2013 VT 5


State v.
Hawkins (2011-203 & 2011-384)
 
2013 VT 5
 
[Filed 18-Jan-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 5 

 

Nos. 2011-203 & 2011-384

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Essex Unit,


 


Criminal Division


 


 


Jerald Hawkins


April Term, 2012


 


 


 


 


M.
  Kathleen Manley, J. (2011-203)
Robert P. Gerety,
  Jr., J. (2011-384)


 

William H. Sorrell, Attorney General, and John Treadwell and
David Tartter, Assistant
  Attorneys General, Montpelier, for Plaintiff-Appellee.
 
Kyle C. Sipples
of Zuccaro, Willis & Sipples,
P.C., St. Johnsbury, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund,
Burgess and Robinson, JJ.
 
 
¶ 1.            
BURGESS, J.  Defendant Jerald Hawkins appeals from his
conditional guilty plea to criminal refusal of an evidentiary breath test in
violation of 23 V.S.A. § 1201(b)(1) and the civil
suspension of his driver’s license, claiming that the trial court erred in
denying his motion to suppress evidence.  Defendant argues that he was
arrested without probable cause in violation of the Fourth Amendment of the
United States Constitution and Article 11 of the Vermont Constitution. 
Alternatively, he argues that, even if supported by probable cause, the arrest
violated the Fourth Amendment and Article 11 due to excessive force. 
Defendant urges, further, that statements he made to police were obtained in
violation of his rights under the Fifth Amendment of the U.S. Constitution and Miranda
v. Arizona, 384 U.S. 436 (1966), as well as Article 10 of the Vermont
Constitution.  Defendant also contends he was entitled to judgment in the
civil license suspension proceeding because the final hearing did not take
place within the mandatory timeframe.  We reverse in part, and remand.
¶ 2.            
The facts, drawn from the trial court’s findings, are as follows. 
On October 10, 2009, at about six p.m., an Essex County deputy sheriff clocked
defendant driving sixty-five miles per hour in a fifty-miles-per-hour zone
along Route 102 in Maidstone.  The deputy turned
on his blue lights, but not his siren, and went after
defendant.  Before the deputy could catch up to him, defendant turned left
onto Lovell Road, a private driveway serving a single camp.  The deputy
followed onto Lovell Road and saw that defendant’s car was stopped. 
Defendant then resumed driving and, at a speed of about twenty-five miles per
hour, crossed a washed-out part of the driveway that was about ten to twelve feet
across and one to three feet deep, which caused defendant’s car to bottom
out.  Cautious of the road’s condition, the deputy did not follow, and, at
some point, got out of his cruiser.  Defendant drove another forty yards,
eventually stopping some distance before a gate that blocked further
travel.  
¶ 3.            
Defendant got out of his car and began walking back toward the deputy
sheriff, who was about sixty to seventy-five yards away.  Defendant walked
with a “shuffling” gate, but did not say or do anything threatening, and kept
his empty hands visible.  At this point, for what he characterized as
“reasons of officer safety,” the deputy drew his gun and ordered defendant to
get on his knees, face away from him, and place his hands on his head.  Defendant
was handcuffed, put in the cruiser, and taken to the St. Johnsbury Police
Department.  While taking defendant to his cruiser, the deputy smelled
alcohol on defendant’s person and, during the trip to the police station, he
observed that defendant had bloodshot eyes and spoke with slurred speech. 
At no point, however, did the deputy request that defendant
perform field sobriety exercises, nor, prior to arriving at the station,
did the deputy ask defendant any questions about alcohol consumption.
¶ 4.            
At the station, the deputy sheriff processed defendant for driving under
the influence of alcohol.  He started by asking defendant the preliminary
questions found at page one of the standard DUI processing form, including
whether defendant had consumed any alcoholic beverages, how long it had been
since his last drink, and how much he had drunk in the last thirty
minutes.  Turning to page two of the form, the deputy advised defendant of
his Miranda rights before asking any further questions.  Defendant
signed a waiver of these rights and answered the questions at the bottom of
page two concerning further details about drinking alcohol relative to time of
operation.  The deputy then advised defendant of his rights and
obligations under Vermont’s implied consent law, including his right to consult
with an attorney before deciding whether to give an evidentiary breath
sample.  Defendant declined to speak with an attorney and refused to
submit to a breath test.   
¶ 5.            
Defendant was charged with criminal refusal of an evidentiary breath
test in violation of 23 V.S.A. § 1201(b)(1). 
Defendant moved to suppress all evidence obtained after the deputy drew his
weapon, ordered defendant to his knees, and handcuffed him.  He argued
that the deputy’s actions constituted an unlawful arrest and that therefore all
evidence gained as a result of that arrest should be suppressed. 
Defendant also argued that his answers to the questions on the DUI processing
form should be suppressed because they were acquired in violation of his Miranda
rights.  Defendant maintained that he was in custody for Miranda
purposes upon being handcuffed at gunpoint and thus was entitled to Miranda
warnings before being questioned.  He further asserted that the unlawful
questioning before the warnings rendered the subsequent Miranda warnings
ineffective, so that his statements following the warnings should also be
suppressed.  The State countered that there was probable cause to arrest
defendant for impeding a public officer in violation of 13 V.S.A. § 3001
and for negligent operation of a motor vehicle in violation of 23 V.S.A.
§ 1091(a) due to his crossing the washed-out section of the driveway so as
to cause his car to bottom out.  The State contested suppression of its physical
evidence, and challenged suppression of defendant’s statements made after Miranda
warnings were delivered.    
¶ 6.            
Filed contemporaneously with the criminal case was the State’s civil
action to suspend defendant’s license to drive.  The parties appeared for
a preliminary hearing on October 29, defendant’s arraignment date, and a final
hearing was set for November 19, 2009, forty days after the alleged offense and
twenty-one days after the preliminary hearing.  Defendant moved for a
continuance in order to depose the deputy, stating that defendant “waiv[ed] any time requirements
affected by this continuance.”  The continuance was granted and the final
hearing rescheduled for January 25, 2010.    
¶ 7.            
The trial court initially granted the motion to suppress all evidence
against defendant on March 16, 2010, and dismissed the civil suspension
action.  Agreeing that defendant was arrested upon being handcuffed at
gunpoint, the court determined that the arrest was unsupported by probable cause
since there was no evidence of impeding the officer, and no evidence that the
supposed careless driving occurred on a “public highway” as required for the
crime of negligent operation, rather than on a private driveway.  23
V.S.A. § 1091(a)(1).  Looking to defendant’s
post-arrest statements, the court concluded that the Miranda warnings
could not purge the taint of the underlying illegal arrest.
¶ 8.            
Moving for reconsideration, the State argued that the court erred in failing
to deem the driveway a public highway as broadly defined for the offense of
negligent operation.  See 23 V.S.A. § 4(13).  After a
continuance requested by defendant, the reconsideration hearing set for June
was reset for July, and decided on August 10, 2010.  Upon reconsideration,
the court reversed its prior decision, explaining first that the pertinent
statutory definition of public highway included the camp driveway here and,
second, that the question of negligence would be left for trial since the court
could not hold that defendant’s drive across the wash-out was not negligent as
a matter of law.  Finally, it concluded that “[a]lthough
there was overlap between the pre- and post-Miranda questioning and
there was no break, reviewing the totality of the circumstances, there is no
evidence that the post-Miranda statements were involuntary, ineffective,
or coerced.”  The civil suspension action was reinstated.  Defendant
responded with his own motion to reconsider, which was denied on February 1,
2010.
¶ 9.            
Final hearing on the civil suspension was convened almost three months
later on April 29, 2010.  On April 15, defendant had interposed a motion
to dismiss for failure to hold the final hearing, as required by the statute,
“within 21 days of the date of the preliminary hearing” and
“no later than 42 days after the date of the alleged offense.”  23 V.S.A.
§ 1205(h)(1).  Defendant compared the date
of the court’s last pre-trial ruling on February 1 to the final hearing date of
April 29, noting that “[t]his period alone is greater than twenty-one
days.”  His motion to dismiss was taken under advisement by the trial
court pending a decision on the merits, which, delivered from the bench,
determined the State met its burden of proof for license suspension.  
¶ 10.         The
motion to dismiss was next denied.  Acknowledging the statutory deadlines,
the court noted that the same statute allowed that the “final hearing may only
be continued by the consent of the defendant or for good cause shown.”  Id. 
Understanding defendant’s motion to dismiss as proposing a resurrection of the
deadlines upon completion of interim motions, the court observed that defendant
offered no authority in support of deadline reinstatement.  Instead, the
court treated defendant’s continuance request and accompanying waiver of the
time requirements as the consent necessary to exceed the deadlines under
§ 1205(h)(1).  Upon judgment for the State
in the civil suspension action, defendant entered his conditional plea to the criminal
charge and appealed in both cases.
¶ 11.         There
is no dispute that defendant initially waived the deadline, and the issue of
the deadline’s revival is a question of law that we examine de novo on
appeal.  See Smith v. Desautels, 2008 VT
17 ¶ 12, 183 Vt. 255, 953 A.2d 620 (“[S]tatutory
construction . . . is a pure
question of law.”).  Defendant reiterates, correctly, that the
forty-two-day limitation is not merely directory, but mandatory.  This
much was confirmed in State v. Singer, cited by defendant, where the
Court found to be mandatory the requirement expressed in the § 1205(h)
proviso that “[i]n no event may a final hearing occur
more than 42 days after the date of the alleged offense without the consent of
the defendant or for good cause shown.” 170 Vt. 346, 348-49,
749 A.2d 614, 616 (2000).  The next sentence of the statute adds,
as if to emphasize, that the “final hearing may only be continued by the
consent of the defendant or for good cause shown.”  23 V.S.A.
§ 1205(h)(1).  
¶ 12.         As
below, no authority is presented on appeal to support deadline revival. 
The statute does not say what defendant desires.  Nothing in the
legislative language reflects a design for the deadline to recur at any point
following a continuance with defendant’s consent.  That the final hearing
did not occur within either twenty-one or forty-two days of the last pretrial
decision is immaterial to the statutory mandate.  The proposition that the
deadline calendar should run again after the last pretrial motion is decided
results only in a moving target in any event, since yet another motion cannot
necessarily be precluded and the last decision could, depending on complexity,
take days or months to issue.  Defendant’s proposed reintroduction of the
statutory deadline after his waiver is declined.      
¶ 13.         We
next address defendant’s claim that the court erred in concluding that there
was probable cause to arrest for negligent operation under 23 V.S.A.
§ 1091(a).  We review the court’s decision with a mixed standard of
review.  State v. Arrington, 2010 VT 87, ¶ 7, 188 Vt. 460, 8 A.3d 483.  We review the court’s factual findings for
clear error and its legal conclusions de novo.  Id.  
¶ 14.         Defendant
does not challenge the trial court’s findings, but contends that the facts do
not support probable cause as a matter of law.  Defendant undertakes a
three-part assault on the probable cause issue.  First, he argues that the
private driveway in this case was not a “public highway” as required by 23
V.S.A. § 1091(a).  Next, he asserts that he did not drive his car in
a “negligent manner” as defined by the statute because he endangered no
property or person of another.  Finally, he submits that he was not
negligent in driving over the washed-out portion of the driveway. 
Defendant is correct on his last point, so we do not address the first two.
¶ 15.         It is
undisputed that defendant was arrested when the deputy sheriff drew his gun, ordered defendant to his knees, and handcuffed
him.  See State v. Chapman, 173 Vt. 400, 403-06, 800 A.2d 446,
449-51 (2002) (concluding that defendant was placed under de facto arrest
without probable cause because officer drew weapon without reasonable belief
that defendant had committed or was committing crime).  Under the Fourth
Amendment and Article 11, a warrantless arrest must be supported by probable
cause.  See Arrington, 2010 VT 87, ¶ 11.  Probable cause
“exists when the facts and circumstances known to an
officer are sufficient to lead a reasonable person to believe that a crime was
committed and that the suspect committed it.”  Id. (quotation
omitted).
¶ 16.         The
trial court denied suppression on the ground that the officer had probable
cause to arrest defendant for negligent operation of a motor vehicle in
violation of 23 V.S.A. § 1091(a)(1).  See V.R.Cr.P.
3(b) (authorizing arrest without warrant for misdemeanors committed in presence
of police).  Section 1091(a) proscribes the “operat[ion] [of] a motor
vehicle on a public highway in a negligent manner.”  It further provides
that “[t]he standard for a conviction for negligent operation . . . shall
be ordinary negligence, examining whether the person breached a duty to
exercise ordinary care.”  23 V.S.A. § 1091(a)(2). 
“Ordinary care” is the level of care exercised by a “careful and prudent”
person under like circumstances.  Boutwell v. Champlain Realty Co., 89 Vt. 80, 90, 94 A. 108, 113
(1915).  The court’s finding of probable cause, framed by the State’s
motion for reconsideration, was based on defendant “operating his vehicle at
approximately 25 mph across the washed-out section of road and bottoming
out.”  The crux, therefore, is whether defendant’s driving of his car over
a rocky, uneven, dirt patch in an unpaved Vermont driveway at this speed could
constitute the type of carelessness that would support a conviction for
negligent operation.  
¶ 17.         Guided
by common experience, we agree with defendant that, as a matter of law, driving
over the washout as described was not negligent, so there was no probable cause
to arrest him for negligent operation.  Unpaved roads, including
driveways, are commonplace throughout Vermont, including Essex County.[1]  These roads are often primitive and
rough.  Over the seasons, they are topped with dirt, snow, ice, and
mud.  They are studded with rocks and frost heaves, pitted with potholes,
wrinkled with washboards, and, worn by weather and trucks, left uneven and, in
places, washed-out.  To deliberately travel over such roads is a reality
of Vermont life, not a rash decision.  
¶ 18.         Viewed
another way, the court’s decision would mean that every time a public highway
in this condition is so used a crime could be charged, and any driver operating
on a back road in March would risk prosecution.  Such an application of
the statute is too broad, and no reasonable jury could find negligence on these
facts.  See State v. Free, 170 Vt. 605, 606, 749 A.2d 622, 624
(2000) (stating “where reasonable minds cannot differ” court can decide as
matter of law whether defendant is guilty of grossly negligent operation of
motor vehicle); see also LaVallee v. Vt.
Motor Inns, Inc., 153 Vt. 80, 85, 569 A.2d 1073, 1075 (1989) (explaining
that trial court properly considered evidence of motel industry’s “practice and
custom” in determining whether motel was negligent for failure to provide
sufficient emergency lighting); Restatement (Second) of Torts § 295A
(1965) (“In determining whether conduct is negligent, the customs of the
community . . . are factors to be taken into account, but
are not controlling where a reasonable man would not follow them.”). 
Defendant’s estimated speed of twenty-five miles per hour does nothing to
change this conclusion since there was no evidence that his speed was excessive
under the circumstances, or unnecessary to traverse the washout as he
did.  The trial court erred, therefore, in concluding that the physical
condition of the driveway, coupled with defendant’s estimated speed, could
support what amounts to a prima facie case that defendant operated his car in a
negligent manner in violation of § 1091(a).  Because these facts
could not constitute negligent operation, his arrest on that basis was unlawful. 
Defendant’s statements to the deputy in the course of subsequent interrogation
were the product of that unlawful arrest and consequently must be suppressed.[2] 
¶ 19.         The
question nevertheless remains whether the physical evidence obtained after
defendant’s unlawful arrest need also be suppressed as fruit of the poisonous
tree.  Evidence obtained in violation of the Fourth Amendment and Article
11, or “by exploitation” of a violation, is inadmissible against a criminal defendant. 
Wong Sun v. United States, 371 U.S. 471, 488 (1963); State v. Pitts,
2009 VT 51, ¶ 19, 186 Vt. 71, 978 A.2d 14 (explaining that Article 11 provides
protection equal or greater than Fourth Amendment); State v. Badger, 141
Vt. 430, 452-53, 450 A.2d 336, 349 (1982) (“Evidence obtained in violation of
the Vermont Constitution, or as a result of a violation, cannot be admitted at
trial as a matter of state law.”).  There is a general presumption that
evidence obtained after an illegal arrest is the tainted product of unlawful
government action. See United States
v. Crews, 445 U.S. 463, 471 (1980) (explaining that where evidence is
seized after Fourth Amendment violation “most cases
begin with the premise that the challenged evidence is in some sense the
product of illegal governmental activity”).  
¶ 20.         The question in most cases, therefore, is “whether the chain
of causation proceeding from the unlawful conduct has become so attenuated or
has been interrupted by some intervening circumstance so as to remove the
‘taint’ imposed upon that evidence by the original illegality.”  Id.;
Badger, 141 Vt. at 440, 450 A.2d at 342 (stating that second
relevant inquiry in fruit of poisonous tree analysis is “whether intervening
events break the causal chain and dissipate the effect of the taint”).  The temporal closeness between the arrest and the subsequent
acquisition of evidence is also of prime importance.  See Brown
v. Illinois, 422 U.S. 590, 603 (1975) (explaining that “temporal proximity
of the [unlawful] arrest and the confession [and] the presence of intervening
circumstances” are factors in fruit of poisonous tree
analysis).  In Brown, for example, the U.S. Supreme Court held that
a defendant’s custodial statements made following his unlawful arrest should
have been suppressed, reasoning primarily that less than two hours passed
between his illegal arrest and first statement and that there was no
intervening event.  422 U.S. at 604-05; see also Knaupp
v. Texas, 538 U.S. 626, 633 (2003) (concluding that defendant’s confession
should have been suppressed where no “substantial time passed between [his]
removal from his home in handcuffs and his confession after only 10 or 15
minutes of interrogation”).
¶ 21.         The
determination of probable cause to arrest for negligent operation is
reversed.  The trial court has yet to consider if the State met its burden
to show that whatever physical evidence, including his refusal to submit to a
breath test, was not acquired by the deputy in exploitation of defendant’s
unlawful arrest.  See Brown, 422 U.S. at 604 (holding that it is
for State to show that its evidence was not fruit of poisonous tree under Wong
Sun). Accordingly, we remand for findings and a determination, based on the
existing record evidence, on defendant’s motion to suppress all physical
evidence obtained following his arrest. 
           
Affirmed as to the denial of defendant’s motion to dismiss the civil
suspension action; reversed and remanded on the remaining motion to suppress.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice
 

 





[1]
 According to the Vermont Agency of Transportation, in 2008 there were
7930 miles of traveled dirt roads in Vermont, as compared with 7040 miles of
paved roads.  Mapping Unit-General Interest Stats,
Vermont Agency of Transportation, Public Paved and Dirt Roads Statewide,
http://www.aot.state.vt.us/planning/mapgis/mapping_stats.htm.  In a
report dated November 2010, Essex County had 225 miles of traveled dirt roads,
versus 163 miles of paved roads, while the Town of Maidstone
had 12 miles of dirt roads, versus 8 miles of paved roads.  Paved and Dirt
Roads Report by County, Vermont Agency of Transportation, http://www.aot.state.vt.us/Planning/Documents/Mapping/Publications/Surface_byCounty.pdf
Paved and Dirt Roads Report by County and Town, Vermont Agency of
Transportation,
http://www.aot.state.vt.us/Planning/Documents/Mapping/Publications/Surface_byCountyTown.pdf. 
The county and town figures post-date defendant’s arrest by more than a year,
but, assuming no paved roads replaced dirt roads during that time, it would be
safe to presume that there were at least as many dirt roads in Essex
County and Maidstone in October 2009 as in November
2010.


[2] 
We do not address whether statements taken in violation of Miranda and
the Fifth Amendment are suppressible in the civil suspension proceeding as
well.



