*1 ever, also hold that the of limita- Pittsfield, Ill.App. statutes Nat. Bank of begin against tion do not to run remain- N.E.2d 63-64 of the life expiration dermen until the Adm’r, supra, 232 S.W. In Shutt’s estate; so, necessarily which is because bar, one at the court a case not unlike the tenant, of a life or of one possession could not appellant held that the latter, cannot, during holding under the “* * * the re- recovery by defeat estate, be ad- the continuance of the life by his money received maindermen of the several verse to the remaindermen. The in question. for the bank stock decedent cases cited are conclusive of the the bank she received for money As the that the statute of limitations is not bar corpus was a part stock of recovery by to the the remaindermen estate, to reinvest it as neither her failure by sold proceeds of the bank stock husband’s will nor her by directed her * * *” appellant’s decedent. S.W.2d it in charge failure to herself with at 409. had effect her various settlements rule theory general I find the behind this * * *” change its status. in the case of con- particularly compelling decedent, life estate who held a like those in the case tingent remaindermen by devised to her her husband’s property never may at bar because their interest will, sold 56 shares of bank stock and failed remaindermen’s become vested. Here the money money to reinvest the or to use the not barred the statute cause of action is After the termination pay estate debts. laches. of limitations or estate, the life the remaindermen affirm For these reasons would to recover these brought seeking an action all issues decision of the trial court from the life tenant’s estate. In dis- funds as to dividends of Oil except Standard Com- cussing when the statute of limitations be- question, Indiana stock. As to that pany of run, gins to the court stated: to the district I would reverse and remand “* * * nothing There is in the facts the testa- with instructions to declare court the case could have caused this case that of all stock divi- mentary trustee the owner the statute of that could have caused in stock of Indiana Standard paid dends to run before the begin limitations original ownership out growing belongs It death of the life tenant. 12,000shares, 6,000 dividend and shares general the class controlled in such stock dividends based any later well-known rule that— “ ownership. adverse is not holding ‘The life tenant’s remaindermen, but, the con- on them; possession is amicable to trary, being possession tenant
of the life
the remaindermen.’ limitations does
“Therefore the statute of to run until the death of the begin Randolph PARKHURST and Dennis of the life es- life tenant or termination Parkhurst, Raymond Derrick tate; proper- whether the and this is true (Defendants), Appellants the life estate be real or ty constituting personal property. [Citations.] Appellee Wyoming, The STATE of which hold “There are a number of cases (Plaintiff). equity sue in before remaindermen No. 5299. quiet of the life estate to expiration property their title to the Supreme Wyoming. Court of claimant, or to be in a placed adverse 3, 1981. June when the condition to make it available enti- arrive when will be time shall and use of the possession
tled to the cases, how-
estate. These [Citations.] *3 Counsel, Schilling, H. Appellate
Michael Lara- Program, Public Defender in oral mie, appeared brief and signed the appellants. on behalf argument Gen., Gerald A. Troughton, Atty. D. John Gen., Divi- Stack, Criminal Deputy Atty. Johnson, Asst. sion, Allen C. Senior Gen., appellee. the brief of signed Atty. Gen., Johnson, ap- Atty. Asst. Allen C. Sr. argument. in oral peared **, ROSE, *, J. McCLINTOCK C. Before ROONEY, JJ. RAPER***, THOMAS RAPER, Justice. jury and con- were tried
Appellants murder and assault degree first victed of They intent. battery with felonious bases. on three challenge the conviction First, argue that their officers violated when rights were probable without their vehicle stopped all evidence cause, therefore have been the result should obtained as Second, that the they contend suppressed. vehi- a search of their they gave to consent * pursuant entered March January of the court to order Chief Justice since 30, 1981. ** 26, 1981, par- but continued to Retired March *** argument. at time of oral ticipate Justice of the court this case Chief decision that,
cle’s trunk was obtained illegally and the assailants. A police officer then asked therefore, invalid, it was thus mandating Dugger Mr. if he knew who shot him. Un- the suppression gathered of the evidence response, able to understand the the officer during Finally, search. claimed queried if it had been Derrick and Mr. testimony by arresting that certain offi- Dugger indicated yes; Dugger survived to cer was impermissible comment testify. exercise of the appellants’ constitutionally Department The Glenrock Police alerted protected right of silence. office, the sheriff’s which in turn broadcast We will affirm. a description of the two assailants’ car.2 At approximately p. 11:45 m. on October The broadcast also noted that vehicle the home of Dennis and Christina heading was last seen north out of Glenrock Baird, Glenrock, located in Wyoming, on a back road leading Douglas. entered by force. The assailants kicked in Douglas dispatched sheriff’s office Offi- open the front door and went inside. Wade patrol cer Hineman to the back road from Dugger, guest a house sleeping who was *4 point Glenrock at the it Douglas. leads into couch, the front room on a awoke to the Hineman, patrol, Officer while on saw a sound of a shotgun blast which hit the mid-60’s vehicle going Douglas into Bairds’ it dog as ran into the room. Mr. one, quarter about a to a. m. In order to Dugger up stood and he too was shot. The look, get a better the officer made a U-turn blast knocked him backwards into the ad- and followed the car. He was then able to joining bedroom in which the Baird children determine that the car Dodge was a blue were sleeping. Dennis and Christina Baird with a license number of and that 8— jumped out of bed investigate the com- the car had two occupants. As the officer they approached motion. As the door into followed the vehicle onto an ramp entrance room, the front pushed Dennis his wife back 1-25, for he contacted City Douglas Offi- into the bedroom and indicated that she Dekmar, cer who was stationed on that should wait. He then went around the door highway, informed him of his stop intent to and was instantly shot. body, recoiling His the suspects, and asked for backup. shotgun blast, from the landed at Chris- stop When the was made Officer Desperate tina’s feet. help, for she headed Hineman, positioned he his car so that out of the bedroom and then saw Derrick headlights car’s would shine on him as he Parkhurst, one of the appellants, running approached suspects’ vehicle. As Offi- out the front door.1 When she went cer Dekmar pulled up behind Officer Hine- children, check on her she discovered that car, patrol man’s he saw Officer Mr. Hineman Dugger was seriously injured. She walking towards the suspects’ asked if he car. Dekmar was all responded, and he “no,” said, then then exited his vehicle and “Derrick.” Ms. crossed over to Baird then ran next door help. guardrail running parallel to high- way. Taking up a position there where he police arrived, When the a witness told could observe Hineman subjects, and the he them that he had seen two fleeing males Hineman, drew his weapon. meanwhile, the scene in a blue or green Ford Fairlane asked the driver for his license which when and that he had followed the car far enough produced identified him as Dennis Park- to see it heading out of town Doug- towards hurst. The requested was then las, Wyoming. police, upon entering house, get out of the car and stand in front of it determined that Dennis Baird was with his hands on dead but that the hood. The officer Wade Dugger was still alive. While was awaiting passenger informed that the arrival of an was Der- ambulance, Ms. Baird police informed the rick Parkhurst. Derrick was asked to also that Dennis and Derrick Parkhurst were exit the vehicle and position himself lights throughout 1. Originally, Numerous had been left on the vehicle was described as a “ enabling recognize Fairlane,” the house appellant, Ms. Baird description ’68 red Ford but the quite whom she subsequently knew well. corrected. so, front of it. While While the doing guns observed were removed from their Officer Dekmar with guardrail auto and it was impounded, the Parkhursts gun point, drawn. At this Hineman Officer were taken in and booked.
questioned the suspects concerning their Appellants sought before trial to have all whereabouts prior stop. When Hine- evidence obtained as a result of the stop as man walked back to his vehicle to radio the as the suppressed well search on the basis dispatcher, Dekmar holstered his gun and of the unconstitutionality offi- approached the suspects to determine if However, cers’ conduct. the trial judge asked, had When weapons. Der- denied their motion and admitted the evi- rick indicated that there was a .22 and a appeal dence. Now on the trial judge’s shotgun in the trunk. Dekmar then tried ruling challenged partly upon grounds to contact the county attorney by radio. emanating from the Fourth Amendment to to, Unable he returned to ask the suspects the United States Constitution3 and § who owned the car. Dennis Parkhurst stat- Art. I of the Constitution4 and ed that he did. Dekmar requested permis- partly upon grounds emanating from the sion to search the car. Dennis’ reply was Fifth Amendment to the United States that he was no lawyer, but Derrick told him Art. I of the Wyo- § Constitution5 to go ahead and let search the ming We Constitution.6 shall consider the car. Dekmar advised Dennis he did not grounds former first. have to be a lawyer and that he could either grant permission for the search or he could refuse. Finally, Dennis consented. The po- *5 lice then retrieved keys the from Dennis’ appellants’ The Fourth Amendment claim
pocket and conducted the search. In the persons is directed to the seizure of their trunk they found a .22 caliber rifle and and the search of the automobile in which 12-gauge shotgun which was later matched they riding. remedy they were The seek to the spent shells found at the scene of the alleged rights for the violation of their murder. From the smell of shotgun, the it the invocation of the rule exclusionary bar- was determined that it recently had been ring the admission of all evidence obtained fired. Hineman then advised both subjects illegal as a result of police activity. they were under arrest. Officer Dekmar gave appellants the First, their Miranda rights as in order to assert a constitu patted them down violation, and handcuffed standing. them. tional one have must Amendment, presentment 3. Fourth United States Constitu- on a of a or indictment Grand tion: Jury, except arising in cases in the land or forces, Militia, right people “The in to be secure in naval or in the when actual persons, houses, papers, effects, their public danger; in service time of War or nor against seizures, unreasonable searches and any person shall be for the same violated, shall not be and no Warrants shall put jeopardy offense to be twice limb; in of life or issue, upon probable cause, supported by but compelled any nor shall he be in crimi- affirmation, particularly Oath or ing describ- himself, against to be a witness nal case nor place searched, persons to be and the life, liberty, deprived property, of be or with- things or to be seized.” law; process private nor shall out due property of use, public just 4, I, be taken for without Section Art. Constitution: compensation.” people “The to be secure in houses, persons, papers their and effects 11, I, Wyoming 6. Section Art. Constitution: against unreasonable searches and seizures violated, compelled testify person shall not be shall be and no warrant shall “No case, upon probable cause, supported by issue but against himself in criminal nor affidavit, particularly describing place any person put jeopardy shall be twice in person thing be searched or the or to be jury disagree, if the same offense. If a or the or if the seized.” verdict, judgment be arrested after law, judgment in be reversed for error Amendment, 5. Fifth United States Constitu- in accused shall not be deemed to have been tion: jeopardy.” “No shall be held to answer for a capital, crime, or otherwise infamous unless legitimate expectation had a was searched by the United was issue considered This all would privacy property, connection with in his Supreme Court States Illinois, in Rakas v. Derrick And that Fourth Amendment owners. we find property 421, 58 L.Ed.2d auto- guest 439 U.S. 99 S.Ct. Parkhurst as a brother’s the car reasonably reh. denied 439 U.S. that expect mobile could the Court concluded free 83. There guest was a would be which he reme the benefit in order to obtain Thus, state encroachment. both rule, an exclusionary individual i. e. the dy, protest have search of standing his legitimate must first demonstrate Wyo- ear’s under Art. I of the trunk § was in that which expectation privacy ming Constitution. was seized violated. either searched or constitutional Appellants assert that their States, 1967, 389 347, 88 v. United Katz rights they violated when 507, 19 576. See also Com officers police stopped and detained ment, Under Unreasonable Searches when the of the auto- trunk again then rule ‘cu Amendment: “the becomes Fourth riding mobile in which had been ” curiouser,’ Land & Water riouser claims, Based these searched. the first opportu L.Rev. 275 This is convictions ask to overturn their this court this court had to consider this issue nity has trial court failed to exclude because the Rakas. following agree We one seek as a found result of evidence rule ing imposition exclusionary misconduct. own claiming must be a violation his/her Amendment purpose of Fourth under the Fourth rights expounded been guarantees eloquently has Amendment, Constitution, United States Supreme Court upon by the United States I, Wyoming Art. Constitution. And § occasions. In Weeks v. United on numerous that the where accusation is States, improperly something, searched or seized 652, was stated: L.Ed. it the claimant must have had a legitimate “* * * letters and documents private If expectation privacy something. as to and used in can be seized and held making Factors to considered in thus of an (1) precautions a citizen accused determination include: evidence *6 Fourth offense, protection taken in order maintain one’s the privacy; to se- (2) declaring the to be likely intent of the drafters of the Amendment Constitutions; is Wyoming United States and and seizures cure such searches against (3) and, thus property rights pos value, the so those claimant far as no area; (4) concerned, sessed in the well be legitima invaded as placed might are cy of the possession pres individual’s of or The ef- stricken from Constitution. ence in the which was or property searched to their officials forts of the courts and Comment, seized. 15 Land supra, praise- & Water punishment, to guilty bring 283, 56,7 L.Rev. at fn. and at 295. are, are to be aided worthy es- great principles of those sacrifice case, In we must conclude suf- and by years tablished endeavor that the possess did the requisite em- have in their which resulted fering expectation of privacy. No one ever has law of the the fundamental bodiment in challenged the of such regard existence in ” * * * 393, 34 S.Ct. 232 at land. U.S. person, so; to one’s own properly and there at 344, at L.Ed. 58 fore, appellants standing to object has followed, Court the seizure of persons. Further, years their Den In nis Parkhurst as Amend- owner of the to discuss the Fourth vehicle which continued legitimate expectation privacy. And this is 7. The Comment’s author observed that there guest just plain in a was some sense confusion over the intent Justice common because-a Rehnquist. However, expect opinion will in fact to be we are of home automobile 4, I, Constitution, pub- that under § Art. from outside intrusion either secure lic at legitimate presence pos- large the individual’s state. on or or the property session of the will seized establish a
1375
effects,’
ment as
embodying
princi-
democratic
and would obliterate one of
ples which are the cornerstone of our Con-
the most
fundamental distinctions be-
Egbert,
stitution. Cann &
The Exclusion-
tween
government,
our form of
where
ary Rule:
Its Necessity in Constitutional
law,
officers are under
police-
and the
Democracy, 23
Law
Howard
Journal 299
state where they
(Footnote
are the law.”
(1980).
Sutherland,
Justice
writing for the
omitted.)
17,
47 S.Ct. at L.Ed.2d 621. L.Ed.2d at 524. Justice Butler’s majority opinion in Go-Bart further The Tenth Circuit has expounded Importing States, Company v. United Sanchez, in United States on the U.S. 75 L.Ed. 10th 528: Cir. 450 F.2d observed: “Temporary detention for limited in- “ * * * Since before the creation of our as a full vestigatory purposes, as well government, [general] searches have been arrest, the Fourth protected by blown deemed obnoxious to princi- fundamental Ohio, Terry Amendment. ples of liberty. They are denounced in the constitutions or statutes of every Terry However, that a it was observed the Union. Agnello v. United State circum- appropriate officer States, 4, 6, [46 manner appropriate stances and in an L.Ed. The need of protection 145]. of investi- purposes approach them is attested alike by history behavior even gating possible criminal present conditions. The Amendment cause to though probable there is no is to be liberally construed all owe arrest, test of any and that the make an duty of vigilance for its effective *7 per- a citizen’s invasion of governmental enforcement lest there shall impair- be in is its reasonableness security sonal ment of the rights protection for the surrounding all circumstanc- light of which it was adopted. 282 [Citations.]” es. 357, at 158, U.S. 51 at S.Ct. 75 L.Ed. at vein has been held that “In this same it (Bracketed
382. substituted.) word some- requires to arrest probable cause And Justice Jackson in his majority opinion tempo- cause to thing probable more than States, Johnson v. in United 1948, purpose attempt- for the rarily detain 10, 367, 68 436, S.Ct. 92 L.Ed. stated: “ * * * on-the-spot example, ques- some ing, for An officer gaining pri- access to that, latter, as concerns the tioning and vate living quarters under color of his circumstances that brief detention under office and of the law personifies which he ipso is not justify an arrest would must then have some valid basis in law such cases as unconstitutional. See for the facto intrusion. Any other rule would Porter, (9th Wilson v. 412 Cir. right undermine ‘the 361 F.2d people to be Unverzagt, secure in v. persons, houses, their 424 United States papers, 1966); 1376 United 1970); 1115, 1117, 936, (8th Cir. cert.
F.2d
denied 439 U.S.
Oswald,
v.
(9th
Cir.
States
332,
441 F.2d
The issue their vehicle: by resolved a properly the consent bemay con- you evidence do then “Q of the standard. else did preponderance What investigative detention? State, Wyo.1979, cerning your Fitzgerald Der- and both Dennis that You testified “we view the review appellate On exit the to had been asked rick Parkhurst to the who favorably party most evidence car. supra, 601 Fitzgerald, prevailed below.” had they them where (1) “A I asked evidence was P.2d at 1018. Here the been. if he could officer Dennis police asked car; response? was a (2) replied “Q you get Dennis did
search the
And
by
was
his
read
lawyer; (3)
urged
not a
Dennis
I
Yes,
They said—if
“A
sir.
report.
brother, Derrick,
sir,
my
ahead
let the
go
notes,
to
from
my
from
search; (4)
officer
the offi
make
*10
suspect’s insistence
particular
override a
Amendment
on Fifth
the car
trunk of
ranging
Fact situations
was discover-
on innocence.
evidence
because
grounds
torture,
interrogation by
third-degree
from classical
of further
ed as a result
argument
297 U.S.
Mississippi,
This
Brown v.
Dekmar.
[56
Officer
poisonous
(1936), to pro
of the
L.Ed.
the fruit
S.Ct.
premised
682]
or friends in
Wong
family
in
Sun United
longed isolation from
tree doctrine found
Colorado,
Gallegos
States, 1963,
setting,
U.S.
a hostile
Dek-
Officer
to this issue
441. As
U.S.
S.Ct.
325]
[82
part
on the
(1962),
simple
to a
desire
or
mar testified:
sus
mentally
exhausted
physically
a
Well,
“A
Deputy
after
Hineman had
interro
endless
seemingly
to have a
pect
vehicle, I
subjects
both
in front of the
Indiana,
end,
338 U.S.
Watts v.
gation
longer any
determined that there was no
(1949), all
1347, 93 L.Ed.
S.Ct.
1801]
[69
so I secured
possibility
any danger,
my
a defendant
to cause
might be sufficient
weapon, and—
(Footnote
falsely.”
himself
to accuse
“Q
securing
What do
mean
you
original.) 417
omitted.)
(Emphasis
your weapon?
2365-2366,
149, 94
at
448 -
“A I reholstered it.
.2d at 195-196.
41 L.Ed
“Q And then
you
what did
do?
pressures
present
No such
here.
“A I
up
Deputy
stood
Hineman
investigating
a crime of
vehicle,
started
walk
to
back to his
large
violence in which
suspects
fully approached
subjects,
before I
public’s
a
posed
safety.
serious threat to the
they
any weapons.
asked if
had
They
they merely stopped
contend that
“Q
you get
response?
Did
detention,
investigative
for an
Yes,
“A
I did.
I,
that Miranda
supra,
we held in Part
“Q Who
you get
response
did
from?
necessary
were not
until the di-
warnings
“A Derrick Parkhurst.
from in-
changed
rection of their detention
“Q
say
you?
What did he
to
vestigatory
accusatory.
to
“A He
something
said
to the effect
recognized
now generally
It is
shotgun
that there is a .22 and a
in the
warnings
required
that Miranda
are not
trunk.”
investigatory stop
when
make an
Ohio,
pursuant
Terry
supra.
to
Absent
In the
right against
context of the
self-
special
extraordinary
circumstances where
here,
incrimination involved
there exist con-
employed,
warnings
coercive tactics are
cerns in addition to those
found
when the encounter be
necessary only
are
search and seizure area. These were dis-
Kamisar,
Tucker,
Kauper’s “Ju
accusatory.
cussed in
comes
Michigan v.
Forty
dicial Examination of the Accused”
mines they subjects where “A Talked seen at or near them how what doing? matched the incident in Glenrock about. I advised “Q “A First he asked their vehicle matched they—at Did he they description that time what say anything the scene. I him of the nature of the had and the what the gotten of the vehicle again else as to out they were possibility stop partially asked there ments to he came over to the defendants’ what did Officer had been. “A Not at that “Q (by “A “Q [******] Did he [Hineman] Stood you? Mr. behind me. Laird) Deputy Dekmar do time, no, make sir. at the time any Hineman, vehicle? state- “Q you What did the two of do after Neither one seemed north of Glenrock. to? testifying parts you to know. vehicle, “Q you, Parkhurst told I returned from Derrick “A When vehicle, out around the they time, Officer though, my the second that what just driving mines around. Is had asked for advised that he Dekmar you? he told me this in to search. He advised consent Yes, “A that both enough sir. tone of voise a loud [sic] front of hear him at the that, subjects could “Q you what did do? After standing We were about the vehicle. subjects, “A I continued to talk door, and neither with the front even tried to ascertain or to make certain add- (Emphasis anything.” said been, got- had they where had how travelled, there, ed.) ten what roads had hearing occupants searching at a motion rick Parkhurst testified
with while unknown gun, killers, accepta- the officer and the armed that he was able see most reasonable testimony explanation with was not inconsistent Officer ble under circumstances. However Officer Dekmar contends he was con- Dekmar’s. appellants’ though cealed from view. And Der- State, Appellants Wyo.1978, case-to-case cite Clenin v. basis. In Clenin may appear it 844, for proposition without close examination that state- any comment improper officer’s remarks were having ment reference to silence of the upon right the exercise of their of silence defendant amounts to an absolute prohibi- that, therefore, their conviction must tion because “compelled he cannot be in any be overturned. this court stated: Clenin criminal case to be a witness him- “ * * * We hold that under this section of self” protection within the of the Fifth
our state constitution comment any Amendment to the United States Constitu- an accused’s exercise of his of si- ‘.‘compelled tion and to testify against him- lence, interrogation whether self in criminal case” within the lan- *12 himself, by interrogation accused of guage of I Wyoming Art. § inherently prejudicial, others is and will Constitution. We must look at the two entitle an accused to con- reversal of his cases of Irvin and Both Clenin. were viction. of the accused’s Such breach squarely within Doyle they because protections plain is error clear attempts impeach the defendants ” * * * p.2d and prejudicial per se. because had failed to tell law enforce- at 846. ment officers that had alibis which at trial were for However, the first time raised as de- disagree appellants’ posi- we with tion in this case. fenses. The use of defendant’s silence in indirectly each case amounted to compelling State, While this v. Jerskey court said in testify. him to deciding, Without so we can Wyo.1976, 173, 180, citing P.2d say any defense raised the defend- Arizona, 1966, quoting Miranda v. of State ant at trial for first previ- time without “ ‘ * * * probably ous advice to the would fall State with approval, prosecution The category. within the same Clenin and Irvin not, therefore, use at trial the fact that are, therefore, clearly distinguishable from stood mute or claimed his [defendant] ’ * * * the case before us. privilege in face of accusation. (With citations) [Emphasis Jerskey State, Wyo.1973, Gabrielson v. 510 P.2d text],” the directly State did not or indirect- example furnishes another wherein use ly use a reference against to silence applicable of defendant’s silence is an appellants in the case now before the court. upon which to There ground reverse. an officer testified the defendant had re- State, Preceding Clenin v. supra, was Ir- give him a fused statement. Here fail- State, vin Wyo.1977, 560 P.2d which speak “compel” ures to did not the defend- first introduced into the jurisprudence testify against ants to themselves nor does Ohio, 1976, the rule of Doyle v. appear there even an innuendo that unconsciously making were even the root case grew out of which not only claim of to silence in their unre- any Irvin but also Clenin. The rule of is Doyle is sponsiveness. No element of coercion that: “ * * * guilt nor can present any inferences impeachment pur- [U]se whatsoever be drawn from the absence of silence, poses petitioners’ at the time by the responses appellants. of arrest receiving and after
warnings, violated the Due Process Further, State, Jerskey supra, Clause of the Fourteenth Amendment. at the court approved princi- has not State claimed that such use ple that forbidden statements are reversible in the circumstances of this might case prosecution error where the has used a de- ” * * * have been harmless error. creating fendant’s silence as a means of an State, guilt; In inference of nor can there here be supra, neither Irvin v. nor in Cle State, nin supra, any inference “that an honest answer would prohibit did this court appellant’s guilt,” all references to have established the Jers- silence nor dictate unneces sary page invocation of 183. The conclusion must be key the stern rule of Clenin. Application of the rule must be testimony made on a of the officer with re- silence was used challenged simply statements defendants’
spect prohibited com- not rise the level does prejudice showing them. Absent silence carries no ments on silence. When is a comment where the statement State, Irvin there is no error. penalty, silence, refer- merely a appellant’s but supra it, will not reverse. ence to we with Jers- believe that it is consistent We judgment is affirmed. Accordingly, the term “comment” key and Clenin to read implying more than a reference to in the Implicit silence. term is a accused’s Justice, ROSE, concurring. specially Chief being'mentioned to that reaction which reached concur results present possibility would which according to the follow- majority but do so Here silence. the offi- exploiting State cit- and under the authorities ing reasoning questions cer’s statements were: “Some ed herein. answered, weren’t” and “neither some subject said Those statements anything.” necessary decision are my The facts any the totality constituted reference to these: These statements were silence. isolated investiga- with murder connection to be never at time intended used to *13 tion, Hineman the Park- stopped Officer the prosecutor’s advantage by prosecu- the Further, Dek- hursts’ the roadside. Officer by tion. later reference was made car no nothing derogato- of them. There is any pistol, immediately, mar arrived drew words; expression in those there is no of ry it at the Hineman and aimed Parkhursts. police the officer’s attitude towards such subjects of their car ordered the two out They so much statements silence. are not it, questioned and to the front of where concerning appellants’ as are silence their concerning them recent whereabouts. Moreover, about the testimony behavior. gun walked holstered his and over Dekmar nature; passive referred a silence to was of questioning, area. On Derrick car was no exercise of the there affirmative a .22 Parkhurst revealed that there was right to silence. Without more there is no a in the trunk of the car. The shotgun infer read jury appel- reason to that the the retrieve permission to the officers obtained guilt. silence as of It is lants’ an admission and, weapons, determining after that the jury reasonable to that the took conclude fired, shotgun recently placed had been appellants’ within the unresponsiveness under subjects both arrest. complete stop context of the an indica- did not tion that hear considered: Issues question too question, officer asked “stop” actually 1. Whether fast, frightened or or con- action; police arrest or an unreasonable by people upon fused—a state most shared stopped though even being police 2. to search was Whether consent nothing There in circum- guiltless. these legitimate; appellants’ that nonre- stances indicate warnings 3. Whether an exercise of their sponsiveness manifests arrest; prior needed to the formal right of silence. present cry Doyle, The case is a far referring to testimony 4. Whether Irvin or We do not believe it is Clenin. ques- prearrest accuseds’ failure to answer this of situation that was envisioned type violating tions their to silence. constituting the court Clenin as “com- opinion agree majority I with Merely that the observing ment.” defend- points presents none of the above had not is not ants said much comment. following discus- grounds for reversal. The Thus, showing prejudice without some goes agreement, my sion into reasons judge there is no error. The trial was in a contrary conclu- points but out areas where what, if im- position gauge any, better plausible. such on the and if sions are pact jury, statements had
1383
grounds
1. WHETHER THE “STOP”
AC-
encounter which opens
WAS
for argu-
ment
police
TUALLY AN ARREST OR AN UN-
to the effect
behavior
unreasonably
was either
intrusive or
REASONABLE POLICE ACTION.
was an
arrest.1
up
majority
assumes
until the
arrest,
An
as defined Rodarte
City
formal arrest the
confrontation con-
Riverton,
Wyo.,
investigation
(1976),
stituted the
552
1245
kind of
detention
subjects
occurs when an
a person
officer
probable
allowable without the
cause re-
“some kind of
control
detention
quirements
arrest. Terry
of a full-blown
amounting
to a
Ohio,
restriction
his or her
U.S.
S.Ct.
* * *
freedom,” but “[ejxcepting
where the
(1968),
talks
about
factors which
officer temporarily detains for investiga-
detention,
authorize this kind of
and also
Rodarte,
tion.”
552 P.2d
supra,
at 1251.
scope
permissible
about
intrusion
The accompanying discussion in Rodarte
upon an
privacy, calling
individual’s
for a
inquiry
leaves room for further
into the
degree
balance between
intrusion
policeman
of when a
has merely
and the need
to detain
search. Terry,
“temporarily
someone.
detained”
supra,
at
at
U.S.
S.Ct.
1879. The
need to detain or search breaks down into
Some courts have held that the detention
(1)
two parts:
giving
facts
rise to “articula- of
at gunpoint amounted to an
ble
suspicions,” Terry, supra,
at
U.S.
holding
arrest. This
follows from the no-
21-22,
1879-80;
(2)
at
S.Ct.
tion that an
when police
arrest occurs
policeman’s
self-protection.
interest in
Ter- effectively
person’s
liberty
restrained
23-24,
ry, supra, 392
at
U.S.
See, Henry
States,
movement.
v. United
case,
present
In the
the majority
L.Ed.2d 134
found
conduct reasonable and (1959).
points
When
gun
an officer
light
allowable in
of the above factors.
someone,
constructively
he at least
restrains
agree with the
for the following
result
rea-
However,
Terry,
them.
light
kind
*14
(a)
sons:
Terry
prospective
dealt with a
of absolute definition of an arrest becomes
crime and an officer’s observance of suspi- enigmatic and
make much
does not
sense.
behavior;
cious
present
case the
investigative stop contemplates
Even an
en-
grounds for
are
suspicion
stronger because
compliance,
subject
forced
so
really
that
the officers knew a
had already
crime
been
Otherwise,
go.
is not free to
there would
committed and had at least a minimal de- be little
idea of investiga-
substance to the
scription of the
and their
suspects
apparent
tive detention.
locality; (b)
protection
the concern for
event,
any
employing
In
this
the cases
great
officers is at
as
least
here as it
argument
distinguishable
restraint
are all
since,
was in
Terry,
majority points
as
cases,
In some
present
case.
out, the police “knew” that
the criminals
See,
police
plainly
behavior was
excessive.
they sought were armed and dangerous;
g.,
Werth,
e.
v.
Wash.App.
State
(c)
and
was minimal.
intrusion
How-
(1977)
looking
escaped
P.2d 941
for
(police
ever, this point
arguable,
is
as discussed inmate,
house,
subject’s
surrounded
ordered
below.
her outside where
officer with
she saw
shot-
It seems that to the extent Officers Hine gun, conducted warrantless
search of
man and
merely stopped
Dekmar
the appel
State, Okl.,
house); Burns v.
891, 88 S.Ct.
any
found
cases authoriz-
I have not
suspect
tion.
ordered
when detectives
occurred
investi-
in the course of
weapons
drawn
ing
gun
car at
his
into their
out of
car and
any
police
lacked
stops where
gative
in con
cause
probable
found
point; court
serious
grounds to fear death or
reasonable
at
immediately preceding
nection with
case
However,
present
I think the
Lamp
injury.
bombing); United States
tempted
limitation.2
falls well within this
kin,
1972) (arrest
(3rd Cir.
under the standard set by
Supreme
State, Wyo.,
Sanville v.
1386
subject’s
significant
liberty
significantly
freedom
was
attenuat-
prived of
[a]
[their]
warn-
give
whether,
failure to
Miranda
all
way,”
considering
so the
ed. The test
is
of some
ings
require
circumstances,
might
would
the exclusion
rea-
relevant
evidence.8
was
free to
sonably believe
not
Kennedy,
leave. United
v.
573 F.2d
States
for
legitimately
4.
detained
They
1978).
(9th
657
Cir.
Relevant circumstances
apply, if
Miranda
still
questioning.
include
number
involved
the
of officers
was
within the
the detention
“custodial”
questioning.
the
of
stop,
length
the
e.,
above, i.
if the Park-
given
definition
supra.
v.
Whether
Kennedy,
United States
deprived of their
significantly
hursts were
stopped
not
the
or
the officers would
freedom.
view,
is, under this
subject
leaving
from
logically
This
follows most
possibility
last
important
less
than whether
not
1,
part
poses
from
discussion in
and thus
the
fact to him.
have communicated the
State
question
of whether
detention was
Ferrell,
51,
1011
41
596 P.2d
Or.App.
v.
“custodial,”
ques-
from the
distinguished
(1979).9
was
arrest.”
tion which asks whether it
“an
present case
room
The
of this
leave
facts
Sanville, supra,
As
P.2d at
noted in
553
argument
or not a custo-
for
as to whether
do
ordinarily
Miranda
not
rules
Again, the ar-
stop
initially.
dial
occurred
questioning or
general
affect
on-the-scene
use
gument
revolves around Dekmar’s
fact-finding proc
other
steps
general
Park-
held the
gun.
If Dekmar had
And,
ess.
do
accordingly,
generally
length
throughout
hursts at gunpoint
stops
not affect
outside the
investigative
interview,
want
it
would
call
See,
S.,
Allen
g.,
stationhouse.
e.
v. U.
390
warn-
Miranda
requiring
custodial situation
(D.C.
1968);
Gallagh
U.
F.2d 476
Cir.
S. v.
ings.
holding
was the
in United States
This
er,
1970),
cert. de
(7th
F.2d
Cir.
Balsamo,
F.Supp.
1385-1386
nied 400
27 L.Ed.2d
(D.Me.1979), where
court found that
264;
P.,
People Rodney
N.Y.2d
arrest,
even
was not an
though
stop
(1967).
hand,
N.E.2d 255
the other
On
The con-
warnings
required.
Miranda
Miranda
certain
definition cited
Sanville
presence
gun
pro-
tinued
would then
ly implies that detention need not reach the
vide the
which is inci-
kind
coerciveness
level
it
“custodi
of arrest before
becomes
interrogation, and to
dent to a stationhouse
Thevis,
F.Supp.
al.” See
U. S.
primarily
which Miranda was
addressed.
aff’d,
506 (D.C.Conn.1979),
1387
proached (Hineman)
display
did not
Finally,
great
majority of courts have
Second,
weapon.
promptly
indicated to
held that a consent to
given
search
even
subjects
that he was investigating the while in custody is not
invalid
lack of
possibility
their car matched the de-
warnings,
Miranda
because “a consent to
scription
Third,
of a car at the crime
search,
scene.
such,
is neither testimonial nor
there is no indication that the questioning communicative of the Fifth Amendment
period preceding the formal arrest was un-
People
Thomas,
sense.”
v.
12 Cal.App.3d
reasonably lengthy. Finally,
1102,
the fact that
867,
91 Cal.Rptr.
(1970);
872
see Phil
Dekmar
gun
reholstered his
before walking lips
People,
520,
v.
170 Colo.
“
* *
*
the defendants’
of
testimonial
references to
under this section
We
that
hold
nonprejudicial.
silence were
upon
comment
any
our state constitution
right
of si
of
accused’s exercise
an
III of the
agree
part
I
with the result in
the
interrogation of
lence, whether by
also.
In the
grounds,
opinion on additional
of
himself,
interrogation
or
accused
majority opinion,
words of the
will
prejudicial,
is
inherently
others
‘compel’
not
“[h]ere,
speak
failures to
did
of his con
to reversal
an accused
entitle
them
testify against
the
to
defendants
of the accused’s
breach
viction. Such a
an in
even
appear
selves nor does there
plain
is
error
protections
even un
that the
nuendo
Clenin, supra,
se.”
prejudicial per
to
making any
right
claim
consciously
him. it is at least prior warnings
silence is less with innocence than
consistent silence after is, however, evidentiary
16. This and not a argument. notes your “Q may look You he did not have cer indicated to Dennis that memory. your refresh consent to the attorney, to be an he could had they Parkhurst said “A Derrick to; (5) wanted by search himself if he around out been north of Glenrock agreed the search. Based permit Dennis driving. just mines rea on this trial court could evidence the else “Q anything say Did he sonably have that defendant concluded were they time what that they what —at voluntarily consented to the search of doing? Therefore, uphold we must its automobile. stop was he asked what “A First evidence obtained decision rule that the him of the nature about. I advised as a result was admissible. search possibility and the in Glenrock incident The of a con partially existence and voluntariness matched or vehicle that their vehicle be description sent to search of fact to matched the asked again all by judge decided in the the scene. light the trial seen or near there gotten out State, had they attendant Mares v. them how circumstances. seemed Neither one 530, 534, north of Glenrock. Wyo.1972, 500 P.2d fn. 1. here, judge, trial under the circumstances to know. you, told “Q Parkhurst justified suppressing evi Derrick fully was in not around they were out though, no that acquired dence the officers. We find by what around. Is driving just mines coercion, duress or he. as did you? he told II Yes, “A sir. the Fifth Appellants’ claim also concerns
Notes
[******] Amendment to the United States Constitu- do- Laird) you What “Q Mr. (by Wyoming tion and Con- Art. I of § ques- asking those ing you when ques- stitution. The assertion is tions, Hineman? Deputy tioning Hineman and conducted Officers where trying “A I was ascertain stop appellants Dekmar following the from, might they they where had come no was unconstitutional since gotten on to had going, they how warnings apprising ap- had given been out been long had they how pellants of silent. doing their to remain they had been there, and what Therefore, charge that the trial appellants were out there. they while court erred in con- excluding testimony stat- you “Q anyone Did them— cerning appellants to statements made been had you question, ed asked prior giving get response of Miranda you Did Glenrock. warnings, and evidence obtained as a result question? various statements. had sir, Yes, “A Derrick said through driven Glenrock.” Specifically, following testimony admission challenge the Also, on elicited direct examination of Officer weapons found conversation he had into evidence involving Hineman