# State v. Savva

> Supreme Court of Vermont · August 14, 1992 · 159 Vt. 75

URL: https://www.frixlaw.com/law-library/cases/9748807

## Case

- **Full name:** State of Vermont v. Phillip Savva
- **Court:** Supreme Court of Vermont
- **Decided:** August 14, 1992
- **Citations:** 159 Vt. 75; 616 A.2d 774; 1992 Vt. LEXIS 116
- **Precedential status:** Published
- **Opinion:** Dissent by Allen
- **Judges:** Allen, Gibson, Dooley, Morse, Johnson
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9748807

## How later opinions describe it (automated extraction)

- 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 pla…
- 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 …
- holding that warrantless search of bags found within car “was not supported by exigent circumstances because a less intrusive option was available” and therefore must be invalidated

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748807. Public record. Not legal advice.