty-five feet from an overturned truck that had been in a
high-speed accident, the officer should reasonably have concluded that the
kit most likely belonged to one of the occupants of the truck, neither of
whom had made any attempt to leave the scene of the accident. Compare
Childers v. State, 158 Ga. App. 613, 615, 281 S.E.2d 349, 351 (1981) (drugs
found in woman's purse suppressed where presence of purse in room should
have alerted officer to fact that purse belonged to only woman present) with
Mitchell v. State, 423 So. 2d 904, 905-06 (Ala. Crim. App. 1982) (no
suppression of evidence where officer saw defendant place zipped shaving kit
containing drugs on ground in open woods and then depart).
The court should have granted the motion to suppress because, in the
absence of abandonment, the officer had no right to open the kit without
the owner's consent. See Childers, 158 Ga. App. at 615, 281 S.E.2d at 351-
52. In light of our determination that the State has not proved
abandonment, we need not address defendant's argument concerning suppression
of his statement admitting that he owned the kit.
Reversed and remanded.

FOR THE COURT:

___________________________________________
Associate Justice

-------------------------------------------------------------------------------

DISSENTING

No. 88-248

State of Vermont Supreme Court

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

Special January Term, 1990

Alden T. Bryan, J. (suppression hearing)
George T. Costes, J. (trial)

Thomas M. Kelly, Drug Prosecutor, Department of State's Attorneys,
Montpelier, for plaintiff-appellee

Mikell & Mikell, P.C., Burlington, for defendant-appellant

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

PECK, J., dissenting. In its customary zeal to excuse drug
traffickers and abusers from the consequences of their crimes, which
recently attained a new and lamentable high in State v. Kirchoff, 2 Vt. L.W.
1 (1991), the majority employs a rationale that glosses over the real key
factor: the defendant's initial denial that he owned the "kit" that
contained the contraband.
The majority contends that the prosecution made no showing that
defendant had "abandoned" the kit. There are two clear answers to this
contention. On the one hand, a person cannot abandon an item he does not
own. It is undisputed that, initially, defendant claimed expressly that he
did not own the kit. If, indeed, that had been the case, the fact that the
officer opened the kit before confronting defendant would be entirely
irrelevant. It would be clear that some unknown and unidentifiable person
must have abandoned it.
On the other hand, assuming, as appears to have been the case here,
that the kit had belonged to defendant, the situation is virtually on all
fours with State v. Kerr, 143 Vt. 597, 608-09, 470 A.2d 670, 676 (1983), in
which an investigating officer saw the defendant drop the plastic bag he had
been carrying and walk away from it.
I submit there is more than one way, at least in the figurative sense,
to "walk away" from something; another way, certainly, is a disclaimer of
ownership of, or interest in, a given item of property. In this case,
defendant concedes that the kit lay "in plain view," and yet he denied
ownership. It is at this point that the question of abandonment must be
answered. The officer could have opened the kit with impunity if he had
waited for the moment defendant denied ownership. Since, by doing so,
however, he himself established an abandonment, it is hyper-technical in the
extreme to attach any relevance at all to the earlier point when the kit was
opened. The denial constituted an abandonment; what defendant may have said
or done thereafter, and what the officer may have done before confronting
the defendant, are both wholly irrelevant once abandonment was so clearly
established. If the defendant in Kerr had returned after the officer had
inspected the bag, and only then claimed ownership, the result would have
been no different.
The State's burden of proof to show abandonment was satisfied as
clearly and as simply as it could possibly be done. Moreover, it was accom-
plished through the defendant's own statement that he did not own the kit,
and through his conduct, which showed, as the court found, that he had no
"particular expectation of privacy or that he had any control over it at
that point, [he] just left it there." And this notwithstanding, the kit lay
"in plain sight."
One of the citations on which the majority appears to rely as an
authority for its decision, Childers v. State, 158 Ga. App. 613, 615, 281 S.E.2d 349, 351 (1981), is about as far removed from the case before us as
is possible. In that case, a woman's purse, found within the limited
confines of a room, might logically belong to the only woman present; it lay
in "close proximity" to where the woman was seated, and was the only one of
its kind in the room. Moreover, unlike the defendant in this case, the
woman acknowledged from the outset, and never denied, ownership of the
purse. In the matter before us, the kit was discovered out of doors, a con-
siderable area, one must admit. There was nothing characteristic about it
to associate it with anyone, and it was located in a spot, well removed from
other accident debris, where it is most unlikely, if not absolutely impos-
sible, that it would have reached if it had been ejected from the truck
during the accident. Regardless, these considerations too became
irrelevant once defendant disclaimed ownership. The police are not
required to obtain anyone's permission to open a container which has been
abandoned.
The majority has missed the one simple but conclusive point which
establishes the defendant's abandonment of the kit, and should have required
an affirmance. Notwithstanding defendant's lack-of-interest conduct and his
express disclaimer, the majority succeeds, by a hyper-technicality, in
luring back the "moving finger" of Edward Fitzgerald's rendering of the
Rubaiyat, by after-the-fact reasoning.
The moving finger writes, and having writ,
Moves on: nor all your Piety nor Wit
Shall lure it back to cancel half a line,
Nor all your tears wash out a Word of it.

What piety, wit and tears could not accomplish, the majority has done by the
simple expedient of rewriting the script after the performance has ended and
the curtain rung down.
It is remarkable when admission of guilt produces a reversal. The
drug-law violators score again with a reversal which should have been an
affirmance.

________________________________
Louis P. Peck, Associate Justice

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