State v. Hollis

STATE_V_HOLLIS.92-462; 161 Vt. 87; 633 A.2d 1362

[Filed 15-Oct-1993]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-462


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windham Circuit

 Thomas Hollis                                May Term, 1993



 Robert Grussing III, J.

 Karen R. Carroll, Windham County Deputy State's Attorney, Brattleboro, for
    plaintiff-appellee

 E.M. Allen, Defender General, and William A. Nelson, Appellate Attorney,
    Montpelier, for defendant-appellee


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



      MORSE, J.   The State appeals from an order suppressing contraband
 discarded by defendant at police barracks following a custodial arrest for
 possession of marijuana discovered during an unlawful search of his vehicle.
 The question we address is whether suppression of the discarded contraband
 was error considering that police had the authority to arrest, but did not
 arrest, defendant for driving with a suspended license (DLS).  We affirm.
      Acting on a tip, the Windsor Police Department informed the state
 police on March 8, 1991 that specified individuals, including defendant,
 would be transporting cocaine into Vermont that day.  A computer printout
 described the vehicle that the suspects would be driving and indicated that

 

 defendant's license had been suspended.  Based on this information, two
 state police officers stopped the vehicle shortly after it entered Vermont.
 Defendant, the driver, displayed a Louisiana driver's license.  One officer
 placed defendant in the police cruiser and ran a license check, which con-
 firmed that his license had been suspended in Vermont for failure to appear
 in New Hampshire on a motor vehicle charge.  Further investigation revealed
 that the other three occupants of the vehicle had suspended licenses, and
 that all of the occupants, including defendant, resided in Windsor.
      Stating that he smelled marijuana, the other officer searched the
 vehicle.  Marijuana was discovered.  A tape made at the scene of the arrest
 indicates that the first officer informed defendant as follows: "[Y]our
 vehicle is going to be towed, the search is going to continue at the State
 Police Barracks, West Brattleboro.  I'm going to issue you a citation for
 DLS. . . .  I'm placing you under arrest for possession of marijuana."  At
 the barracks, defendant was placed in a conference room by himself.  At one
 point, an officer entered the room and discovered a bag containing cocaine
 and marijuana on the floor.  A short time later, defendant was cited and
 released.
      Defendant was charged with felony possession of cocaine, misdemeanor
 possession of marijuana, and DLS.  At the hearing on defendant's motion to
 suppress, the State conceded that the marijuana found in the vehicle had to
 be suppressed because the search of the vehicle was unlawful.  The State
 argued, however, that the drugs discovered at the police barracks should not
 be suppressed because defendant had been lawfully arrested for DLS.  The
 State pointed out that an officer may arrest a person for a misdemeanor if
 the person's ties to the community are not sufficient to assure that the

 

 person will respond to a citation, or if the person has previously failed to
 appear in response to a citation or other court order.  The State argued
 that defendant was properly arrested for DLS because he was coming from out
 of state, he presented a license from a different state, and he had failed
 to appear at a court proceeding in yet another state.
      Defendant conceded that the stop was legal, but argued the evidence
 discovered at the police barracks was the "tainted fruit" of an illegal
 arrest that directly resulted from an unlawful search.  The district court
 ruled that the evidence must be suppressed because (1) despite the officer's
 testimony that he arrested defendant for possession of marijuana and DLS,
 the actual ground for the arrest, as stated by the officer at the time the
 arrest was made, was possession of marijuana; and (2) assuming defendant had
 also been arrested for DLS, a custodial arrest would have been improper
 because the officer's doubts concerning defendant's ties to the community
 were minimal.
      On appeal, the State argues that the facts known to the officer at the
 time of the arrest permitted the police to take defendant to the state
 police barracks and then release him on a citation after confirming his ties
 to the community.  Defendant responds that, given the court's finding that
 defendant was arrested for possession of marijuana, not DLS, whether he
 could have been arrested for DLS is irrelevant.  Therefore, according to
 defendant, the arrest was unlawful and the evidence discovered at the
 police barracks must be suppressed as the tainted fruit of the illegal
 arrest.  We agree that the contraband discarded at the police station must
 be suppressed.

 

      At the outset, we note that we cannot affirm the trial court's decision
 on the ground that an arrest for DLS, even if intended, would not have been
 lawful.  Although the court concluded that a custodial arrest would have
 been improper because the officer's doubts concerning defendant's ties to
 the community were minimal, it did not address the State's argument that a
 custodial arrest for DLS would have been proper under V.R.Cr.P. 3(c)(2)(E)
 because the officer was aware that defendant had previously failed to appear
 in response to a citation before another court.  We conclude that a
 custodial arrest for DLS would have been appropriate here under Rule
 3(c)(2)(E), which permits arrest or continued custody for a misdemeanor when
 the "person has previously failed to appear in response to a citation,
 summons, warrant or other order of court issued in connection with the same
 or another offense."
      While it is true that allowing police to make a custodial arrest for a
 misdemeanor because of the defendant's prior failure to appear is most
 likely based on the same rationale as the one allowing an arrest where the
 defendant's ties to the community are in doubt, the latter does not subsume
 the former.  Compare V.R.Cr.P. 3(c)(2)(D) with V.R.Cr.P. 3(c)(2)(E).  In
 effect, a prior failure to appear, regardless of other factors, creates
 enough doubt about whether the defendant would respond to a citation to
 allow a custodial arrest.  Further, the fact that defendant ultimately was
 released on citation would not somehow invalidate an arrest for DLS.  The
 police could have made a custodial arrest for DLS based on defendant's
 previous failure to appear, and then released him when they were satisfied
 that he would appear.  See V.R.Cr.P. 3(c)(1) (citation must be issued once
 reasons for custodial arrest no longer exist).

 

      Our determination that the officer could have arrested defendant for
 DLS does not end our inquiry, however.  We must address whether the
 arresting officer's actual motives or stated grounds for the arrest may be
 considered in determining whether the arrest broke the causal link between
 the unlawful search and the discovery of the contraband at the police
 station.  Although we have recently followed the majority of the federal
 circuits, which limit Fourth Amendment analysis to examining "the objective
 legality of the arrest,"  State v. Towne, ___ Vt. ___, ___, 615 A.2d 484,
 496-97 (1992), we have not addressed this issue in the precise context
 presented here.
      In Towne, the defendant argued that his warrantless arrest on a federal
 firearms charge was a mere pretext for interrogating him regarding a murder
 he was suspected of committing, and therefore was unlawful.  We held that
 regardless of the officer's underlying motive for the arrest, the arrest was
 valid because (1) the officer had probable cause to believe defendant was
 carrying a firearm in violation of federal law, and (2) the warrantless
 arrest was authorized by state law.  Id. at ___, 615 A.2d  at 497.  We
 followed this two-part objective test because we recognized that it was more
 consistent with United States Supreme Court precedent than the test
 followed by the Tenth and Eleventh Circuits, which seeks to determine
 whether an arrest or stop would have been made absent the allegedly improper
 motive.  Id. at ___ n.3, 615 A.2d  at 497 n.3 (citing Scott v. United States,
 436 U.S. 128, 136 (1978)). (FN1)

 

      In Scott, the defendants sought suppression of all evidence gathered as
 the result of a wiretap on the grounds that the officers admitted they made
 no attempt to comply with a statutory requirement that the number of
 intercepted calls be minimized.  The defendants argued that the government's
 post-hoc explanation of the reasonableness of intercepting most of the calls
 could not show compliance with the law because "having been prepared after
 the fact by a Government attorney and using terminology and categories which
 were not indicative of the agents' thinking at the time of the
 interceptions, [the explanation] does not reflect the perceptions and mental
 state of the agents who actually conducted the wiretap."  Scott, 436 U.S.  at
 135.
      The Court acknowledged that the motives of an officer play some part
 in determining the application of the exclusionary rule after a statutory or
 constitutional violation has been established, but determined that the
 existence of such a violation turns on an objective assessment of the
 officer's actions in light of the facts and circumstances at the time the
 officer acted, regardless of the underlying intent or motivation of the
 officer.  Id. at 135-38.  "[T]he fact that the officer does not have the
 state of mind which is hypothecated by the reasons which provide the legal
 justification for the officer's action does not invalidate the action taken
 as long as the circumstances, viewed objectively, justify that action."  Id.
 at 138.
      This principle has been accepted by courts and commentators in a wide
 variety of circumstances.  See id. at 138 n.12; 1 W. LaFave, Search and
 Seizure { 1.4(b), at 83 (1987) (principle set forth in Scott should control

 

 in resolving suppression issues arising from exclusionary rule).  For
 instance, this Court and other courts have generally disregarded the
 underlying motives of the arresting officer in cases where there is legal
 justification for arrest on the stated grounds.  See Towne, ___ Vt. at ___,
 615 A.2d  at 496-97 (cases cited therein).
      Courts have also upheld arrests based on this principle where there was
 no probable cause to arrest on the stated ground but there was probable
 cause to arrest for another offense.  See, e.g., United States v. Lester,
 647 F.2d 869, 873 (8th Cir. 1981) (even if arrest for detoxification was
 unlawful, probable cause existed to arrest defendant for assault); United
 States v. Carr, 445 F. Supp. 1383, 1387 (D. Conn.) (existence of probable
 cause to arrest defendant for illegal possession of firearms justified
 warrantless search despite officer's testimony that arrest was for reckless
 endangerment, for which there was no probable cause), aff'd, 584 F.2d 612
 (2d Cir. 1978); Hamm v. State, 527 A.2d 1326, 1330-31 (Md. Ct. App. 1987)
 (assuming officer did not have probable cause to arrest defendant for
 stated ground -- unathorized use of automobile -- he had probable cause to
 arrest for weapons violation); cf. State v. Klevgaard, 306 N.W.2d 185, 192
 (N.D. 1981) (because suspected burglar could have been arrested for
 reckless driving, initial arrest was legal despite failure of officer to
 state ground for arrest); State v. Retford, 281 S.E.2d 471, 472-73 (S.C.
 1981) (fruits of search incident to arrest properly admitted where probable
 cause existed to arrest defendant for auto theft, though stated ground was
 tampering with automobile).
      These cases stand for the proposition that the validity of an arrest
 hinges upon whether the officer had probable cause to arrest, not whether

 

 the officer articulated the correct basis for the arrest.  Thus, when an
 officer's arrest is properly supported by probable cause to arrest for a
 particular offense, neither the officer's subjective reliance on an offense
 for which there is no probable cause, nor the officer's verbal announcement
 of the wrong offense, vitiates the arrest.  People v. Kincy, 435 N.E.2d 831,
 834-35 (Ill. App. Ct. 1982) (although officer's stated ground for arrest  --
 unlawful use of weapons -- was not supported by probable cause, there was
 probable cause to arrest defendant for aggravated assault); see Richardson
 v. Bonds, 860 F.2d 1427, 1430 (7th Cir. 1988) ("While an arresting officer's
 subjective knowledge of facts sufficient to constitute probable cause is
 central to evaluation of the propriety of an arrest, we do not believe that
 the officer's view of the legal basis for the arrest is important.").
      Nevertheless, while the courts generally employ an objective standard
 in assessing the legal basis for an arrest, they will not "indulge in ex
 post facto extrapolations of all crimes that might have been charged on a
 given set of facts at the moment of arrest."  United States v. Atkinson, 450 F.2d 835, 838 (5th Cir. 1971).  In order to prevent post-hoc justifications
 for otherwise invalid arrests, Atkinson limited the two-part objective test
 by holding that where probable cause does not exist for the articulated
 offense, there is a valid arrest only if that offense, and the offense for
 which there was probable cause, are related.  Id.  According to the court,
 an arrest is valid when there is a nexus between the crime charged and the
 crime for which probable cause exists because "[a]ny other rule would force
 police officers to routinely charge every citizen taken into custody with
 every offense they thought he could be held for."  Id.

 

      Several courts have followed the Atkinson rule.  See, e.g., United
 States v. Rambo, 789 F.2d 1289, 1294 (8th Cir. 1986) (contraband admissible
 because police could have arrested defendant for violating undesirable-guest
 statute, an offense closely related to charged offense of disorderly
 conduct); United States v. Martinez, 465 F.2d 79, 82 (2d Cir. 1972) (agents
 had probable cause to arrest for crime of transferring marijuana without
 written order form, which is closely related to charged crime of selling
 marijuana); C-1 v. City of Horn Lake, 775 F. Supp. 940, 945-46 (N.D. Miss.
 1990) (insufficient nexus between offense of disorderly conduct and offense
 of trespassing); State v. Sparks, 422 S.E.2d 293, 295 (Ga. Ct. App. 1992)
 (though officer arrested defendant for littering in violation of county
 ordinance, that did not authorize custodial arrest; seized drugs were not
 fruit of poisonous tree because officer could have arrested defendant for
 illegal dumping under state statute); State v. Smith, 452 N.W.2d 86, 89-90
 (N.D. 1990) (even if no probable cause existed to stop felon, who was
 eventually convicted of possession of firearms, for an open-container
 violation, officer could have stopped felon for unlawful deposit of refuse).
      Generally, offenses are related when "the conduct that served as the
 basis for the charge for which there was no probable cause could, in the
 eyes of a similarly situated reasonable officer, also have served as the
 basis for a charge for which there was probable cause." Trejo v. Perez, 693 F.2d 482, 486 (5th Cir. 1982); see State v. Smith, 452 N.W.2d  at 90
 (unlawful deposit of refuse, offense upon which arrest was justifiable, and
 open-container violation, the stated grounds for the arrest, were related
 offenses because they arose from same set of factual circumstances);
 Richardson v. Bonds, 860 F.2d  at 1431 (court may reject as unreasonable an

 

 ex post facto rationale for arrest "which is extravagant or novel, or which
 is based on 'stale' facts that could have formed the basis for an earlier
 arrest"); People v. Corrigan, 473 N.E.2d 140, 144 (Ill. App. Ct. 1985) (ex
 post facto grounds for arrest proper if known to officer at time of arrest
 and if interrelated to, and occurring contemporaneously with, grounds stated
 by officer).
      The law considered thus far may be summed up as follows: the motives of
 arresting officers are irrelevant (1) when there is probable cause and legal
 justification for the offense stated as the basis for the arrest, or (2)
 when there is no probable cause or legal justification to arrest based on
 the grounds stated by the officer but the stated offense and the offense for
 which there is probable cause and legal justification are reasonably
 related.
      Neither situation is present here.  In this case, the arresting officer
 was aware that defendant had been operating a vehicle with a suspended
 license but chose not to arrest him on that charge.  Rather, the arrest was
 based on a drug charge that stemmed from an illegal search.  The district
 court relied on the transcript of the arresting officer's statement to
 defendant in concluding that the officer's sole basis for the arrest was the
 drug charge resulting from that search.  This finding is supported by the
 evidence.  More importantly, the conduct that served as the basis for the
 charge -- possession of contraband -- could not have served as the basis for
 the DLS charge.  See Trejo v. Perez, 693 F.2d  at 486.
      Therefore, the fruit of the tainted search and subsequent arrest must
 be suppressed.  See State v. Badger, 141 Vt. 430, 439-40, 450 A.2d 336, 342
 (1982) (evidence must be suppressed unless causal nexus between illegal

 

 police conduct and procurement of evidence has become so attenuated by
 intervening events as to dissipate the taint).  The State may not employ a
 post-hoc rationalization for an arrest stemming from an illegal search to
 break the causal link between the illegal conduct and the subsequently
 discovered evidence.  See Scott v. United States, 436 U.S.  at 135-36 ("In
 view of the deterrent purposes of the exclusionary rule, consideration of
 official motives may play some part in determining whether application of
 the exclusionary rule is appropriate after a statutory or constitutional
 violation has been established.").
      Finally, we need not consider whether the apparent abandonment of the
 contraband at the police station was a voluntary abandonment that purged the
 taint of the illegal arrest, as that argument was never raised by the State.
 Cf. Lawrence v. Henderson, 478 F.2d 705, 708 (5th Cir. 1973) (where illegal
 arrest prompted defendant to conceal narcotics paraphernalia in police
 vehicle, abandonment was not voluntary); Commonwealth v. Harris, 421 A.2d 199, 202 (Pa. 1980) (in 4-3 decision, court held that defendant's
 abandonment of incriminating evidence in police station's toilet was not an
 intervening, independent act of free will sufficient to purge taint of
 illegal arrest).
      Affirmed.

                                    FOR THE COURT:



                                    _____________________________________
                                    Associate Justice



------------------------------------------------------------------------------
                                  Footnotes  

FN1.   The defendant in Towne did not suggest that a pretext analysis would
 differ under the Vermont Constitution, and we did not reach that issue.  See
 id. at ___ n.4, 615 A.2d  at 497 n.4.  Similarly, the parties here do not
 invoke the Vermont Constitution, and we do not consider an independent
 analysis under our constitution.

------------------------------------------------------------------------------
                                 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-462


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windham Circuit

 Thomas Hollis                                May Term, 1993



 Robert Grussing III, J.

 Karen R. Carroll, Windham County Deputy State's Attorney, Brattleboro, for
    plaintiff-appellee

 E.M. Allen, Defender General, and William A. Nelson, Appellate Attorney,
    Montpelier, for defendant-appellee


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



      ALLEN, C.J., dissenting.   I agree with the majority's conclusion that
 arrest or continued custody would have been appropriate under the facts
 presented pursuant to V.R.Cr.P. 3(c)(2)(E), but believe that this conclusion
 requires a different result.
      The officer was in possession of information indicating that
 defendant's license was under suspension.  Following the stop, he asked
 defendant to exit his vehicle while the officer performed a license check to
 determine whether defendant had a valid license; the officer learned from
 that check that the license was under suspension for failure to appear in
 New Hampshire.  He was concerned about defendant's ties to the community

 

 because defendant was claiming to be a Vermont resident but had a Louisiana
 driver's license and was coming from Massachusetts.  The officer clearly had
 probable cause to believe that a misdemeanor had been committed in his
 presence and could continue the custody of defendant for the purpose of
 determining whether his community ties were sufficient to assure his
 appearance.  V.R.Cr.P. 3(c)(2)(D),(E).  The officer testified that
 defendant was in his custody for driving with a suspended license (DLS), in
 violation of 23 V.S.A. { 674.
      The evil that the line of cases beginning with United States v.
 Atkinson, 450 F.2d 835 (5th Cir. 1971), seeks to prevent is a sham arrest at
 the outset which is totally unrelated to the crime for which probable cause
 to arrest exists.  The facts here do not suggest post-hoc justification for
 an otherwise invalid arrest condemned in Atkinson.  It is unnecessary in
 this case to conduct an Atkinson inquiry as to whether the officer "could
 have" arrested for a related crime.  The initial detention was for DLS; the
 continued custody was for the purpose of determining whether the Rule
 3(c)(2) exceptions applied.  A citation to appear was issued for both DLS
 and possession of marijuana and defendant was ultimately charged with both.
 While the arrest for marijuana possession may have been unlawful, continued
 custody to determine whether the V.R.Cr.P. 3(c)(2) exceptions applied for
 the DLS offense was lawful.  I would reverse.


                                              ____________________________
                                              Chief Justice