State v. Adams
| Citation | 131 Vt. 413,306 A.2d 92 |
| Decision Date | 05 June 1973 |
| Docket Number | No. 116-72,116-72 |
| Parties | STATE of Vermont v. Verne ADAMS. |
| Court | United States State Supreme Court of Vermont |
M. Jerome Diamond, State's Atty., for the State.
Natt L. Divoll, Jr., Bellows Falls, for defendant.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
The defendant, Verne Adams, was charged in the District Court of Vermont, Unit No. 6, Windham Circuit, with a violation of 23 V.S.A. § 1201, operating a motor vehicle upon the public highway while under the influence of intoxicating liquor. Trial by jury resulted in a verdict and judgment of guilty. Subsequent to the verdict, the defendant filed a motion to set aside the verdict and a motion for a directed verdict of acquittal. Both motions were denied. The defendant appeals to this Court from the judgment of guilty.
The factual situation is as follows: On March 12, 1972, at about 1:30 a. m., two officers of the Brattleboro Police Department were proceeding in their cruiser to the residence of the wife of an individual who was, at the time, being held at the Brattleboro Police Station. The purpose of the officers' journey was to bring the wife of the individual to the police station where the individual was being held so that she could be with him.
On their way to pick up the wife, the two officers first observed the defendant leaning on a parking meter post near the residence of the wife. After stopping the cruiser, both officers approached the residence and knocked on the door. While waiting for an answer, the officers again observed the defendant approach a parked automobile, open and close the door of that automobile without entering it. The defendant was then observed by the officers lighting a cigarette, in the process of which he nearly fell to the ground. The officers then saw the defendant proceed down the sidewalk in a swaying and staggering manner. Both officers formed the opinion that the defendant was intoxicated.
The wife then answered the officers' knock. The officers, after waiting for her to get dressed, proceeded to return to the police station with her in the cruiser. Immediately after leaving her residence, they again saw the defendant. Thinking that he might return to the automobile and attempt to operate it, the officers parked their cruiser a short distance away at a point where they could see the parked automobile. Within a short period of time, the officers saw the defendant walk directly toward the parked automobile, enter it, and proceed to operate it down the street.
After the defendant's vehicle passed the point where the cruiser was parked, the officers followed for a few hundred yards until it was parked by the defendant at the curb in front of a diner. The defendant alighted from the vehicle and then was confronted by the officers who testified that he was unsteady on his feet, had the odor of alcohol on his breath, his eyes were bloodshot and watery. The defendant was then arrested and charged with the offense of which he was later found guilty. A chemical analysis of his blood test, to which the defendant consented, revealed a blood alcohol content of 0.16 per cent by weight of alcohol in his blood.
At the trial, the defendant testified in his own behalf. He admitted to the consumption of three cans of beer during the evening and two highballs later in the night prior to his arrest at about 1:30 a. m. He denied being under the influence; he further testified that he did not recall seeing the officers prior to his being apprehended and that in his opinion, he was all right at all times material.
By his first ground alleged in his motion to set aside the verdict and for a directed verdict of acquittal, the defendant claims the State was barred and estopped from prosecuting him for the violation of 23 V.S.A. § 1201. The basis of his claim is the allegation of a breach of duty on the part of the complaining officers.
He claims that the officers, having knowledge of his apparently intoxicated condition, became charged with the legal duty of preventing him from operating his motor vehicle instead of secreting themselves and lying in wait to effectuate an arrest for a crime they believed might occur. The actions of the officers and their claimed failure to act is the basis for the estoppel and bar asserted. The claim is one novel to this jurisdiction. None can dispute the premise that prevention of crime is a general duty of all law enforcement officers as stated in the cases relied upon by the defendant in his brief. Such duty is performed constantly in a routine manner by every law enforcement officer patrolling the streets and highways of this State. The defendant, however, has cited to us no authority imposing upon law enforcement officers a duty to apprehend an individual observed in an intoxicated condition so as to prevent him from operating a motor vehicle while in that condition. The conclusion of a duty which the defendant would have us draw is based upon the premise of duty, which under the circumstances shown by the record, is non-existent.
The defendant maintains that the officers had the authority to anticipate the commission of the crime and prevent it before fruition. However, the defendant provides no examples of legitimate law enforcement mechanisms which were permissible to use by the officers in this situation.
In examining the defendant's contention, we first recognize the following quote contained in Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968):
'No right is held more sacred, or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.'
This, of course, does not preclude an officer from engaging in non-restraining encounters with citizens. See Terry v. Ohio, supra. However, the authority to arrest and thus restrain the citizen is governed by clearly defined perimeters. A law enforcement officer, of course, has the authority to arrest and seize a person under a valid warrant. Vt. Const. ch. 1, art. 11.
An officer also has the authority to arrest, without warrant, one whom he has reasonable cause to suspect is committing or has committed a felony. State v. Crepeault, 127 Vt. 465, 471, 252 A.2d 534 (1969); In re Huard, 125 Vt. 189, 192, 212 A.2d 640 (1965). An officer can, without warrant, also arrest for a misdemeanor when that misdemeanor for which that person is arrested was committed in the presence of the officer making the arrest. 13 V.S.A. § 5507; see also Kurtz v. Moffitt, 115 U.S. 487, 498-499, 6 S.Ct. 148, 29 L.Ed. 458 (1885).
Such is the rule for a breach of peace, where an officer has the authority to arrest if this misdemeanor is being committed in his presence. State v. Mancini, 91 Vt. 507, 510, 101 A. 581 (1917). However, this offense is unique in that an officer can arrest if he reasonably anticipates it is necessary to prevent a breach of peace. State v. Mancini, supra. In such a situation public policy requires quick action by an officer to be necessary to forestall and prevent violent harm to citizens. Thus, actual physical restraint may be necessarily employed to prevent a breach of peace. State v. Crepeault, supra, 127 Vt. at 471, 252 A.2d 534.
In this case, the defendant appeared to be intoxicated at the time that he was first observed by the officers. However, in order to arrest without warrant for public intoxication, the additional element of disturbing 'the public or domestic peace and tranquility' must be present. 7 V.S.A. § 562; State v. Bradbury, 118 Vt. 380, 383, 110 A.2d 710 (1955). There is no showing in the record that a breach of peace was occurring or reasonably anticipated by the officers prior to the defendant's operation of his vehicle.
The defendant speculates as to the consequences as to the officers' failure to restrain him, in that his operation while intoxicated could have caused physical injury or property damage. However, suspicion and speculation are not enough to justify a warrantless arrest. See generally Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).
Therefore, the facts in this case do not establish by what authority the officers would have been operating under by physically restraining the defendant prior to the commission of the offense with which he was charged. Therefore, we cannot subscribe to the defendant's theory that...
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State v. Ball
...Schrieber, 45 Cal.App.3d 917, 119 Cal.Rptr. 812 (1975); Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974); State v. Adams, 131 Vt. 413, 306 A.2d 92 (1973); Marcum v. Commonwealth, 483 S.W.2d 122 (Ky.1972); Varner v. State, 493 P.2d 452 (Okl.Cr.1972); State v. Johnson, 42 N.J. 14......
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...go to the jury. We recognize that previously we have treated § 1204(a)(3) as creating a Thayer-Wigmore presumption. State v. Adams, 131 Vt. 413, 306 A.2d 92 (1973); State v. Bessette, 130 Vt. 438, 296 A.2d 179 (1972); State v. Brown, 125 Vt. 58, 209 A.2d 324 (1965). Nonetheless, we are now ......
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State v. Diamondstone, 63-73
...complaint was made by one arrested for operating a motor vehicle while under the influence of intoxicating liquor in State v. Adams, 131 Vt. 413, 416-418, 306 A.2d 92 (1973), to no avail, and the defendant takes nothing The defendant requested that the trial court not excuse the jury while ......
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...true spirit and doctrine of the law and there is no fair ground to say that the jury has been misled, it ought to stand. State v. Adams, 131 Vt. 413, 306 A.2d 92 (1973). The interpretation of the court's charge for which defendant contends would be based on a premise that defendant must pro......