State v. McDermott
| Decision Date | 01 February 1977 |
| Docket Number | No. 67-76,67-76 |
| Citation | 135 Vt. 47,373 A.2d 510 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. John Edward McDERMOTT, Jr. and Eric Carlton Sallisky. |
Raymond G. Bolton, Bennington County State's Atty., and Michael O. McShane, Deputy State's Atty., Bennington, for plaintiff.
Joseph M. O'Neill, Rutland, for defendants.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
This is an appeal from the judgments entered as a result of jury verdicts of guilty in two criminal prosecutions in the District Court of Vermont, Unit No. 1, Bennington Circuit for violation of 13 V.S.A. § 1026(2), disorderly conduct by unreasonable noise.
During the early morning hours of July 6, 1975, a Vermont state policeman was investigating a false report in an area of Crow Hill in Arlington, known as the Sallisky compound. The so-called Sallisky compound is a group of residences occupied by families related by blood or marriage and served by a common access road.
At approximately 3:00 a. m., as he was driving out of the Sallisky compound, the officer observed two men standing on the lawn of a residence in front of and in the headlights of a vehicle with Connecticut registration plates. He was familiar with the area and did not recognize the individuals. He was also aware of incidents of vandalism in the area.
The officer stopped his cruiser, rolled down the window and inquired what the two individuals were doing. The defendants refused to answer the question and responded loudly with obscenities. The officer radioed for assistance and got out of the cruiser to repeat his question as to what the defendants were doing and also requested that they identify themselves, which met with the same response.
A second state policeman soon arrived, the questions were repeated, the responses were the same. The defendants were then arrested. Evidence was introduced that physical force was necessary to effect the handcuffing of the defendants to transport them to the Bennington lockup.
The two defendants were charged by an information with violation of 13 V.S.A. § 1026(2) and 7 V.S.A. § 660, public intoxication. The second charge was dropped by the Bennington County State's Attorney.
The defendants assert that the trial judge should have granted their motion for acquittal or in the alternative granted a new trial. They argue that the state police officers' conduct constituted an illegal stop and seizure because it was without reasonable or probable cause and therefore the subsequent arrest for disorderly conduct must be suppressed as the 'fruit' of the impermissible seizure.
The so-called 'stop and frisk' case, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) states the general rule governing stops and seizures. A police officer has the power, consistent with the Fourth Amendment, to stop and question a suspicious person, even without probable cause for arrest. Whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person. The applicable standard for evaluating the reasonableness of the police officer's actions is the scope of the intrusion and the circumstances existing at the time of the stop.
The defendants urge that the stop and seizure were unreasonable because they were on private property and because the police officers were not responding to any complaint. Thus, the officer had no right to inquire of them and they had no obligation to respond. They argue that, while their language was perhaps affronting to the officer's sensibilities towards the dignity and authority of his office, it did not justify the stop and seizure from which the arrests arose.
We believe the reasonable view of all the facts was that the officer's inquiry from the cruiser was appropriate and reasonable. It was 3:00 a. m. in a rural residential area where there were previous incidents of vandalism. The police officer, familiar with area residents, observed two individuals, whom he did not recognize, doing something on the lawn of a residence in the illumination of the headlights of a car bearing out-of-state registration plates. The inquiry was appropriate and effective crime detection and prevention.
While good judgment and courtesy might have dictated another course, we concur that the defendants were not obligated to produce identification or explain their presence. Terry v. Ohio, supra, at 34, 88 S.Ct. 1868 (White, J., concurring opinion). However, that refusal under the reasonable circumstances of the initial inquiry might and did promote further inquiries. We also agree that the presence of the armed officers under the circumstance of their repeated inquiries did restrain the defendants' movements to such a degree to constitute a seizure.
It is clear that the defendants' 'fruit' of the illegal stop argument fails because the stop and temporary seizure were not constitutionally impermissible. Further, the arrests for disorderly conduct were not the 'fruits' of the stop, but rather it was the actions of the defendants during the inquiry which provided an independent basis for arrest. V.R.Cr.P. 3(a).
We do not reach the defendants' third contention that 13 V.S.A. § 1026 is unconstitutionally vague on its face. There are fatal defects in the information and proof.
13 V.S.A. § 1026 is a statute framed in the disjunctive. Its five subsections enumerate specific acts which constitute disorderly conduct if entered into with the intent to cause public inconvenience and annoyance or if they recklessly create a risk of public inconvenience and annoyance.
The information charged the defendants in the conjunctive, '. . . was then and there a person with the intent to cause public inconvenience and annoyance and to recklessly create a risk thereof did make unreasonable noise, to wit: shouted obscenities at 3:00 A.M., all in violation of 13 V.S.A. § 1026(2).' (emphasis added).
Statutes may define an offense by two or more separate acts or transactions in the disjunctive. The prosecutor must frame his charge in the pleading in such a manner as to meet two general requirements: to properly give...
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...See Mark A. Gruwell, The First Amendment Strikes Back: Amplified Rights, 31 Stetson L.Rev. 367, 379 (2002); see also State v. McDermott, 135 Vt. 47, 373 A.2d 510, 514 (1977) (suggesting that "unreasonable noise" connotes an objective standard as distinguished from the subjective "unnecessar......
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