State v. Beresford

• Decision Date: 12 April 1991
• Docket Number: No. 88-248,88-248
• Citation: 592 A.2d 882,156 Vt. 333
• Parties: STATE of Vermont v. John BERESFORD.
• Court: Vermont Supreme Court

Page 882

592 A.2d 882

156 Vt. 333

STATE of Vermont v. John BERESFORD.

No. 88-248.

Supreme Court of Vermont.

April 12, 1991.

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

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

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

GIBSON, Justice.

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 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.

PECK, Justice, 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...