State v. Bruno

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. 90-014

State of Vermont Supreme Court

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

Louis Bruno, Jr. September Term, 1990

George T. Costes, J.

William Sorrell, Chittenden County State's Attorney, Burlington, and Gary S.
Kessler, Resource Attorney, Department of State's Attorneys, Montpelier,
for plaintiff-appellee

Blais, Cain, Keller & Fowler, Inc., Burlington, for defendant-appellant

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

ALLEN, C.J. Defendant Louis Bruno, Jr. appeals from his DUI
conviction, alleging error in the trial court's denial of his motion to
suppress. We affirm.
On June 30, 1989, defendant was arrested for DUI and following
arraignment filed a motion to suppress on the ground that there was not a
reasonable basis for the arresting officer's initial stop. At the hearing
on the suppression motion, the arresting officer testified that he had
observed defendant's vehicle drifting in its lane on Pine Street, that
defendant had pulled into a dead end behind Burlington Electric Department
and briefly parked with the headlights off, and that defendant had operated
his vehicle for a period without its headlights on. The officer further
testified that he stopped the vehicle because it had no headlights on. The
defendant denied that his was the car that the arresting officer had
observed drifting on Pine Street and denied operating the vehicle with the
headlights off.
The motion judge was "unable to find" that defendant was drifting in
his lane and whether he had turned his lights back on when he left the
Electric Department premises. The motion judge denied defendant's motion
"solely on the factual basis" that defendant, alone in his car, had pulled
into and briefly parked in an "apparently useless dead end."
At the outset of trial defendant renewed his motion to suppress,
asserting that there was no reasonable basis to stop and that the motion
judge had erred. The error, defendant argued, was that the officer had
limited his subjective basis for stopping defendant to defendant's
headlights being off. Thus, in the absence of a finding that defendant's
headlights were off, defendant's motion must be sustained. To uphold the
stop solely on the basis of defendant's act of pulling into a dead end and
parking was to impermissibly substitute the court's own basis for the
officer's. The trial judge reserved decision and advised objection at the
appropriate time during trial. At the close of the State's case, defendant
again renewed his motion, which the trial judge denied. The trial judge
found that there were sufficient articulable facts to justify the officer's
initial stop of defendant.
A defendant does not have a vested right in an erroneous pretrial
ruling. A ruling on a pretrial motion to suppress "is tentative only, and
subject to revision at trial." State v. Blondin, 128 Vt. 613, 617, 270 A.2d 165, 167 (1970); see State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349, 351
(1985). The rationale behind this holding is manifest. The trial holds
the potential for curing error. In holding that pretrial rulings are not
necessarily binding on the trial court, we stated that
[i]f the rule were otherwise a trial judge would be
tied to obvious errors even when, as here, the earlier
rulings were made by a different judge. The trial judge
would moreover be rendered helpless in the face of
additional evidence or other considerations developing
during trial of the case which might otherwise dictate
a modification or a reversal of the preliminary rulings.

State v. Baldwin, 140 Vt. 501, 514, 438 A.2d 1135, 1142 (1981). In
furtherance of both protection of defendant's rights and promotion of
judicial economy, it is preferable for a trial court, where serious grounds
arise as to the correctness of the pretrial ruling, to receive evidence and
reconsider the ruling. (FN1) Such reconsideration accedes to defendant's
request that the pretrial ruling be reconsidered. Further, such
reconsideration resolves what is often a factual question before a tribunal
which is much more capable of making factual determinations than an
appellate court. See Blondin, 128 Vt. at 616, 270 A.2d at 166 (unavaila-
bility of interlocutory appeal from pretrial suppression motion especially
salutary "where the admissibility of evidence depends on factual conten-
tions, more appropriately resolved during the course of a plenary trial").
In the instant case defendant was saddled with what he thought to be an
erroneous pretrial ruling on his motion to suppress. Defendant renewed his
motion before the trial judge. Having listened to defendant's argument that
the motion judge impermissibly substituted his own basis for the officer's,
and that the officer's basis was not factually shown, the trial judge
stated: "we'll leave it up to you [defendant] to move for your motion
again. The Court would like to hear some testimony first." The trial judge
then heard the direct and cross examination of the arresting officer, (FN2) and
denied defendant's motion to suppress when it was renewed at the close of
the State's case. In his summation, the trial judge reiterated that
"[t]here was articulable facts that the officer did have to suspect a
possible DWI when he first made the initial stop." Dissatisfied with the
ruling on the renewed motion, defendant asserts on appeal that "the trial
court improperly denied Defendant's motion to suppress." Yet beyond this
opening assertion, defendant's brief relies for its grounds of error
exclusively upon the pretrial ruling. (FN3)
Defendant, in focusing his appeal solely on alleged error in the
pretrial suppression ruling, overlooks the reason behind the rule requiring
renewed objection. As outlined above, the basis for requiring defendant's
objection at trial and the basis for the trial court's reconsideration is
the potential for correcting such pretrial error. Having asked the trial
court to reconsider his motion to suppress because of claimed error in the
pretrial suppression ruling, and having received such reconsideration,
defendant on appeal cannot ignore the effect of this reconsideration. (FN4)
Where the trial court acceded to defendant's request to reconsider the
motion to suppress and reached its own determination, this determination was
a ruling on the motion. For defendant to succeed on appeal where, as here,
the trial court's determination was adverse to him, he must as a threshold
matter show error in this determination.
Defendant having failed to point us to any particularized error in the
trial court's ruling on the motion to suppress, and finding none ourselves,
defendant's appeal does not succeed. On the testimony before it, it cannot
be said that the trial court erred in its finding that the officer articu-
lated sufficient facts to justify the stop. "[T]o justify a legal investi-
gatory stop . . . a police officer need have no more than an articulable and
reasonable suspicion that a motor vehicle violation is taking place." State
v. Boardman, 148 Vt. 229, 231, 531 A.2d 599, 601 (1987). The trial court
heard the officer testify that defendant swerved and drifted in his lane,
pulled in behind Burlington Electric Department and briefly parked, and then
subsequently operated his vehicle for a period with its headlights off. We
agree with the trial court that these facts are sufficient to give rise to a
reasonable and articulable suspicion on the part of the officer that the
defendant was operating his motor vehicle while intoxicated. (FN5)
Affirmed.
FOR THE COURT:

Chief Justice

FN1. We emphasize that trial court reconsideration of pretrial
suppression rulings is to be the exception, not the rule. A contrary
emphasis would have a completely opposite and devastating effect on judicial
economy. As we stated in Baldwin, 140 Vt. at 514, 438 A.2d at 1142,
"caution should be the guiding principle in acting on pretrial motions
renewed at, during, or after trial . . . ."

FN2. The trial judge heard the officer testify that defendant was
"drifting and swaying back and forth in the lane." He heard the officer
rebut defendant's attorney's attempt to place the swerving at a place where
the road itself swerves. He heard the officer state that "there should have
been no reason for him [defendant] to be down there [behind Burlington
Electric Department]." He heard the following colloquy:

Q. Now as part of your routine at two o'clock in
the morning you would be monitoring what might be termed
a suspicious vehicle?
A. That's correct.
Q. So you decided to monitor this vehicle who had
kind of backed into a parking area and turned its lights
off?
A. Correct.
He also heard:
Q. Now officer, regardless of the lights, if you
had seen the vehicle swaying in its own lane of traffic,
driving into the Burlington Electric parking lot for a
few minutes at that hour in the morning and then driving
out onto Pine Street, would you have stopped the
vehicle?
A. Eventually, yes. I would have followed it for a
little longer and then eventually stopped it.

FN3. Defendant urges on appeal basically the same argument he presented
to the trial judge: "[t]he court erred when it substituted its own justifi-
cation for the stop in place of the police officer's justification."
Defendant grounds his appeal on the ruling by the motion judge. As defend-
ant's brief states: "The motion court's actions appear to be contrary to
the letter and spirit of Terry v. Ohio. . . . The motion court's ruling,
in effect, means that the court will uphold as valid a stop as long as there
is some justification even though it is not the justification the police
officer had." (Emphasis added). That defendant's argument is based on what
occurred before the motion judge is further evidenced by the fact that
defendant's brief refers solely to the motion transcript.

FN4. Defendant seems to consider his objection at trial to the admission
of evidence sought to be suppressed as a mere formality necessary to pre-
serve appellate review. Yet, as stated above, there is reason behind the
rule. Defendant cannot simply rely, in his appeal, on pretrial error which
he has asked the trial judge to reconsider and correct, without assessing
the effect of this reconsideration. To do so would be tantamount to treat-
ing the trial judge's reconsideration as a "useless performance." Cf. State
v. Connolly, 133 Vt. 565, 569, 350 A.2d 364, 367 (1975). Yet as was implicit
in Connolly, and explicit in Senecal, we do not consider a renewed objection
at trial to the admissibility of evidence which was the subject of a sup-
pression hearing before a different judge to be a "useless performance."

FN5. Indeed, defendant seemed to concede as much in his argument before
the trial court. Speaking of defendant's activity in pulling behind the
Burlington Electric Department, defendant stated that "[w]e agree that that
is more than enough reason to stop under those circumstances, if the police
officer had given that as a basis for the stop."

-------------------------------------------------------------------------------
CONCURRING

No. 90-014

State of Vermont Supreme Court

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

Louis Bruno, Jr. September Term, 1990

George T. Costes, J.

William Sorrell, Chittenden County State's Attorney, Burlington, and Gary S.
Kessler, Resource Attorney, Department of State's Attorneys, Montpelier,
for plaintiff-appellee

Blais, Cain, Keller & Fowler, Inc., Burlington, for defendant-appellant

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

DOOLEY, J., concurring. I concur in the opinion of the Chief Justice
and its reasoning. I believe that the result in this case is commanded by
the Senecal rule as set forth in State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349, 351 (1985) and its progenitors State v. Connolly, 133 Vt. 565,
569, 350 A.2d 364, 367 (1975) and State v. Blondin, 128 Vt. 613, 616-17, 270 A.2d 165, 166-67 (1970). Under this rule, a defendant who has lost a motion
to suppress must renew it at trial if a different judge presides or new
evidence is offered. We have justified the rule on the ground that pretrial
rulings are tentative and that the trial judge must be given an opportunity
to consider the issues if that judge has not done so previously. See, e.g.,
State v. Gonyaw, 146 Vt. 559, 562, 507 A.2d 944, 947 (1985). The rule also
would apply where the judges are the same but new evidence is offered.
Although coerced by the Senecal rule, defendant made the motion to
suppress at trial and obtained the ruling he would now like to ignore. It
makes no sense to say that he can prevail as if the second motion and
ruling never occurred based on the first motion. Such a holding would make
the second motion a formalism -- necessary to obtain review but wholly
irrelevant to the result. Whatever I think of the Senecal rule, I cannot
find that defendant can ignore the trial ruling in this case.
I write here to say, however, that Senecal is wrongly decided, and if
this were a clear case in which to overrule it -- that is, if the question
were whether an error is preserved although not raised at trial -- I would
join the dissent. This case demonstrates the unfair results produced by
Senecal and the lack of an overriding justification in judicial economy or
control by the trial judge. Its application here allows the prosecution to
keep presenting its position until it achieves a result that can stand on
appeal.
In many Senecal situations, we are forcing a second evidentiary hearing
on a matter already heard and decided. At the same time, we are facing a
major problem managing the criminal caseload in the district court.
Backlogs in both misdemeanors and felonies have risen substantially over the
last few years.
In earlier times, most cases were resolved from start to finish by one
judge. Even with rotation, that should be the norm in most criminal cases
in most counties. The volume of cases has reached such a level in
Chittenden County, however, that the workload is divided so that one judge
specializes in pretrial motions and another in trials. The Senecal rule
throws away much of the work of the motions judge as if it never happened.
Ultimate control in the trial judge over all the issues gains nothing in
accuracy or efficiency. Nor is that judge put in error by a ruling of a
motions judge made without any involvement of the trial judge. The
situation is uniquely exacerbated in this area because our rules require the
issues to be raised by pretrial motions, see V.R.Cr.P. 12(b), and our
decisions require pretrial rulings in many cases. See State v. Ritchie, 144
Vt. 121, 123, 473 A.2d 1164, 1165 (1984). Thus, a defendant cannot avoid
double adjudication by raising a matter only at trial.
We rightfully give great weight to the need for finality of
adjudication. Our normal concern for finality would never accept
inconsistent factual adjudication on the same issue in the same case. The
justification for doing so in Senecal cases is, at best, weak. On its face,
it comes from an excessive concern that the trial judge should have the
final say on every issue that arises in a criminal case and should never be
put in error for something that judge did not do. We could accomplish the
same end by saying that the trial judge has the right to reopen pretrial
issues but there is no requirement that the defendant refile every motion to
force that second examination. Ironically, a rule ostensibly justified in
terms of fairness to the trial judge is very unpopular among trial judges,
as demonstrated by their actions in the cases coming before this Court.
Routinely, the trial judge refuses to consider refiled motions because of
lack of time and discomfort with the role of reversing the decision of a
colleague. In fact, compliance with Senecal has become a technical
formality, used largely to avoid issues on appeal.
We should overrule Senecal and stop the waste of limited resources, as
well as the unfairness that this case represents.

Associate Justice

------------------------------------------------------------------------------
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. 90-014

State of Vermont Supreme Court

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

September Term, 1990

George T. Costes, J.

William Sorrell, Chittenden County State's Attorney, Burlington, and Gary S.
Kessler, Resource Attorney, Department of State's Attorneys, Montpelier,
for plaintiff-appellee

Blais, Cain, Keller & Fowler, Inc., Burlington, for defendant-appellant

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

MORSE, J., dissenting. The Court today holds that evidence which should
have been suppressed prior to trial may be used to convict a defendant at a
trial that never should have been held. This topsy-turvy procedure is
unfair and counterproductive to an orderly administration of criminal
justice. I therefore dissent.
At the outset, I point out that the procedure condoned in this case for
fixing a mistake made at the pretrial suppression hearing was not remotely
suggested by the State in advocating for affirmance nor mentioned by defend-
ant in an overabundance of candor. It springs from the Court without the
usual appellate practice of briefing and argument.
Moreover, we have no basis to know what facts the trial court relied on
in denying defendant's motion to suppress at trial. The only findings of
fact on the suppression issue were made by the judge presiding at the
pretrial hearing. Ordinarily, we would remand a case in this posture for
articulation of the basis and reasons for denial of a suppression motion.
State v. Senecal, 145 Vt. 554, 561, 562, 497 A.2d 349, 353 (1985); V.R.Cr.P.
47(c).
Be that as it may, I would reverse on this record because the State
should not be permitted a second chance to cure an error made at the
pretrial suppression motion level.
Our rules require criminal defendants to raise before trial "[m]otions
to suppress evidence on the ground that it was illegally obtained . . . ."
V.R.Cr.P. 12(b)(3). The defendant here followed the rule. Our rules
further provide that "[i]f the motion [to suppress] is granted, the evidence
shall not be admissible at the trial or at any future hearing or trial."
V.R.Cr.P. 41(f). Here, as this Court has concluded, the motion should have
been granted; the suppression judge should have ruled that there was an
insufficient basis to stop defendant. Ordinarily, we would reverse, but the
error is deemed not reversible in this case because the error caused a trial
at which the trial court disagreed with the suppression judge's previously
made findings of fact. The trial court thus "cured" the suppression judge's
error. Of course, it was error for the trial to have occurred at all: had
the suppression judge done as he was supposed to according to this Court,
there would have been no trial. The evidence would have been suppressed,
thereby leaving no evidence available to prove that defendant had committed
a crime.
The unfairness of the Court's approach becomes apparent simply by
pointing out that, had the defendant appeared at the suppression hearing
before a judge who would have reached the right result, he would now be a
free man. Instead, the suppression judge reached the wrong result, giving
the State a second chance to convict defendant, a chance the law says
should not have happened.
Where does this legal hocus pocus come from? Although some courts
have allowed trial evidence to cure erroneous suppression rulings, this
rule is by no means unanimous.
Courts differ regarding what evidence can be
considered by the appellate court on review. Most
federal courts state that, in passing on the denial of a
suppression order, the appellate court can consider the
evidence introduced at trial as well as that introduced
in relation to the pretrial suppression motion. Several
state courts disagree, limiting appellate review to only
that evidence introduced at the suppression hearing or
through the motion papers.

W. Ringel, Searches & Seizures, Arrests and Confessions { 20.7(b), at 20-35
(2d ed. 1991). The federal cases follow Carroll v. United States, 267 U.S. 132, 162 (1925), which established the rule in the most cursory fashion:
"The whole matter [that was the subject of the pretrial motion] was gone
into at trial, so no right of the defendants was infringed." Once the
United States Supreme Court spoke, the issue became "settled law," and other
federal courts have not fully explored the issue, choosing instead to simply
recite the Carroll incantation. State courts adopting a Carroll-type rule
have done so in a similar manner, bereft of analysis, simply concluding
without discussion that the rule is "not prejudicial" to defendants. People
v. Braden, 34 Ill. 2d 516, 520, 216 N.E.2d 808, 810 (1966); Commonwealth v.
Young, 349 Mass. 175, 178, 206 N.E.2d 694, 696 (1965); see also State v.
Carrico, 696 S.W.2d 511, 513 (Mo. App. 1985)("The real damage is not done
until the evidence is introduced in the trial . . . . Thus, a trial court
can receive additional evidence and change its ruling prior to admitting the
objected-to-items in evidence . . . ."). These cases miss the obvious
point: defendant should never have been subjected to the curative trial.
Numerous state courts have deviated from the federal rule and have
reached conclusions supporting this dissent. Trusty v. State, 308 Md. 658,
670-72, 521 A.2d 749, 755-56 (1987); People v. Kaigler, 368 Mich. 281, 288,
118 N.W.2d 406, 409 (1962); State v. Gora, 148 N.J. Super. 582, 592, 372 A.2d 1335, 1340, cert. denied, 74 N.J. 275, 377 A.2d 679 (1977); People v.
Wilkins, 65 N.Y.2d 172, 180, 480 N.E.2d 373, 378, 490 N.Y.S.2d 759, 764
(1985); People v. Gonzalez, 55 N.Y.2d 720, 721-22, 431 N.E.2d 630, 630-31,
447 N.Y.S.2d 145, 145-46 (1981). One state has reached the same result by
statute. See People v. Wright, 72 Cal. App. 3d 328, 344, 140 Cal. Rptr. 98,
107 (Cal. Ct. App. 1977) (under Cal. Penal Code { 1538.5(i), (j), search or
seizure issue can be relitigated at trial, but court can only look at
evidence previously presented at a special hearing on validity of the search
or seizure).
The New York Court of Appeals grounded its rule on a policy of curbing
abuse of the system and injustice to defendants. See Wilkins, 65 N.Y.2d at
180, 480 N.E.2d at 378, 490 N.Y.S.2d at 764 (citing People v. Havelka, 45 N.Y.2d 636, 384 N.E.2d 1269, 412 N.Y.S.2d 345 (1978), which established the
rule in the context of remands for additional evidentiary hearings on
suppression issues). If a defendant's motion is erroneously denied at a
suppression hearing, a potential for abuse exists whenever the State gets a
second opportunity to cure the error: the temptation will always exist
consciously or unconsciously for the State to fill in the holes that
appeared at the suppression hearing and tailor its evidence "to fit the
court's established requirements." Havelka, 45 N.Y.2d at 643, 384 N.E.2d at
1273, 412 N.Y.S.2d 345 at 349. The potential for such abuse was present in
this case. The suppression court clearly found certain parts of the police
officer's testimony less than convincing, and a temptation existed for it to
be presented more forcefully at trial.
As a general rule, "a reviewing court determines the correctness of a
trial court's ruling 'as of the time when it was made and according to what
the record shows was before the lower court at that time.'" Henry v. State,
468 So. 2d 896, 899 (Ala. Crim. App. 1984)(quoting 24A C.J.S. Criminal Law {
1836, at 555-56); accord State v. Boles, 246 N.C. 83, 85, 97 S.E.2d 476, 477
(1957). I see no reason to deviate from this rule in this case.
The practice created by the Court also has serious practical drawbacks.
V.R.Cr.P. 12 was promulgated to simplify pretrial practice, give counsel
and the court early opportunity "to evaluate and shape the case," determine
preliminary matters that could "delay or interrupt trial," and avoid
unnecessary trials. See Reporter's Notes, V.R.Cr.P 12, at 71, 72 (1983).
Case law amplifying the rules provides that renewed motions at trial may be
the basis for revising pretrial rulings. As stated in State v. Baldwin, 140
Vt. 501, 514, 438 A.2d 1135, 1142 (1981):
We agree with defendant's position that pretrial
rulings are not necessarily binding throughout the
trial; they are tentative only, and subject to revision
at trial. If the rule were otherwise a trial judge
would be tied to obvious errors even when, as here, the
earlier rulings were made by a different judge. The
trial judge would moreover be rendered helpless in the
face of additional evidence or other considerations
developing during trial of the case which might
otherwise dictate a modification or a reversal of the
preliminary rulings. While caution should be the
guiding principle in acting on pretrial motions renewed
at, during, or after trial, they are not immutable
regardless of the circumstances which may arise later in
time. (Citation omitted.).

The so-called Senecal rule, that a defendant waives his claim of error in a
pretrial ruling unless objection is renewed at trial, is predicated on the
possibility that "other or different facts [may] appear" at trial which
should cause "a reexamination of issues of constitutional concern." State
v. Connolly, 133 Vt. 565, 569, 350 A.2d 364, 367 (1975) (quoting State v.
Blondin, 128 Vt. 613, 270 A.2d 165 (1970)). When, however, new facts are
not adduced and the same judge presides over the pretrial matter and the
trial, no waiver of review of a pretrial ruling will be found. Senecal, 145
Vt. at 558, 497 A.2d at 351.
The Court does not invoke a Senecal waiver--properly so, because
defendant renewed his objection in moving to suppress at trial--but
misconstrues, in my opinion, the reach of what the Senecal line of cases
envisions may be of consequence in making revised rulings at trial.
For instance, in cases such as this one where the evidence is the same
at trial as it was at the suppression hearing, the Senecal doctrine cannot
be read properly as permitting the trial judge to overrule the facts found
by another judge, who reviewed essentially the same evidence at the
suppression hearing. To allow otherwise serves no legitimate purpose and
flies in the face of time-honored doctrines of finality. To permit the
practice of the trial judge finding facts specifically not found by the
suppression judge on essentially the same testimony renders our justice
system suspect and offends the spirit of not placing a defendant in double
jeopardy. It tells a defendant, you may need to undergo two evidentiary
proceedings before different judges and be subject to the most restrictive
view of the factual merits on which your motion rests.
I agree with Justice Dooley's concurrence that Senecal should be
overruled, except I believe Senecal does not demand affirmance in this
case. The Senecal doctrine is not entirely irrational if we reverse here.
At best, the Senecal doctrine should be viewed narrowly, as solely a rule of
waiver in circumstances where a defendant does not seek at trial a second,
more favorable, opinion. I read Senecal as requiring the second opinion,
using the trial court as a quasi-intermediate appellate court. As pointed
out by the Court, the second opinion is for "protection of defendant's
rights," not to cure erroneous suppression of evidence before trial.
The principal practical difficulty with the Court's approach is the
reality that the trial judge--knowing that another judge has denied a
motion to suppress on the very evidence presented anew at trial--simply does
not feel obligated to second-guess the other judge. This is natural given
the reluctance to try issues over again and the deference judges ordinarily
give to each other's rulings. The trial record in this case, being devoid
of any factual reason given to deny suppression, underscores the concern
that the trial judge may simply defer to the result reached by the pretrial
judge.
The better practice is to require the State to fully litigate a
suppression issue prior to trial and not burden a defendant with the
possibility that at trial a concerned prosecutor may endeavor to improve
the factual record on the suppression issue. A defendant should not have
to run the gauntlet twice.

I would reverse.

_________________________________
Associate Justice

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