State v. Harbaugh, 26-73

Decision Date01 October 1974
Docket NumberNo. 26-73,26-73
Citation326 A.2d 821,132 Vt. 569
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Ray William HARBAUGH, Jr.

M. Jerome Diamond, State's Atty., and James M. Ruschell, Deputy State's Atty., for the State.

Warren B. Rudman, Atty. Gen., and David W. Hess, Asst. Atty. Gen., for the State of New Hampshire, amicus curiae.

Robert Edward West, Defender Gen., Rutland and George E. Rice, Jr., Deputy Defender Gen., Montpelier, for defendant.

Before BARNEY, C. J., and SMITH, DALEY and LARROW, JJ., and SHANGRAW, C. J. (Ret.)

LARROW, Justice.

Respondent Harbaugh was convicted by jury trial in the District Court of Vermont, Unit No. 6, Windham Circuit, on two informations charging burglary in the nighttime and grand larceny. He seeks here, without protestation of innocence, a ruling that certain evidence against him, including a confession, should have been excluded below under the exclusionary rules rooted in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1926), andWong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). He would, in short, have us rule that 'the criminal is to go free because the constable has blundered.' Cf. Cardozo, J., in People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926). An unique feature of this case is that the constables in question are New Hampshire police officers, acting there under a New Hampshire statute.

Respondent also questions the charge given by the court as to the voluntariness of his confession, and a failure to charge thereon pursuant to his timely requests.

The facts pertinent to the issues here raised are largely undisputed. Respondent testified below at the pre-trial hearing on his motions to suppress evidence and to suppress his confession, but did not testify at the trial itself. The court denied his motions to suppress, and at trial his motions to exclude, on evidence reasonably tending to establish the sequence of events which follows.

Respondent, driving his car with three other passengers therein, was stopped at about 3:05 A.M., November 6, 1972, in Keene, New Hampshire, by Officer Saari of the Keene police force. The initial stop was occasioned by a defective taillight, since there had been a reported accident involving a car of similar description earlier in the evening. As the officer approached the car, he detected a smell of marijuana. Upon request, all of the occupants but one produced identification, along with respondent's auto registration and driver's license. While Officer Saari was making out his 'check slip' Sgt. Robinson arrived at the scene, noticed the rear of the car was sitting low, and asked to look into the trunk. At first respondent Harbaugh had no objection, but a screwdriver was sent for because the lock was broken. While waiting for the screwdriver to arrive, Sgt. Robinson talked with the occupants, and noticed discrepancies in their stories about where they had been and what they had been doing.

When the screwdriver arrived, respondent changed his mind, and refused permission to open the trunk. Sgt. Robinson then told him they would either do it there or go to the station for a warrant. During this period, the respondent informed the Sergeant, untruthfully as it developed, that he was under indictment for burglary in Rhode Island. Officer Saari gave respondent a 'defective equipment tag,' which was not a court summons or the basis for custodial arrest.

Sergeant Robinson then directed respondent to drive to the police station, which he did. The reason for this, according to the Sergeant, was because he thought the vehicle might have come from Canada with a quantity of drugs, or might contain evidence of a burglary. The four occupants were not arrested on any formal charges, but were held under the New Hampshire detention statute (N.H., R.S.A. 594:2) hereinafter treated.

At the police station, an inventory was taken of personal possessions. Based upon large amounts of change in coins, several hundred-dollar bills, two one-dollar bills with pin holes in the edges indicating they might have been a merchant's 'first dollars', plus wet shoes and pants, Detective Fish decided to apply for a search warrant for the car. The supporting affidavit outlined the matters above set out, plus seeing a large number of coins on the floor and seat of the car, learning all four occupants had prior criminal records for breaking and entering, and attachment of the number plate with wire so as to be easily removed. The smell of marijuana was not mentioned in the affidavit.

The search warrant was secured and executed shortly before 7:00 A.M., just within the period of the New Hampshire four hour detention statute. In the trunk were found various articles stolen earlier that evening from the Cobb and Harmon garage in Brattleboro, burglar tools, and some checks matching stubs left at the scene of the burglary. Up to that point, the Keene police were unaware of the actual burglary. They then contacted the Brattleboro police, and arrested respondent for possession of burglar tools. He was arraigned in new Hampshire that morning, and questioned later in the day by Brattleboro officers, about 3:00 P.M.

Before questioning the respondent, the Brattleboro officers gave him the Miranda warnings, except that (a) he was advised 'you cannot be compelled to answer and you have the right to refuse to answer any questions while you are in custody' instead of being specifically advised that he had the right to remain silent, (b) he was advised that he was entitled to talk to a lawyer before answering any questions, but not advised he was entitled to talk to a lawyer before any questions were asked, and (c) he was not advised that, if he decided to commence answering any questions, he could stop at any time.

After being advised under Miranda, with the exceptions set forth above, and upon being confronted with the check stubs found in his trunk and bearing the name and address of the burglarized garage, respondent knowingly and intelligently waived his rights, and gave the Brattleboro officers a full confession. Respondent in connection with other offenses, has been given Miranda warnings on two prior occasions.

Questions Presented

The questions involved in this appeal are not crisply presented by the parties, perhaps because of the state of flux involving these issues at the present time. Respondent notes three issues, and later briefs a fourth. The State notes six issues. By leave of court, the Attorney-General of New Hampshire has presented an amicus brief dealing with the New Hampshire detention statute, which we have found helpful. We analyze the claims of error presented to be substantially as follows:

1. Because of the unconstitutionality of the New Hampshire detention statute, the evidence secured during respondent's detention should have been suppressed, as well as the evidence garnered under the search warrant obtained as a result of that detention, under the general 'poisoned tree' exclusionary rules tracing back to Silverthorne, supra, and Wong Sun, supra.

2. Defendant's confession, obtained as the direct result of illegally obtained evidence, should have been excluded for the same general reasons.

3. Defendant's confession should also have been excluded as involuntary, because the warnings, as given, did not comply with the prophylactic requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

4. The trial court erred in refusing to submit the voluntariness of respondent's confession to the jury, as requested:

The New Hampshire statute

The New Hampshire statute here in question is Revised Statutes Annotated 594:2. In substance, it permits a peace officer to stop any person abroad whom he has reason to suspect has committed or is about to commit a crime, and to demand of him his name, address, business abroad and destination. If the person so stopped fails to identify himself and explain his actions to the satisfaction of the officer, he may be detained and further questioned and investigated. The total detention is not to exceed four hours, shall not constitute an arrest or be officially recorded as such, and at the end of the period the person detained shall be released unless arrested and charged with a crime.

Both the State, and New Hampshire, as amicus, question the propriety of our passing upon the constitutionality of the New Hampshire statute. A novel question is presented, and we are cited to no decisions determinative of our right to make such a determination. We are, in any event, reluctant to pass upon constitutional questions not necessary for a determination of the case presented. State v. Mecier, 126 Vt. 260, 227 A.2d 298 (1967). Since, in our view, resolution of this issue is not required, we can accord the New Hampshire statute no less cavalier a treatment than our own.

We think that the controlling issue here is not the constitutionality of the New Hampshire statute, as such, but the question of whether or not the Keene officers acted in good faith reliance upon its validity. Upon the record presented, we feel it a necessary conclusion that they did so act. While there is no square-cut decision upholding the validity of this statute, it has been litigated, without any holding that it is invalid. Hancock v. Nelson, 363 F.2d 249 (1st Cir., 1966), cert. den. 386 U.S. 984, 87 S.Ct. 1292, 18 L.Ed.2d 234 (1967). So has a similar Rhode Island statute. Lim v. Andruskiewicz, 360 F.Supp. 1077 (D.R.I1973). The similar Rhode Island statute has been also expressly upheld. Kavanagh v. Stenhouse, 93 R.I. 252, 174 A.2d 560 (1964). And, even absent a statute, a reasonable detention for questioning has been held not to be arrest, where the purpose is truly investigatory, and the police have good reason to believe person must be questioned further to determine whether he or any other person must be arrested. United States v. Vita, 294...

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    ...or punish that conduct.' People ex rel. Taylor v. Johnson, 47 Ill.2d 103, 105, 264 N.E.2d 198, 199 (1970); cf. State v. Harbaugh, 132 Vt. 569, 576, 326 A.2d 821, 825 (1974)." In re Saunders, 138 Vt. 259, 263, 415 A.2d 199 (1980). 16 This underscores the primacy of the right of the demanding......
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    ...139 N.J.Super. 201, 203-05, 353 A.2d 137, 139-40 (1976); Crafton v. State, 545 S.W.2d 437, 439 (Tenn.App.1976); State v. Harbaugh, 132 Vt. 569, 577-78, 326 A.2d 821, 826 (1974); State v. Cobbs, 164 Conn. 402, 416-19, 324, 244, cert. denied, 414 U.S. 861, 94 S.Ct. 77, 38 L.Ed.2d 112 (1973); ......
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    ...450 (S.D.1985); State v. Jennette, 706 S.W.2d 614 (Tenn.1986); Self v. State, 709 S.W.2d 662 (Tex.Crim.App.1986); State v. Harbaugh, 132 Vt. 569, 326 A.2d 821 (1974); Walls Commonwealth, 2 Va.App. 639, 347 S.E.2d 175 (1986); Fondren v. State, 724 P.2d 461 (Wyo.1986). 2 Other courts, or some......
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1 books & journal articles
  • Ruminations
    • United States
    • Vermont Bar Association Vermont Bar Journal No. 45-4, December 2019
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    ...[54] Preston v. Chabot, 138 Vt. 170, 185, 412 A.2d 930,938(1980). [55] Burlington Free Press, 3 August 1991, 5. [56] State v. Harbaugh, 132 Vt. 569, 573, 326 A.2d 821, 823(1974). [57] Woodmansee v. Stoneman, 133 Vt. 449, 455, 458-459. 344 A.2d 26, 29, 31 (1975). [58] Herbert v. Boardman, 13......

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