State v. Chapman

DUFRESNE, Justice

(dissenting).

The sole issue for determination is whether or not the suppression of an empty whiskey bottle with what appeared to be blood and hair adhering to the bottom thereof and a pair of shoes as the fruits of an unlawful search and seizure was error on the part of the Justice below. His decision in pertinent parts reads as follows :

“It may be that the search of the scene under these circumstances is not unreasonable and that these officers were protected by their authority to ‘process the scene’. However, since the existence of such authority is postulated on the grounds of necessity it would appear that its scope, both spacially and temporally, must be limited by that same necessity. Whether or not such an exception to the traditional limitations on search without a warrant can be substantiated, it seems that once the body of the victim has been removed from the premises and the premises have been secured against intrusion and is under guard by a police officer, there no longer exists any necessity which would justify a re-entry into the *213 premises without the authority of judicial process.

Clearly, in the interim between 5:00 A.M. and 12:00 M the officers in this case had ample opportunity to apply for and obtain a search warrant. In its argument, the State suggests that this is not the case because of its inability to adequately describe the instrument for which the search was to be conducted. In the Court’s view, a warrant issued to these officers providing for a search of the defendant’s premises for any instrument capable of being wielded as a weapon and containing stains of human blood, and/or hair, and/or tissue, would have provided adequate protection against any so-called fishing expedition and would have authorized a search for that for which Lt. Jordan testified he was looking.

Unfortunately, the officers involved in this case, with the very best of intentions, have done exactly that which the ' Fourth Amendment to the United States constitution forbids them to do. Their return to the defendant’s premises and search thereof being in violation of his constitutional rights, the fruits of their unlawful search must be and are ordered suppressed.”

I agree fully with the decision of the Superior Court and hereby respectfully record my dissent to the opinion of my Brethren in the instant case. Initially, however, may I say that I need consider only the Fourth Amendment of the Constitution of the United States enforceable against the several States through the Fourteenth Amendment. Mapp v. Ohio, 81 S.Ct. 1684 , 367 U.S. 643 , 6 L.Ed.2d 1081 ; Collins v. Klinger, 1964, 9th Cir., 332 F.2d 54 . Indeed, like principles apply under our own State Constitution. Article I, Section 5. State v. Brochu, 1967, Me., 237 A.2d 418, 421 . Since Mapp , the interrelationship of the fourth amendment and the due process clause of the fourteenth amendment operate as a constitutional mandate upon the state courts to guarantee to individuals their right of privacy against unreasonable state intrusion by rendering evidence obtained by unreasonable search and seizure inadmissible in a state prosecution based thereon. Ellison v. State, 1963, Alaska, 383 P.2d 716 . The standard of reasonableness is the same. Ker v. California, 374 U.S. 23 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 .

It is true that under certain circumstances the practical demands of effective criminal investigation and law enforcement when viewed in realistic measurements of public interest, police obligation and self-protective action, may justify precautionary weapon checks or immediate searches, if the right of society to ferret out crime is not to be frustrated by the necessary delay attendant upon compliance with the constitutional strictures of the fourth amendment. People v. Cove, 1964, 228 Cal.App.2d 466 , 39 Cal.Rptr. 535 .

But the salutary and overriding constitutional objective that the police obtain search warrants as a routine practice in all except truly exigent circumstances should never be thwarted on mere pretense or for technical difficulties.

In the words of Miller v. United States, 1958, 357 U.S. 301, 313 , 78 S.Ct. 1190, 1197, 1198 , 2 L.Ed.2d 1332 .

“We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness.”

“We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a *214 showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.” [Emphasis supplied], McDonald v. United States, 1948, 335 U.S. 451, 456 , 69 S.Ct. 191, 193 , 93 L.Ed. 153 .

Constitutional alertness to possible police invasion of privacy will demand stricter compliance of police conduct to constitutional requirements where the area to be searched is one’s dwelling house rather than an automobile or pedestrian on the street or boat on the water.

“[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, 1924, 267 U.S. 132 , 45 S.Ct. 280, 285, 287 , 69 L.Ed. 543 . See also, State v. Hall, 1966, Iowa, 143 N.W.2d 318 .

The guaranties of the fourth amendment must be accorded to the guilty as well as to the innocent without discrimination. Miller v. United States, supra; McDonald v. United States, supra. In cases of infamous crimes such as murder, the individual person suspected by the police to have committed the felony has a definitely greater need for the application of the constitutional safeguards than he would otherwise have when involved in the commission of lesser crimes. Incipient dilutions of the constitutional formula will soon render meaningless the constitutional police restraints formulated by our forefathers. Such will be the inevitable result if we should adopt as the polestar of construction of the fourth amendment the present clamor of public necessity to ferret out crime.

Courts should approach the fourth amendment with a liberal touch in favor of the citizen so as to prevent any stealthy encroachment upon or gradual depreciation of the rights secured through imperceptible practice of courts or by repetitive conduct of well-intentioned but mistakenly over-zealous executive officers. Gouled v. United States, 1921, 255 U.S. 298 , 41 S.Ct. 261 , 65 L.Ed. 647 ; People v. Kaigler, 1962, 368 Mich. 281 , 118 N.W.2d 406 .

The burden of pleading and proving exceptional circumstances which would authorize a search without a search warrant and not incident to a valid arrest should be upon those who conducted the search, as a matter of defense. They are in a better position than is the person searched, to know whether exceptional circumstances were relied upon as providing authority for the search, and, if so, what those circumstances may have been. It is therefore fitting that the State carry the affirmative burden as to this, and that an accused not be required to plead and prove the negative of the proposition. See, Cohen v. Norris, 1962, 9th Cir., 300 F.2d 24, at 32 ; McDonald v. United States, 1948, 335 U.S. 451 , 69 S.Ct. 191 , 93 L.Ed. 153 ; United States v. Jeffers, 1951, 342 U.S. 48 , 72 S.Ct. 93 , 96 L.Ed.2d 59 ; Ellison v. State, 1963, Alaska, supra; Hernandez v. United States, 1965, 9th Cir., 353 F.2d 624 .

In the instant case, the initial entry to the Chapman home by Police Officer Fortier was lawful. Whether the accused gave such voluntary and knowledgeable consent to the entry as to legally waive any constitutional privilege connected with the same or whether his consent was in submission to lawful authority and tantamount to no consent, need not be decided. With or without consent, the officer’s entry without a warrant was proper under the existing emergency situation. Officer Fortier testified to a radio call from the Sheriff’s *215 office to check on what was going on at the Chapman home and as he walked up to the house he could see Mrs. Chapman sitting in a chair next to a reading lamp. She was slumped over and there was blood over her face. Basic human principles required that Officer Fortier under the circumstances as appeared to him at the time hastened to the house not only to investigate the report but hurried his entry therein to offer aid to Mrs. Chapman on the very distinct possibility that her life depended on emergency medical attention. When the attending circumstances indicate to the officer as a reasonable and prudent person that any delay attendant upon securing a search warrant might mean the difference between life and death for the person within the home, the constitutional requirement of the fourth amendment must give way to the paramount duty of the officer to preserve a human life. Davis v. State, 1964, 236 Md. 389 , 204 A.2d 76 . The right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as peace officers and derives from the common law. Had Officer Fortier been denied entry to the Chapman home, it would have been his right and duty to gain entry forcibly without delay. United States v. Barone, 1964, 2nd Cir., 330 F.2d 543 , cert. den. 84 S.Ct. 1940 , 377 U.S. 1004 , 12 L.Ed.2d 1053 .

When Officer Fortier ascertained as a fact that Mrs. Chapman was dead, the emergency ceased but his presence upon the premises continued lawful, if not to investigate the death of a person due from all appearances to violence, at least to comply with the specific mandate of the statute that the scene of the violent death be processed. Indeed, 22 M.R.S.A. § 512 requires under such circumstances that

“Such official [police officer] shall immediately take charge of such body and retain custody thereof without moving the same, except as otherwise provided, until the arrival of a medical examiner, the county attorney, the sheriff or a member of the State Police. The official taking charge of said body shall immediately notify the county attorney or sheriff, who shall in turn arrange for the attendance of the most readily accessible medical examiner.

⅝ ‡ ⅝ ⅝ dfi ‡

If no such danger exists, the body shall not be moved until the arrival of the medical examiner, the sheriff, a member of the State Police or the county attorney, and until photographs have been taken or measurements and drawings have been made to record the physical facts relative to the location and position of the body, under the supervision of the county attorney, the State Police or sheriff, or unless the Attorney General or the county attorney waives such requirements. After such photographs or such measurements and drawings have been made or have been waived and after the medical examiner has completed such examination as required of him in section 514, the body may be removed to a convenient place.

If and when it shall appear to the county attorney that the case is one of probable homicide, he shall notify the Attorney General of the fact.” [Emphasis supplied]

Officer Fortier carried out his statutory duties and within the hour the medical examiner was at the Chapman building as well as the County Attorney and the Sheriff of the County of Oxford. Again, whether the County Attorney’s entry was made with valid constitutional consent or in obedience to lawful authority on the part of the accused stands immaterial, as it was the statutory duty of the County Attorney to make his entry into the house, forcibly, if necessary, to attend to the obligations cast upon him in such cases of violent deaths. The Sheriff’s entry was similarly lawful under the terms of the statute and also as the chief executive officer of the *216 state in his county, responsible by the common law and statute law as the conservator of the peace and the protector of society against the commission of vice and crime. Sawyer v. Androscoggin County Commissioners, 1917, 116 Me. 408, 411 , 102 A. 226 .

The scene had been completely processed as required by the statute no later than 4:30 A.M. since the body of Mrs. Chapman had been removed prior to the first visit of the State troopers to the Chapman residence. But in the initial stages of the investigation of the scene, the County Attorney and the Sheriff had concluded from an inspection of the corpse and a survey of the area surrounding the deceased, and most probably from conversation with the medical examiner, that Mrs. Chapman had been the victim of felonious foul play and that the accused was the guilty party. Mr. Chapman was arrested at about 3:00 A.M., or shortly thereafter, less than an hour after both county officials had acquainted themselves fully with all the surrounding circumstances. True, as the County Attorney testified, the specific charge had not been determined at the time of arrest, but in his words, after having seen the condition of the deceased, it was apparent that a charge of some sort would probably be lodged against the accused. May I suggest that the official dilemma at that point was whether the accusation should be murder or manslaughter.

Probable cause exists where the facts and the circumstances within the officer’s knowledge' are sufficient in themselves to warrant a man of reasonable caution in the belief that a crime has been or is being committed. Carroll v. United States, 1925, 267 U.S. 132, 161 , 45 S.Ct. 280, 288 , 69 L.Ed. 543, 552 , 39 A.L.R. 790 ; Henry v. United States, 1959, 361 U.S. 98 , 80 S.Ct. 168 , 4 L.Ed.2d 134 . And the accused’s self-serving statement that his wife fell and hemorrhaged would not be inconsistent with the existence of probable cause that he had committed the crime of murder or manslaughter, since the circumstances need not exclude every other hypothesis than that of guilt but are sufficient if they generate reasonable ground for belief of guilt. State v. Littlefield et al., 1965, 161 Me. 415, 419 , 213 A.2d 431 ; State v. Warner, 1967, Me., 237 A.2d 150, 169 .

The County Attorney’s testimony in the court below clearly demonstrated reasonable grounds of suspicion that a felony had been committed and that the arrested person, Mr. Chapman, was guilty of the felony, and thus justified the arrest by the Sheriff. State v. Estabrook, 1968, Me., 241 A.2d 880 ; Therriault v. Breton, 1915, 114 Me. 137 , 95 A. 699 .

On redirect examination by the State:

“Q Now, another point that you brought out on your cross-examination or was brought out on cross-examination your reasons for arresting Mr. Chapman or discussing the procedure of arrest with Sheriff Haskell, you stated, I believe, was your observations of the wounds of Mrs. Chapman seated in the chair. That was the primary reason, is that what you have testified to?

A That is correct.

Q So at that time your observations of the nature of the wounds of the deceased led you to believe that Mr. Chapman would be a suspect, is that right ?

A That is correct.

Q Or that he might be arrested shortly thereafter? How did you arrive at that conclusion, because of the nature of the wounds ?

A Well, during the 45 minutes I was present with the medical examiner, there were large amounts of blood in the master bedroom, in the hallway, puddles of blood which had soaked into a braided rug in the hallway, blood in the livingroom, in the kitchen, on the sink, in the bedroom, the wounds on her nose, the condition of her eyes.

*217 Q Without continuing further, did you have at that time an idea of whether or not an instrument might have caused that wound ?

A At that time it was apparent that some instrument had to have caused that wound.

Q So then I take it the result of the autopsy returns merely confirmed your later observations?

A That is correct, that this death was not a result of natural causes.”

On recross examination:

“Q When Mr. Chapman was taken from the premises, there wasn’t any doubt that he was arrested then and there and he was going to be charged a little later; there wasn’t any doubt about that, was there?

A No, I wouldn’t say there was.

Q But at the same time, as you were looking around the premises you weren’t necessarily looking for this, say, bottle of whiskey or an instrument of that nature, were you?

A Well, in a way we were.”

A reasonable search without a warrant may be made incidental to a valid arrest. United States v. Rabinowitz, 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 . Abel v. United States, 362 U.S. 217 , 80 S.Ct. 683 , 4 L.Ed.2d 668 . From 3:00 A.M. to about 4:30 A.M. a thorough search of the whole premises was conducted by the County Attorney and members of the Sheriff’s department following Mr. Chapman’s arrest, and it included in its exploration not only the cellar area as was testified to, but also the garage where the waste barrels containing the suppressed bottle were located. The evidence fully supports the inference that the garage doors were closed during the initial search and the presiding Justice must have made this factual deduction and considered it as one of the factors in viewing this search incidental to arrest as complete and ended with the departure of the County Attorney and deputy sheriffs from the premises, notwithstanding the securing of the premises through the posting of an officer at the door. When the two State troopers arrived at the Chapman residence for the first time, their entry therein without warrant cannot sustain constitutional scrutiny.

There was not an iota of concrete evidence before the Justice below that the search was being postponed by the Sheriff or the County Attorney at the time they discontinued it, either on the grounds that the autopsy results were necessary and would be awaited or for any other, cause whatsoever. The record is silent thereon. When the 2 State troopers visited the Chapman home, they did so on their own initiative. Nothing in the record discloses that they were directed to do so by the Sheriff who had taken charge of the proceedings from the start. Although the “members of the State Police are vested with the same powers and duties throughout the several counties of the State as sheriffs have in their respective counties * * * to investigate and prosecute violators of any law of this State and to arrest the offenders thereof,” the Legislature never intended that the Sheriff’s duties in all criminal cases including homicides be merely a holding action pending the arrival of the State Police, but rather that the law enforcement agency first on the scene proceed with its duties as was done in the instant case, while the other stood in the ready position with cooperative action. The statute says:

“The State Police, sheriffs and deputy sheriffs, constables, city marshals, deputy marshals and police officers of cities and towns shall, so far as possible, cooperate in the detection of crime, the arrest and prosecution of criminals and the preservation of law and order throughout the State.” 25 M.R.S.A. § 1502.

Thus, the record does not support justifiable state police entry on their initial visit to the Chapman home without search warrant after the statutory processing of the homicide scene had been completed and *218 discontinued and after the search of the premises incident to Mr. Chapman’s arrest had ceased.

The fact that the Sheriff kept custody of the Chapman home by posting initially a town policeman and then a deputy sheriff on the outside to control access to the premises may display a technical device of continuity of official impoundment of the scene of the crime, but has never been recognized as sufficient to arrest the overriding dictates of the Constitution. The initial entry by the law enforcement officials was legal. It continued so during the statutory processing of the scene. Their right to search without warrant as an incident to arrest merged with their right to process the scene and endured beyond its completion. Once the Sheriff’s task was completed however, both in processing the scene and searching the premises as an incident to the arrest of Mr. Chapman, he owed a duty to the accused to protect the home and crime scene against intruders, either to secure the property by locking all avenues of ingress or to post a guard until the accused’s lawyer or some responsible representative took over. The Sheriff’s posting of a guard undoubtedly would facilitate a subsequent search, renewed or additional, with search warrant. No statute has been brought to my attention vesting law enforcement officials with the right to discontinue a search for the purposes of the performance of an autopsy on the victim and renewing the same thereafter. No statute sanctions the im-poundment of a home in the interest of enforcement of the criminal law, without judicial sanction, for any time longer than is necessary to process the scene of a violent or unexplained death as commanded by the statute quoted herein.

The second search of the premises was made at about 12:30 P.M. without a search warrant, some eight hours after the conclusion of the first search incident to the accused’s arrest. The State concedes that no consent was obtained for the same and that it was not a search incident to arrest within the concept of substantial contem-poraneousness with it. I have in mind that our Court has held a postponed search to be reasonable within constitutional concepts as in State v. Estabrook, supra, where the search is delayed from the place of arrest on the street to the police station when it is there carried out without undue delay.

Justification for the instant warrantless séarch would exist only if the circumstances within the knowledge of law enforcement agencies brought it within the so-called exigency rule. Except where the accused has tendered a valid waiver by consent, “[a] search is unreasonable unless authorized by a valid search warrant, is incident to a valid arrest, or is made in other exceptional circumstances which dispense with the need for a search warrant.” Williams v. United States, 1959, 105 U.S. App.D.C. 41, 263 F.2d 487, 488 ; United States v. Jeffers, 342 U.S. 48 , 72 S.Ct. 93 , 96 L.Ed. 59 ; United States v. Rabinowitz, 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 ; Johnson v. United States, 68 S.Ct. 367 , 333 U.S. 10 , 92 L.Ed. 436 .

In United States v. Jeffers, supra, and in Miller v. United States, supra, the United States Supreme Court has suggested typical situations where exceptional or exigent circumstances would justify a war-rantless search. The exigency rule was said to be applicable where, for example, the officers in good faith believe that violence will result or peril of bodily harm to themselves or to persons within the place to be searched may ensue if immediate action is not taken; also, where the officer is in pursuit of a fleeing felon; likewise, in situations where a movable vehicle is involved and delayed police entry or seizure would probably frustrate the confiscation of contraband or the gathering of the tools of crime; additionally, where there reasonably appears imminent destruction, removal or concealment of the property intended to be seized. Furthermore, the fact that the officers, as in the instant case, could have easily prevented any destruction or removal of the property *219 sought by the intended search through the mere expedient of guarding the door while a search warrant was obtained is practically conclusive of the absence of exigent or exceptional circumstances.

The State argued but offered no supportive evidence whatsoever before the presiding Justice substantiating in any degree exceptional or exigent circumstances. No witness testified to that effect. Even though the day was Veterans Day, a legal holiday, it is just mere surmise to conclude that no justice of the peace was available in the area for the issuance of a search warrant. The State has not shown that a search with warrant could not have been postponed to the following Monday without prejudice to the State. Townsley v. United States, 1965, D.C., Ct. of App., 215 A.2d 482 .

The State contends that inability to specify the instruments for which the authorities intended to search created the necessary exceptional circumstances. Research has revealed not a single case where difficulties in meeting the specificity requirements of the Constitution and of the rules of court implementing the same respecting the article to be seized have been even suggested as establishing or tending to support the existence of exceptional or exigent circumstances. Certainly, there existed no impossibility of substantial compliance with the specificity demands of the Constitution. From the testimony before the presiding Justice, he could rationally conclude that in the initial search incident to the arrest of the accused, the authorities were looking for a bottle possibly stained with blood or to which human hair or tissue might have adhered as the weapon used in the perpetration of the crime. He ruled that describing the article searched for as “any instrument capable of being wielded as a weapon and containing stains of human blood, and/or hair, and/or tissue, would have provided adequate protection against any so-called fishing expedition.” In this, he was only following precedent established by this Court in State v. Brochu, 1967, Me., 237 A.2d 418 , where a search warrant for “a container or vile [vial] containing methyl alcohol” was upheld.

A technical description of the thing to be searched for is not necessary and such reasonable designation will be constitutionally sufficient as will assure the constitutional safeguard against general exploratory invasions of privacy. This objective could have been met with ease in the instant case.

“It could not have been the intention of the framers of the constitution [or of our present rule] to require a designation of the thing to be searched for, so special and particular as to prevent the accomplishment of any beneficial purpose by a search-warrant.” State v. Robinson, 1852, 33 Me. 564, 572-573 .

The particularization suggested by the Justice below would meet the test applicable in determining the sufficiency of a search warrant, which is whether the warrant so meaningfully limits the objects to be seized that the executing officer is not thereby granted unlimited discretion. A warrant which described the articles to be seized as a bottle or instrument capable of being wielded as a weapon with human blood, tissue or hair adhering to it would fairly restrict and guide the searching officer and any search and seizure thereunder could not be viewed as the exploratory search condemned by the Constitution. Such a description would be reasonably definite enough in the circumstances. See, Commonwealth v. Owens, 1966, 350 Mass. 633 , 216 N.E.2d 411 . United States v. Clancy, 1960, 7th Cir., 276 F.2d 617 .

The State finally rests its claim of legality of the search upon Stevens v. State, 1968, Alaska, 443 P.2d 600 . But in that case the homicide took place in an isolated frontier village located on an island off the coast of southeastern Alaska. The first officer on the scene, the chief of police and law enforcement authority in this isolated bush village, was untrained in crime detection expertise. Under that State’s *220 statutory law, the coroner or magistrate was under duty to go to the place where the dead person was found, or, in the alternative, to arrange for a peace officer to do so and report his findings to him. But no coroner or magistrate was available closer than Juneau on the mainland. The Alaska State police and the District Attorney were also from Juneau. The Court admitted that the chief of police had no alternative under the law but to lock the premises and make the necessary arrangements for the proper statutory authorities from Juneau to come and process the scene as required by law. In the instant case, the proper authorities under the statute, the Sheriff, the County Attorney and the medical examiner, were all at the scene within the hour, conducted a full investigation and search and discontinued the same prior to the entry in the case of the State police. That the law enforcement authorities failed to come up with the supposed implement used in the homicide during the statutory investigation of the scene in no way impugns full performance of their duties under the statutory command. As a matter of fact, the autopsy confirmed what the officers had reasonable cause to believe had taken place. We are not dealing in the instant case with untrained personnel, since the Sheriff of the County of Oxford is a well known public figure, and I take judicial notice of that fact, fully qualified in law enforcement and crime detection by reason of his extended past service with the State police.

The presiding Justice was fully justified from the evidence to believe that when the Sheriff’s personnel and the County Attorney left the premises at about 4:30 A.M., the scene had been fully processed under the statute and their search of the premises incident to the arrest of Mr. Chapman had come to an end. The subsequent search in his view was an independent pursuit, subject to constitutional restraint, and his finding that it was unreasonable for lack of a search warrant was neither unwarranted nor an abuse of judicial discretion. Upon independent review, I reach a similar conclusion.

I find no quarrel however with the majority opinion in its conclusion that the reference bottle did not constitute legally abandoned property by the mere fact that it had been deposited in the trash barrel which at all times had remained within the possession and control of the owner.

Until the Legislature establishes a broader policy granting law enforcement authorities greater powers of impoundment respecting places where bodies of persons supposedly having come to their death by violence or other suspicious means may lie and authorizes holding action for investigatory purposes generally pending autopsies or other expert analyses involved in the investigation of crime, I do not subscribe to the theory that the judiciary should develop the same under the guise of interpreting the terms “unreasonable searches and seizures” of the Constitution. Reasonable investigatory searches of the homicide scene when mandatory under legislative enactment would be clothed with as much dignity and entitled to as much consideration by the judiciary as a search under a warrant issued by a Justice of the Peace. However, until the Legislature extends the scope of the present legislation, I must respectfully dissent.

I would deny the State’s appeal.