Opinion

State v. Savva

  • 159 Vt. 75
  • 616 A.2d 774
  • 1992 Vt. LEXIS 116
Court
Supreme Court of Vermont
Filed
Aug 14, 1992
Status
Published
Author
Allen
On the bench
Allen, Gibson, Dooley, Morse, Johnson
Cited by
47 cases
Authority
More cited than 10.1%

concluding that mobility did not constitute a per se exigency and that it would diverge from the federal automobile exception and would “recognize a separate and higher expectation of privacy for containers used to transport personal possessions than for objects exposed to plain view within an automobile’s interior”

How later courts described this case

  • concluding that mobility did not constitute a per se exigency and that it would diverge from the federal automobile exception and would “recognize a separate and higher expectation of privacy for containers used to transport personal possessions than for objects exposed to plain view within an automobile’s interior”
  • stating that Article 11’s warrant requirement itself reflects “the balance reached by the constitutional drafters, a balance in which the individual’s interest in privacy outweighs the burdens imposed on law enforcement”
  • explaining that United States Supreme Court decisions “do not predetermine our interpretation of Vermont’s search and seizure law under Article 11” which “may afford greater protection”
  • noting additional language in search and seizure provision that warrants issued “without oath or affirmation first made, affording sufficient foundation for them” and without property “particularly described” are “contrary to [the right to be free from search or seizure], and ought not be granted” (quoting Vt. Const. ch. I, art. XI)

Written by the judges who cited it.

The opinion

Allen, C.J.,

dissenting. I dissent because I conclude that misdemeanor possession of marijuana in this case is a lesser-included offense of felony possession, not a separate offense. A defendant is entitled to a lesser-included offense instruction “if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208 (1973). Defendant’s theory, that he knew nothing of the drugs found in the rear of the car, raised a question of fact for the jury to resolve. The jury could rationally have believed defendant’s theory and found him guilty of misdemeanor possession while acquitting him of felony possession. I therefore cannot agree with the majority’s unsupported assertion that the trial court improperly instructed the jury on the lesser-included offense.

The majority concludes that defendant’s possession of the smaller amount of marijuana constituted a separate and distinct offense because separate evidence could have supported separate charges. However, this reasoning misapplies the test for determining a lesser included-offense. If “there is any reasonable theory from the evidence which would support [defendant’s] position,” then a trial court must instruct the jury on the lesser-included offense. Ex parte Kerr, 474 So. 2d 145, 146 (Ala. 1985) (it is reversible error not to instruct a jury on the lesser-included offense of simple possession when defendant denies knowledge of the evidence supporting only the greater offense).

The State and defendant argue that the cause should be remanded and I would grant the request.

I am authorized to say that Justice Dooley joins with me in this dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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