State v. Murray

• Decision Date: 03 February 1976
• Docket Number: No. 78-75,78-75
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Steven J. MURRAY.

Page 351

353 A.2d 351

134 Vt. 115

STATE of Vermont v. Steven J. MURRAY.

No. 78-75.

Supreme Court of Vermont.

Feb. 3, 1976.

Richard G. English, Addison County State's Atty., Middlebury, for plaintiff.

Robert Edward West, Defender Gen., and Robert M. Paolini, Deputy Defender Gen., Montpelier, for defendant.

Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.

LARROW, Justice.

The respondent appeals his conviction below for burglary, claiming it resulted from an unreasonable search and seizure. The issue raised is the 'station house search' without warrant of an automobile in which respondent had been a passenger when it was stopped on the highway. A silver wedding bell taken in the burglary was found in the auto glove compartment, and admitted as an exhibit on trial.

Only because the parties are in substantial agreement with respect to all the relevant facts are we able to dispose of the issue presented. Beyond the docket notation that respondent's motion to suppress, heard at the omnibus hearing, was denied by the court the day before the matter went to trial, we have no record except the transcript. This was not in compliance with the provisions of V.R.Cr.P. 12(d), providing that where factual issues are involved in determining a motion the court shall state its essential findings on the record. The rule has a definite purpose. Although less rigorous than the requirement of V.R.Cr.P. 23(c) for findings of fact where a case is tried by court, it is intended to insure a record on appeal which delineates the factual basis on which the ruling of the court was made. The agreement of the parties here as to the facts precludes any claim of prejudice in the instant case, but we note that such agreement between the parties, particularly in a criminal case, is the exception rather than the rule. The statement of essential findings for the record is an important requirement which should not be overlooked or disregarded by the trial court.

Since each case of this nature turns on its particular facts, a summary of the events leading to seizure of the silver bell is required.

On January 14, 1975, the home of Russell Nason in Weybridge, Vermont, was burglarized, with the bell being one of a number of articles stolen. On the night of January 21, 1975, Trooper Michael Leclair was outside the State Police barracks when a green van went by, revving up its engine. He decided to check it out, followed it about three quarters of a mile, and because of the manner of its operation, decided to stop it to check the driver for suspected driving while intoxicated. As he approached the vehicle, he shone his flashlight through the rear doors, and saw three pillowcases containing glassware and silverware. He believed these to be stolen, because of a reported burglary where pillowcases had been taken, and because of information from an unnamed informant that respondent and one Gibeault, the driver of the van, had been involved in some prior breakings. Although at one time Gibeault agreed to a search of the van, he quickly changed his mind before the actual search occurred, and the State here makes no claim that there was an effective consent to search.

At the scene, the rear door of the van was opened and it was observed, by flashlight, that the pillowcases were full of glassware and silverplate. They were not removed from the van. On questioning, Gibeault stated these items were 'a bunch of garbage' given him by his father.

Appellant was frisked, and arrested for possession of a 'hash pipe' and marijuana. Both he and Gibeault were detained and taken to the station, with Gibeault, interestingly enough, being permitted to drive the van although being detained for driving while intoxicated. At the station, Gibeault's father was called, and denied giving his son any property. A thorough search of the van was then conducted, and the silver bell in question was found in the glove compartment. It was identified, from a photo, as the one stolen from the Nason residence.

As with each one of the increasingly frequent search and seizure cases which are coming before us, it would be possible to write an extensive review of the judicial history of this clause of the fourth amendment. Such a review would not, however, resolve all of the uncertainties engendered by the successive opinions on the subject. Cf. dissent of Stewart, J., in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

Without attempting to chart the future course of judicial decision, we are convinced that the search here without a warrant was justified. If it was a lawful search on the highway, the subsequent search at the station was also lawful. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Cf. also United States v. Carneglia, 468 F.2d 1084 (2d Cir. 1972). Although Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) seems to hold the 'automobile exception' inapplicable where...