State v. Blow

602 A.2d 552, 157 Vt. 513, 1991 Vt. LEXIS 222
CourtSupreme Court of Vermont
DecidedNovember 1, 1991
Docket88-422
StatusPublished
Cited by46 cases

This text of 602 A.2d 552 (State v. Blow) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Blow, 602 A.2d 552, 157 Vt. 513, 1991 Vt. LEXIS 222 (Vt. 1991).

Opinions

Allen, C.J.

Defendant appeals his conviction of two counts of dispensing marijuana in violation of 18 V.S.A. § 4224(g) and one count of obstructing justice in violation of 13 V.S.A. § 3015. We reverse and remand on all counts.

On March 6, 1987, a police informant met with a Burlington detective and indicated that he could purchase drugs from de[515]*515fendant. He was then equipped with an electronic audio transmitter and transported to defendant’s residence, where he purchased marijuana. The detective monitored their conversation during the sale. The same procedure occurred five days later, with the same detective monitoring the conversations accompanying the sale. Defendant was later charged with two counts of dispensing marijuana to the informant. The obstruction of justice count was based on the informant’s allegation that on November 27,1987, defendant struck him for “ratting him out.”

Defendant’s pretrial motion to suppress the tape recordings of the transactions and the officer’s testimony about them was granted. The trial judge, however, later ruled that the recordings and testimony could be used at trial, and the detective testified about the conversations between the informant and defendant at the time of the sale. The recordings themselves were not introduced. The jury convicted defendant, and this appeal followed.

I.

We express, at the outset, our disapproval of the action of the trial judge in reversing the ruling of the motions judge. Although the error is not determinative of this appeal, we will explain the reasons for our disapproval because of the great importance of the issue and the need to clarify the relationship between pretrial and trial suppression motions.

Defendant moved to suppress evidence derived from the transmissions. The motions judge, after a hearing, prepared a well-considered opinion and order granting the motion. On the first day of trial in April of 1988, the State orally requested that the trial judge review the suppression decision “to determine whether or not the court would rule differently.” The trial judge decided that the pretrial ruling was wrong and reversed it, stating that “the trial judge is not bound by the decision of the pretrial judge.” No evidence was offered at the time of the later ruling. The evidence from the transmissions was then admitted at trial.

Motions to suppress are required to be filed pretrial “‘to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt.’ ” State v. Clark, [516]*516152 Vt. 304, 307, 565 A.2d 1332, 1334 (1989) (quoting Jones v. United States, 362 U.S. 257, 264 (1960)). Granting the motion to suppress makes the evidence inadmissible “at the trial or at any future hearing or trial.” V.R.Cr.P. 41(f). We have held that pretrial rulings are tentative and subject to revision at trial. State v. Baldwin, 140 Vt. 501, 514, 438 A.2d 1135, 1142 (1981); see also State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349, 351 (1985) (failure to object to admission of evidence at trial which defendant had sought to suppress in pretrial motion before another judge was waiver of objection).

Reconsideration by the trial judge, however, is appropriate only “in the face of additional evidence or other considerations developing during trial of the case which might otherwise dictate a modification or a reversal of the preliminary rulings.” Baldwin, 140 Vt. at 514, 438 A.2d at 1142. Our policy of requiring additional evidence or other objective considerations as a predicate to reconsidering a pretrial suppression ruling is even stronger where the pretrial suppression motion is granted. As the court stated in McRae v. United States:

[I]t would blink reality to ignore the disparate position of the state and the accused before trial. . . .
. . . Since the Government is more able than the defendant to insure a full and fair resolution of any issue ... at a pretrial proceeding, there is commensurately less reason to allow the prosecutor to request a reappraisal of a suppression order.

420 F.2d 1283, 1287-88 (D.C. Cir. 1969).

The likelihood of prejudice under the circumstances presented in this case was great. The motion to reconsider, made at a hearing on another motion just prior to jury draw, was oral. There was no presentation of grounds or new evidence. Moreover, the State had the opportunity to request reconsideration by the motions judge and appeal the pretrial suppression ruling under 13 V.S.A. § 7403. The trial court erred in reversing the original order.

We decline, however, to reverse on this ground because it was not raised before the trial court. In fact, while urging the trial court to adhere to the earlier ruling, defendant’s counsel [517]*517conceded that “the State can bring [the suppression motion decision] up again.” He argued the merits of the suppression issue, but did not suggest that reconsideration of the motion was foreclosed. In the absence of plain error we will not consider the issue for the first time on appeal. State v. Stanislaw, 153 Vt. 517, 528, 573 A.2d 286, 292-93 (1990).

II.

Defendant does not contend that the Fourth Amendment to the United States Constitution protects him against warrant-less electronic surveillance by a participant to a conversation with him who consents to the use of the surveillance. See United States v. Caceres, 440 U.S. 741, 750-51 (1979), relying on United States v. White, 401 U.S. 745, 751 (1971). Rather, the argument is that such surveillance is prohibited by Chapter I, Article 11, of the Vermont Constitution, which provides:

That the people have a right to hold themselves, their houses, papers, and possessions, free from, search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.

A determination that the police activities amount to a prohibited search or seizure under Article 11 depends on whether the defendant conveyed an expectation of privacy in such a way that a reasonable person would conclude that he sought to exclude the public. State v. Kirchoff, 156 Vt. 1, 9-11, 587 A.2d 988, 994 (1991). As Justice Harlan stated in his concurrence in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring), the test requirements are “first that a person ha[s] exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”

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Bluebook (online)
602 A.2d 552, 157 Vt. 513, 1991 Vt. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-blow-vt-1991.