*1 its conclusion that the services actually were reason- provided able.
The trial court’s reflect a findings detailed examination of the experience and credentials of assigned those to work with termination, Prior 5.5. SRS worked intensively with S.S. to her improve parenting skills. Both parent educators were well limitations, aware of S.S.’s and both used methods that teaching the court found appropriate, such as repetition focusing on instruction basic skills. They ab- nothing dealt with more stract training, than toilet appropriate discipline, and basic nu- In trition. of its light findings, the trial could reasonably court conclude SRS had made appropriate, reasonable efforts assist S.S. in her attempt parental resume duties. educators,
Based
evidence from well-qualified parent
case-
workers, an
protective
worker,
adult
service
and the team eval-
uating
reunification,
potential
family
the trial court
concluded that there had been no improvement in the
ability
her
improve
5.5.
skills
toor
provide
safe environment and
care
for H.S. The
properly
findings in
support
stagnation are
evidence,
well
supported
and we will not disturb the
court’s conclusion based on those
H.A.,
In re
findings.
Affirmed.
State of Vermont v. Thomas Hollis
[633 1362] No. 92-462 Allen, C.J., Gibson, Dooley, Present: Johnson, Morse and JJ.
Opinion Filed October *2 Attorney, Carroll, State’s County Deputy R. Windham Karen Brattleboro, for Plaintiff-Appellant. Nelson, Ap- A. Allen, General, and William Defender
E.M. Defendant-Appellee. Montpelier, pellate Attorney, order con- Morse, suppressing from an appeals The State J. police following at barracks by traband discarded defendant marijuana during discovered possession custodial arrest we address is question search of his vehicle. The an unlawful error of the discarded contraband was suppression but did not authority had the considering police that (DLS). license arrest, defendant for with driving suspended affirm. We on a the Police informed the
Acting tip, Department Windsor individuals, 8,1991 specified on that includ- state March police defendant, cocaine into transporting would Vermont ing the A described vehicle that the sus- day. computer printout driving and indicated defendant’s license pects would be information, this state police had Based on two suspended. after it shortly officers the vehicle entered Vermont. stopped driver, Defendant, displayed Louisiana driver’s license. in the ran a li- placed One officer cruiser and check, his cense confirmed that license had been sus- pended Hampshire for failure in New appear Vermont charge. motor vehicle Further revealed that the investigation licenses, occupants suspended other three had vehicle defendant, and that all of occupants, resided including Windsor. marijuana, that he smelled other officer searched
Stating Marijuana A at tape the vehicle. was discovered. made arrest scene indicates that first officer informed de- towed, fendant as follows: vehicle is to be going “[Y]our Barracks, going search continue the State Police West Brattleboro. I’m to issue for DLS.... going you citation I’m placing you possession marijuana.” under At the barracks, in a placed defendant was conference room him- self. At one point, officer entered the room and discovered a bag containing cocaine and marijuana the floor. A short time later, defendant was cited and released.
Defendant charged possession cocaine, felony misdemeanor of marijuana, and DLS. At hearing on defendant’s motion suppress, the State conceded that the marijuana found the vehicle had to be suppressed because *3 the search of the vehicle was argued, unlawful. State how- ever, that the drugs discovered at the barracks police should not be suppressed because defendant had been ar- lawfully rested DLS. The State out pointed that ar- may rest a person a misdemeanor if the person’s ties to the community are not sufficient to assure that the person will re- citation, to spond or if the person has previously failed to ap- in pear to response or citation other court order. The State argued that defendant was arrested for properly DLS because he coming state, from out of he presented a license from a state, different and he had failed to at a court appear proceed- ing yet another state.
Defendant conceded that the stop legal, but argued the evidence police discovered at the barracks was the “tainted fruit” an illegal arrest that directly resulted from an unlawful search. The district court ruled that the evidence must be sup- (1) pressed because despite the officer’s testimony that he ar- rested for possession defendant marijuana DLS, the ground actual for the as stated the officer at the time the made, arrest was was possession (2) of marijuana; and as- suming defendant had also DLS, been arrested for a custodial the officer’s doubts because improper have been would arrest minimal. community were ties to the defendant’s concerning to the facts known that the argues the State On appeal, take to police of the arrest permitted the time officer at him a and then release police state barracks Defendant community. his ties to the confirming citation after ar defendant was that that, finding the court’s given responds DLS, marijuana, rested for Therefore, according for DLS is irrelevant. arrested have been discov defendant, evidence the arrest was unlawful tainted must suppressed barracks police ered dis the contraband agree arrest. that fruit We suppressed. station must be carded at outset, trial court’s that we cannot affirm the we note At DLS, intended, an arrest for even if ground decision on the that a the court concluded Although not have been lawful. would the officer’s improper because arrest would been custodial community min- ties to the concerning defendant’s doubts custodial imal, argument it did not address State’s under V.R.Cr.P. proper for DLS would have 3(c)(2)(E) that defendant had because the officer was aware an- to a citation before response failed to previously appear that a arrest for DLS would court. conclude custodial other We 3(c)(2)(E), per- Rule here under appropriate have been or for a misdemeanor when the mits arrest continued to a cita- appear has failed “person previously response in con- tion, summons, order of court issued warrant other nection the same or another offense.” allowing police is to make custodial arrest it true that
While failure to prior for a misdemeanor because the defendant’s rationale most based on the same as the one appear likely allowing an arrest the defendant’s ties the community where doubt, not subsume Compare are in the latter does the former. *4 3(c)(2)(E). 3(c)(2)(D) effect, In a prior V.R.Cr.P. with V.R.Cr.P. factors, regardless enough failure to other creates appear, would respond doubt about whether the defendant to citation Further, to allow a custodial fact that ulti- arrest. released on citation mately was would somehow invalidate an arrest for could have a custodial ar- police DLS. made to previous rest for DLS based defendant’s failure appear, and then released him when satisfied that he they would 3(c)(1) (citation See V.R.Cr.P. must be issued once rea- appear. exist). longer sons for custodial arrest no Our determination that the have arrested de fendant DLS does not end our inquiry, however. We must address whether the officer’s arresting actual motives stated grounds the arrest may considered determining the arrest broke the link causal between the unlawful search and discovery of the contraband at the station. Although of the recently majority we followed federal circuits, which limit Fourth Amendment analysis examining objective arrest,” Towne, “the legality State v. 158 Vt. 607, 628-30, 615 484, 496-97 (1992), A.2d we have not addressed this issue in the precise context presented here. Towne,
In
the defendant
his
argued that
warrantless arrest
charge
federal firearms
pretext
interrogat
was mere
ing him
regarding
suspected
murder
of committing,
and therefore
regardless
was unlawful. We held that
of the offi
cer’s underlying
motive for the
the arrest was valid be
(1)
cause
the officer had
believe defendant
carrying
a firearm in
law,
(2)
violation of federal
and
warrantless arrest was authorized by
state law. Id. at
A.2d at 497. We
this
objective
followed
two-part
test because we
recognized that it was more consistent with United States Su
Court
preme
precedent than the test followed
the Tenth
Circuits,
Eleventh
which seeks
determine whether an arrest
or stop would have been made absent the allegedly improper
Id.
n.3,
motive.
at 630
In the defendants sought suppression of all evidence gathered as the result a wiretap grounds on the that the offi- cers admitted they made no attempt comply with statutory requirement that the number intercepted calls be minimized. The defendants argued that the government’s post-hoc expla- * The suggest defendant in Towne pretext analysis did not that a would differ Constitution, under the Vermont we did not reach that issue. See id. at n.4, Similarly, parties at 497 n.4. here do not invoke the Constitution, Vermont and we do independent not consider analysis un- our der constitution.
92 calls most of the intercepting of of
nation the reasonableness “having the law because compliance with not show using and attorney a by the fact Government after prepared of the indicative not which were categories terminology explana- interceptions, [the at the time thinking agents’ the state of and mental perceptions not the reflect does tion] at Scott, 436 wiretap.” U.S. conducted actually agents who 135. play of an motives officer acknowledged
The Court exclusionary of determining application in part some estab- violation has been or constitutional statutory rule after a violation lished, that the existence such but determined light of the officer’s actions objective on an assessment turns acted, re- officer at the time the the facts and circumstances Id. or motivation the officer. intent gardless underlying officer does not the state fact that the “[T]he at 135-38. provide reasons mind which is hypothecated action invalidate for the officer’s does justification legal circumstances, objectively, viewed as the long action taken action.” at 138. justify that Id. and commentators accepted by has been courts principle
This
n.12;
at
1 W.
See id.
138
in a wide
circumstances.
variety
1987)
(2d
LaFave,
83
ed.
1.4(b),
§
at
(princi-
Search
Seizure
in resolving suppression
should control
ple set forth
Scott
rule).
instance,
For
exclusionary
from
this Court
arising
issues
disregarded
underlying
courts have
generally
and other
legal
motives of the
officer
cases where there is
arresting
Towne, 158
justification
grounds.
for arrest on the stated
See
therein).
(cases
628-30,
important.”).
Nevertheless, while the courts generally
an
employ
ob
jective standard in assessing the legal basis for an arrest, they
will not
in ex
“indulge
post
extrapolations
all
of
crimes
facto
that might have been
charged
given set of facts at the
moment of arrest.” United
Atkinson,
States v.
835, 838
F.2d
(5th
1971).
Cir.
In order to prevent post-hoc justifications for
arrests,
otherwise invalid
Atkinson limited
two-part objec
tive
test
holding that
probable
where
cause does not exist for
offense,
articulated
there is a valid
only
if
of
fense, and the offense for which there
probable cause,
are
related. Id.
court,
to the
According
arrest is valid when there
for which
and the crime
charged
the crime
is a nexus between
po-
force
rule would
“[a]ny other
because
cause exists
taken into
citizen
charge every
routinely
officers
lice
held for.” Id.
thought
could
they
every offense
See, e.g.,
Atkinson rule.
have followed
courts
Several
1986)
Rambo, 789 F.2d
1289, 1294
Cir.
States v.
United
de
could have arrested
(contraband
because
admissible
statute, an offense
undesirable-guest
violating
fendant
conduct);
disorderly
charged offense
closely related to
1972)
(2d
Martinez,
(agents
v.
79, 82
United States
mari
transferring
arrest for crime
cause to
had
related to
form,
is closely
order
juana without written
Lake,
Horn
City
C-1 v.
selling marijuana);
charged crime
1990) (insufficient nexus
(N.D.
940,
Miss.
945-46
Supp.
775 F.
trespass
disorderly
offense
offense of
conduct
between
1992)
(Ga.
Sparks,
v.
App.
Ct.
ing); State
S.E.2d
violation
littering
officer arrested defendant
(though
arrest; seized
ordinance,
did not
custodial
authorize
county
tree because officer
not fruit
drugs
poisonous
state stat
under
illegal dumping
defendant for
arrested
1990)
Smith,
(N.D.
(even
if
v.
ute);
89-90
*7
State
N.W.2d
con
felon,
eventually
who was
stop
no
cause existed
probable
violation,
firearms, for
open-container
an
possession
victed
refuse).
felon for
deposit
officer could have
unlawful
stopped
“the conduct that served
offenses are related when
Generally,
probable
for the
for
there
no
charge
as the basis
which
situated
offi
could, in the
of a
reasonable
eyes
similarly
cause
cer,
charge
for a
there
also
served as
basis
which
Perez,
482,
Trejo v.
486
probable cause.”
Smith, (unlawful
1982);
v.
at
State
deposit
see
N.W.2d
refuse,
justifiable,
open-con
arrest was
and
offense
which
upon
arrest,
violation,
related
the stated
for the
grounds
tainer
from same
of factual circum
offenses because
arose
set
they
Bonds,
(court
Richardson v.
stances);
may
The law considered thus far be summed as may follows: up (1) arresting the motives of officers are is irrelevant when there probable cause and legal justification for the offense stated as (2) the basis or is no when there justification or legal to arrest grounds based stated by the officer but the stated offense and the offense for which there is cause and justification legal reasonably are related.
Neither
present
situation is
In
case,
here.
this
the ar
resting officer was aware that defendant had
been operating
vehicle
a suspended
license but chose not to
him on
arrest
Rather,
charge.
that
charge
arrest was based
drug
from an
stemmed
search.
district
court relied on the
of the
transcript
arresting officer’s
statement
concluding that the officer’s sole basis for the arrest was the
drug charge
from that
resulting
search. This
finding
sup
ported
evidence. More
importantly,
conduct
served
the basis for the
of contraband—
charge
—
could not have served as the
basis
charge.
DLS
See
Perez,
v.
Trejo
Therefore, the fruit the tainted search ar subsequent rest must be suppressed. Badger, See State v. 141 Vt. 439-40, (1982) (evidence 450 A.2d suppressed must be un less causal nexus between illegal police conduct and procure ment of has evidence become so attenuated by intervening taint). events toas dissipate The State may employ post-hoc rationalization for stemming from an illegal search to break the causal link between the illegal conduct and discovered evidence. v. See Scott United subsequently States, (“In 436 U.S. 135-36 view the purposes deterrent rule, exclusionary consideration of official motives may some play part in determining whether application the exclu rule sionary is appropriate statutory constitutional after established.”). violation has been *8 Finally, we need not consider whether the apparent abandon- ment of the contraband at the police station was a voluntary abandonment that the taint purged illegal argument was never raised by the State. Cf. Lawrence v. Hen- derson, (5th 1973) (where Cir. illegal arrest prompted defendant to conceal narcotics in paraphernalia po- Commonwealth voluntary); vehicle, was not abandonment lice decision, 1980) (in (Pa. court 4-3 Harris, 421 A.2d 199, 202 v. in incriminating evidence abandonment held that defendant’s act intervening, independent an was not toilet station’s arrest). taint of purge to sufficient free will Affirmed. C.J., majority’s conclusion agree I with
Allen, dissenting. been custody appropriate would have continued that arrest 3(c)(2)(E), but to V.R.Cr.P. pursuant the facts presented under a different result. requires this conclusion believe that indicating that in of information The was Following stop, suspension. was under defendant’s license the officer per- to exit his vehicle while defendant asked defendant had a check to determine whether formed a license license; that check that the license officer learned from valid Hampshire. in New appear for failure to suspension was under community be- defendant’s ties to He was concerned about had a resident but claiming was be Vermont cause defendant from coming was Massa- driver’s license and Louisiana had believe officer clearly chusetts. and could presence had committed his a misdemeanor determin- for the purpose custody continue to assure his ties were sufficient ing community his 3(c)(2)(D),(E). The officer testified that appearance. V.R.Cr.P. driving suspended his for with li- custody defendant was in (DLS), § cense 674. violation V.S.A. United States v. line beginning
The evil that the of cases Atkinson, 1971), prevent F.2d 835 seeks to is totally sham arrest at the unrelated to the crime outset which The facts here do not cause to arrest exists. suggest post-hoc justification for otherwise invalid arrest condemned Atkinson. It is in this case con- unnecessary an Atkinson duct as to whether the officer “could have” inquiry DLS; arrested for related crime. The initial detention the continued the purpose determining 3(c)(2) whether the A exceptions applied. ap- Rule citation pear possession marijuana, was issued for both DLS and charged ultimately defendant was with both. While the arrest *9 unlawful, for marijuana possession may have been continued 3(c)(2) exceptions to determine whether the V.R.Cr.P. I DLS offense was lawful. would reverse. applied Department Appli- Respecting Petition Public Service cation and Rule General Order 65 4.100 Small Power
Projects of 100 KW Less
[632 1373] No. 90-043 Allen, C.J., Gibson, Dooley Morse, Present: JJ.
Opinion Filed October Thanhauser, S.R. se, pro Newbury, Appellant. Picton, Rutland,
Kenneth C. for Appellee Central Vermont Public Service Corp. Commons,
Geoffrey Special Counsel, Montpelier, for Appel- lee Department Public Service.
Morse, J. Power, White Oak Water small power producer, appeals from an order of the Public Service Board rejecting White Oak’s claim that the Board failed to give sufficient notice of a rule providing for annual 10% decreases in the minimum rate that utilities small pay power producers. We affirm.