Hart v. Com., 791798
| Decision Date | 28 August 1980 |
| Docket Number | No. 791798,791798 |
| Citation | 269 S.E.2d 806,221 Va. 283 |
| Parties | Thomas HART v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
Edward S. Rosenthal, Alexandria (Miller, Rosenthal & Grimaldi, Alexandria, on briefs), for appellant.
Thomas D. Bagwell, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.
Before CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ., and HARMAN, Special Justice.
The trial court, sitting without a jury, convicted Thomas Hart of statutory burglary, sentenced him to confinement in the penitentiary for two years, and suspended the entire sentence upon certain specified conditions. On appeal, the question is whether an oral confession made by Hart should have been excluded from evidence as the product of an unlawful search and seizure of his clothing.
On June 24, 1978, at approximately 5:00 a. m., a Fairfax County police officer, Richard Reeder, arrived at a McDonald's restaurant on Route 1 to investigate a burglary reported by a truck driver for McDonald's. The driver told Reeder that the man whom he had seen leaving the building was dressed like Hart, who was then in sight walking north on the shoulder of Route 1. Reeder, accompanied by the driver, approached Hart and questioned him, but the driver could not positively identify Hart as the burglar. Reeder observed that Hart was unsteady, his eyes were bloodshot, his speech was slurred, and there was alcohol on his breath. Reeder testified that, although he believed that he could have arrested Hart at that time for being drunk in public, his responsibility was to investigate the burglary. As he did not think that Hart was involved in that crime, the officer did not arrest him, and Hart resumed walking along Route 1.
Approximately two minutes later, another police officer stopped Hart and observed what appeared to be glass fragments imbedded in his trousers and shoes. Apprised of this information, Reeder arrested Hart for being drunk in public. The officer, however, conceded that he made the arrest because he was interested in obtaining the glass fragments for laboratory comparison with glass particles broken from the windows and door of the restaurant during the burglary. Reeder transported Hart to a police station, arraigned him before a magistrate, and, after reading him the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), interrogated him. Hart denied having had anything to do with the burglary. Reeder then took Hart's trousers and shoes for laboratory testing, leaving Hart in his underwear in a detention cell where he remained until other clothes were brought to him and he was released from custody. Reeder acknowledged that he was unaware of any police policy requiring the removal of clothes and shoes from persons arrested for being drunk in public.
Hart's motion to suppress evidence, including his own inculpatory statement, obtained following the alleged unlawful search and seizure, was considered at trial rather than in pretrial proceedings. Hart, testifying for the limited purpose of supporting the motion, admitted that he had been drinking heavily, that he had "passed out" several times during the night, and that he had taken his last drink about 3:00 a. m., but was still feeling the effects of alcohol when he first encountered Officer Reeder on Route 1. After he was stopped the second time, Hart asserted, he overheard the officers say that they wanted to get some glass from his clothes to "match" with that found in the restaurant. Hart testified that after he was arrested by Reeder and taken to the police station, Reeder expressed the opinion that he was a suspect in the burglary and informed him that his clothes and the glass on them would be sent to a laboratory for analysis.
The prosecuting attorney argued that the search and seizure were not conducted "entirely" incident to Hart's arrest, but were carried out pursuant to "continuing probable cause to take an item". The trial court, however, found that the officer arrested Hart because he had "additional cause to believe" that Hart, with "sand or what appeared to be some type of glass on his trousers", might be involved in the burglary. The court then sustained the motion to suppress the physical evidence and the laboratory analysis of the glass fragments on the ground that charging Hart with being drunk in public and taking him into custody was "simply a pretext arrest". The court's ruling, however, did not embrace the inculpatory statement to which the motion to suppress was also directed, and evidence was introduced showing the circumstances under which Hart gave the statement.
On July 17, 1978, Investigator Terry W. Baker obtained a warrant charging Hart with the statutory burglary of the McDonald's restaurant. Baker testified that at his request Hart came to the police station the next evening "in reference to" the burglary. Hart had not then been arrested on that charge. Prior to interrogating Hart, Baker read to him the Miranda warnings and Hart executed a waiver form. Baker informed Hart that he knew that glass had been found on Hart's clothing at the time of his arrest for being drunk in public, and that the laboratory certificate of analysis of the glass fragments established Hart's presence at the scene of the burglary. Hart then gave Baker an oral statement concerning the crime. Baker asserted that Hart was not intoxicated, was not subjected to force or threats, and was not offered any promises or inducements before making the statement.
Hart objected to the admissibility of the statement on the ground that it was obtained in exploitation of the primary illegality of the search and seizure of his trousers and shoes, and that the giving of Miranda warnings alone was not sufficient to attenuate the taint. The prosecuting attorney argued that the statement was freely and voluntarily given by Hart almost a month after his arrest on June 24 and was therefore admissible. In answer to the question posed by the trial court whether Hart was not induced to make the statement because "the officer told him that glass was found on his clothing at the time of the arrest", the prosecutor replied that since Hart knew from the conversation between the officers when he was first arrested that the glass fragments had been discovered, confirmation of this fact did not cause him to confess.
Without assigning reasons for its ruling, the trial court overruled Hart's objection to the admissibility of the statement. Baker then testified that Hart related that, after an argument with his girl friend, he had been drinking, and as he was walking home, he decided to break into the McDonald's restaurant because he was hungry. Hart confessed to Baker that he broke a window, entered the building, and took five or six packages of buns and some sausage patties.
The trial court's earlier ruling that sustained in part Hart's motion to suppress evidence was made pursuant to the exclusionary rule established by the United States Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and made applicable to the states by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), whereby evidence obtained in violation of the Fourth Amendment proscription of unreasonable searches and seizures may not be used against an accused. We note with interest the "disenchantment" of some members of the Supreme Court with this rule. See Brown v. Illinois, 422 U.S. 590, 600, n. 5, 95 S.Ct. 2254, 2260, 45 L.Ed.2d 416 (1975). Our own philosophical misgivings * are irrelevant, and we will of course continue to apply the rule as construed from time to time by the Supreme Court. See Thims v. Commonwealth, 218 Va. 85, 235 S.E.2d 443 (1977). Hart contends that the trial court, having applied the rule to exclude all other evidence obtained by means of the illegal search and seizure, should have excluded also his oral confession as the product of the unlawful police actions, under the "fruit of the poisonous tree" doctrine set forth in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). See United States v. Crews, 445 U.S. 463, 470-472, 100 S.Ct. 1244, 1249-50, 63 L.Ed.2d 537 (1980).
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