State v. White, 33-70
| Decision Date | 02 February 1971 |
| Docket Number | No. 33-70,33-70 |
| Citation | 129 Vt. 220,274 A.2d 690 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Eddie WHITE |
James M. Jeffords, Atty. Gen., and William T. Keefe, Asst. Atty. Gen., for plaintiff.
Gerard F. Trudeau, Middlebury, for defendant.
Before HOLDEN, C. J., BARNEY, SMITH and KEYSER, JJ., and HILL, superior judge.
The respondent is charged with unlawful possession of regulated drug, cannabis sativa (marijuana), on November 20, 1969, at Salisbury, Vermont, in violation of 18 V.S.A. § 4224(a). On arraignment respondent entered a plea of not guilty. Bail was fixed and furnished. Subsequently, the respondent filed various motions which the court denied after hearing. A jury was drawn on January 6, 1970, who heard the case on March 10 and 11 and returned a verdict of guilty.
On November 25, 1969, the respondent filed a motion 'to suppress all evidence and return all things whatsoever unlawfully obtained from respondent or in his possession by law enforcement officials on 20 November and 21 November 1969, said evidence and things having been obtained unlawfully and in violation of respondent's Federal and State Constitutional rights by means of fraud, deceit, misrepresentation, subterfuge, entrapment, concealment of material facts and by the use of false names and addresses by the said law enforcement officials.' The court, Dier, District Judge, presiding, heard the motion on December 3, 1969. Evidence was taken by the court on the motion but the respondent did not testify. Neither the transcript nor the record show that findings of fact on the motion were made or that the motion was disposed of by the court.
On January 6, 1970, a jury was empanelled to hear the case but trial did not occur until March 10 and 11. At that time due to the illness of Judge Dier, the Court Administrator appointed a member of the Vermont Bar as acting District Judge. Respondent again renewed his motion to suppress and, after taking evidence out of the presence of the jury, the court denied the motion. The respondent did not testify at any stage of the trial.
The evidence in chief offered at the trial taken in the light most favorable to the state shows the following facts.
On November 20, 1969, a state police officer assigned to narcotics undercover work, while driving his car in Rutland City, saw the respondent hitch-hiking on North Main Street. The respondent thumbed for a ride and the officer picked him up in his car. The officer was driving an unmarked with Rhode Island plates attached. He had long hair, sideburns and a beard and was dressed in casual clothes with no indication he was a police officer. The officer identified himself by using the fictitious name of Paul Wilbur. He told respondent he was unemployed at a ski resort and was on his way to Burlington. The intention of the officer in giving the respondent a ride was to obtain intelligence information relating to drug activity.
Some conversation ensued between the two parties. The respondent brought up the subject of drugs during which he advised and officer he was going to Salisbury and if he would give him a ride there he, the respondent, would 'lay some grass' on him. This meant he would give the officer some marijuana.
The respondent directed the officer to a farm in Salisbury, owned by people named Neifosh, where he claimed to live. The respondent asked the officer to come inside and he would give him the 'grass' there. He was also invited in by Mrs. Neifosh and indentified himself to her as 'Paul Wilbur.' White led the officer to his bedroom where he had his belongings. The respondent then opened a bureau drawer and produced a small bag of marijuana. He placed a small amount of the marijuana on a piece of paper, wrapped it aup and gave it to the officer who left the house shortly afterwards.
The officer recognized the substance given to him by White as marijuana and later he confirmed this by making a chemical test at the police barracks.
The respondent's first contention is that he was subjected to interrogation by subterfuge while in or under custody or constructive custody of the officer while riding in his automobile without having been advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.
The undisputed testimony of the officer shows that the respondent was being given a ride which he had voluntarily asked for by 'thumbing.' He further testified that while they were riding the respondent brought up the subject matter of drugs and voluntarily offered to 'lay some grass' on him if he would give him a ride to Salisbury.
This situation did not deprive the respondent of his freedom of action in the concept of the Miranda case, supra, as respondent claims. The officer testified that the respondent was 'free to leave the car at any time he requested it.' The fact that the respondent did not know that 'Paul Wilbur' was a narcotics agent could not generate in him any feeling of coercion either mental or physical. And the respondent was not under investigation by the agent for, or as suspect of, any criminal violations. The record does not disclose any evidence of compulsion to induce the respondent to make self-incriminating statements concerning his possession of marijuana.
We find no testimony to support the theory of custodial interrogation and none is pointed out to us in respondent's brief. The Miranda warnings on the facts in this case were not required.
The second issue raised by the respondent is whether the officer's purpose in inducing the respondent to admit him to the Neifosh residence by the utilization of a false name, etc. (sic) and other subterfuges was primarily to make a search rather than an arrest.
The respondent's argument on this issue cites law which deals with the situation where property is unlawfully seized, and with unreasonable search and seizure. In making this argument the respondent assumes that the narcotics agent did enter the house unlawfully and seized the marijuana.
But this is not the situation shown by the evidence. The undisputed evidence is that the respondent expressly invited the officer into the house and voluntarily gave him the marijuana. There is nothing in the evidence indicating any implication that coercion was exerted upon the respondent or that overbearing pressures were responsible for his self-incriminating conduct.
On the facts and circumstances established by the evidence, this case does not fall within the category of an unreasonable search and seizure. There is no evidence that the primary purpose of the agent was to make a search or that he in fact did make, or attempt to make, a search.
The bare fact that the agent was working under an assumed name does not constitute fraud. We have found no affirmative fraud or misrepresentation in the record inducing the respondent to invite the agent into his room and give him the marijuana.
This exception is without merit.
The respondent next argues the issue of entrapment-that is, whether it is a defense raised by a not guilty plea and should have been submitted to the jury. Entrapment has been defined as the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him. 21 Am.Jur.2d Criminal Law, § 143, p. 211. Here it cannot...
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