NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
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before this opinion goes to press.
2016 VT 128
No. 2015-440
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Grand Isle Unit,
Criminal Division
Stuart Cleland September Term, 2016
A. Gregory Rainville, J.
William H. Sorrell, Attorney General, and Paul A. Barkus, Assistant Attorney General,
Montpelier, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. SKOGLUND, J. Following his conditional guilty plea to drug and child-cruelty
charges, defendant appeals the trial court’s denial of his motion to suppress, arguing that the
affidavit submitted in support of a search warrant of his residence did not provide probable cause
for issuance of the warrant. We affirm.
¶ 2. On June 7, 2013, after a nearly month-long investigation regarding a clandestine
methamphetamine operation, a detective with the Vermont State Police applied for and obtained a
warrant to search the residence and curtilage at a specified address on Windmill Point Road in
Alburg, Vermont. The search warrant was executed three days later by the state police and
associated law enforcement units. As a result of the search, defendant was charged with
manufacturing methamphetamine, possessing the precursors used to produce methamphetamine,
conspiracy, and child endangerment. The conspiracy charge was later dismissed.
¶ 3. Defendant filed a motion to suppress evidence gathered from the search and to
dismiss the charges, arguing that the affidavit submitted in support of the search warrant failed to
establish the requisite probable cause for issuance of the warrant. On June 30, 2015, following a
February 19, 2015 motion hearing, the trial court denied the motion. In relevant part, the court
ruled that: (1) the information in the affidavit contained substantial evidence from which a judge
could independently and reasonably conclude that a crime had been committed and that evidence
of the crime would be found at the specified address; and (2) although many of the hearsay
statements in the affidavit could not be considered reliable under the applicable test, those hearsay
statements that were reliable, considered along with other nonhearsay information contained in the
affidavit, were sufficient to support issuance of the warrant. On October 19, 2015, defendant
entered into a conditional plea under which he reserved the right to appeal the denial of his motion
to suppress and dismiss.
¶ 4. On appeal, defendant argues that the affidavit submitted in support of the search
warrant failed to provide sufficient facts to establish: (1) a connection between the alleged crime
and the place to be searched; (2) the reliability of the hearsay statements contained in the affidavit;
and (3) a factual basis for the hearsay statements. Our standard of review is well established:
In reviewing a motion to suppress, we are deferential to the factual
determinations and inferences made in the initial determination of
probable cause, but we review conclusions of law without
deference. Where, as here, the motion is to suppress evidence seized
pursuant to a warrant, the initial finding of probable cause by a
judicial officer is given great deference. . . . Even under this
heightened deference with regard to factual determinations and
inferences drawn therefrom, however, the ultimate question of
whether the factual claims in an affidavit are sufficient to amount to
probable cause is still a matter of law appropriate for fresh appellate
review. Our review is thus to ensure that the magistrate had a
substantial basis for concluding that probable cause existed.
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State v. Chaplin, 2012 VT 6, ¶ 9, 191 Vt. 583, 44 A.3d 153 (quotations and citations omitted).
¶ 5. The standard for determining probable cause is also well-established. “Generally,
probable cause exists when the affidavit sets forth such information that a judicial officer would
reasonably conclude that a crime had been committed and that evidence of the crime will be found
in the place to be searched.” State v. Robinson, 2009 VT 1, ¶ 6, 185 Vt. 232, 969 A.2d 127
(quotation omitted). “We examine the totality of the circumstances to determine whether there
was substantial evidence supporting the warrant, keeping in mind that affidavits must be viewed
in a common-sense manner and not be subjected to hypertechnical scrutiny.” State v. Zele, 168
Vt. 154, 157, 716 A.2d 833, 836 (1998) (quotation and citation omitted).
¶ 6. In determining whether hearsay statements incorporated into the affidavit support
a finding of probable cause, we employ a two-part test codified in Vermont Rule of Criminal
Procedure 41 from Aguilar v. Texas, 378 U.S. 108, 114-15 (1964) and Spinelli v. United States,
393 U.S. 410, 415-16 (1969). See Robinson, 2009 VT 1, ¶ 6; Reporter’s Notes, V.R.Cr.P. 41. The
rule requires that there be “a substantial basis for believing the source of the hearsay to be credible
and for believing that there is a factual basis for the information furnished.” V.R.Cr.P. 41(d)(1).
The credibility prong of the rule requires a showing either that the informant is inherently credible
or that the information provided by the informant on that particular occasion is reliable. State v.
Arrington, 2010 VT 87, ¶ 14, 188 Vt. 460, 8 A.3d 483. “An informant’s inherent credibility is
typically established by evidence that [the informant] has provided correct information in the past,
while particular information is generally deemed inherently reliable if the informant acted against
penal interest, or if police corroborated the information to the point where it would be reasonable
for them to rely on it as accurate.” State v. Goldberg, 2005 VT 41, ¶ 11, 178 Vt. 96, 872 A.2d 378
(quotation omitted). The factual-basis prong requires an examination of the basis of the
informant’s knowledge. Arrington, 2010 VT 87, ¶ 13. “To satisfy [this] prong, the informant’s
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tip must transmit the factual basis for the conclusions, so that the magistrate may make his [or her]
own direct analysis.” Goldberg, 2005 VT 41, ¶ 10 (quotation omitted).
¶ 7. The affidavit at issue here included the following information: (1) the process for
manufacturing methamphetamine, including the use of a key precursor chemical, pseudoephedrine
(PSE), commonly found in over-the-counter decongestants and allergy-relief products; (2) the
restrictions and reporting requirements regarding the sale of products containing PSE, including
prohibiting the purchase of products containing more than 3.6 grams of PSE per day or more than
9 grams within a thirty-day period; and (3) a chart showing defendant’s and his domestic partner’s
purchase of products containing PSE between March and August 2013.
¶ 8. The affidavit then made the following assertions of fact, among others, concerning
the investigation of methamphetamine operations in Alburgh:
Defendant purchased 22.59 grams of PSE between April 19 and May 19, 2013.
A reliable confidential informant who had made a controlled purchase of narcotics in
May 2013 for the Vermont Drug Task Force stated that he knew defendant had been
using methamphetamine for the previous two years and had a supplier in New York
but did not know if defendant was manufacturing the drug.
On May 21, 2013, the affiant received a phone call from another named detective
informing the affiant that a concerned citizen who wanted to remain anonymous
reported, without having first-hand knowledge or seeing the operations, that defendant
and his domestic partner were manufacturing methamphetamine with their infant child
in the house.
The following day, the affiant and another detective travelled to “Windmill Dr.” in
Alburgh and verified that the address was a trailer with the number stated in the
affidavit posted on the outside.
On May 28, 2013, a sergeant with the Grand Island Sheriff’s Department informed the
affiant that a confidential informant who had provided information in the past leading
to an arrest reported that several people told him that defendant was manufacturing
methamphetamine at a residence on Windmill Point Road where defendant was living.
On that same day, the affiant observed a car registered to defendant leave the Windmill
Point Road address stated in the affidavit and go to another residence where the
confidential informant had indicated methamphetamine was being manufactured.
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On June 3, 2013, a police offer informed the affiant that the officer had received a
National Precursor Log Exchange hit indicating that defendant had purchased a product
containing 3.6 grams of PSE at a Champlain, New York pharmacy.
That same day, another police officer informed the affiant that defendant had purchased
a product containing PSE at a drugstore in St. Albans, Vermont on May 31, 2013.
A later review of records indicated that defendant had purchased PSE on four occasions
at different drug stores in New York and Vermont on April 11 and April 19, 2013.
On June 4, 2013, police interviewed defendant and presented him with information
they had received about his purchases of PSE and his manufacturing of
methamphetamine.
Defendant denied manufacturing methamphetamine and told police he purchased the
PSE for a named individual.
During the interview, defendant waived his Miranda rights and told police that he
started using methamphetamine one year earlier, that he was addicted to pills, and that
he would obtain methamphetamine from the named individual and then trade the
methamphetamine to another named individual in exchange for pills or cash.
On that same day, the affiant interviewed an individual called Shorty, whom defendant
had told police was the first named individual’s “right hand man.”
Shorty told police that he heard the named individual had taught defendant how to
manufacture methamphetamine.
The following day, the affiant and another officer interviewed the named individual’s
girlfriend, who provided a written statement in which she reported that defendant had
told her he could make methamphetamine and did not need to buy it.
The following day, during a second interview with Shorty, Shorty told the affiant that
a month earlier at defendant’s trailer defendant showed Shorty a white substance that
he removed from a drawer under his couch and told Shorty that it was
methamphetamine he had manufactured.
Shorty also told the affiant that on June 1, 2013, defendant came to his house to sell
him pills.
On June 7, 2013, Shorty contacted the affiant and showed him an exchange of text
messages with defendant in which defendant indicated he still had drugs for sale.
¶ 9. Defendant acknowledges that information contained in the affidavit may have
provided probable cause that a crime had been committed, but argues that it did not provide
probable cause that potential evidence of a crime would be found at the specific Windmill Point
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Road residence stated in the affidavit. We disagree. There was ample information in the affidavit,
including defendant’s own statement to police, for an independent judge to reasonably conclude
that defendant and his partner had purchased illegal amounts of PSE and that defendant possessed
illegal drugs in his residence. The affidavit contained firsthand information of defendant storing
drugs in private places within his residence, which was consistent with the affiant’s statement as
to the habits of drug traffickers.
¶ 10. As for the location of that residence, approximately three weeks before the search
warrant was executed a police officer informed the affiant that a confidential informant had told
him that defendant and his domestic partner were manufacturing methamphetamine in their
residence. The following day the affiant “travelled to [the specified] Windmill Dr.,* Alburgh”
address and “verified” that the address was a trailer with the specified street number on the outside.
One week later, after receiving a report from another police officer that a reportedly reliable
confidential informant stated that defendant was making methamphetamine at a trailer in which he
was living towards the end of Windmill Point Road in Alburgh, the affiant conducted surveillance
at the Windmill Point Road address specified in the affidavit and observed a car registered to
defendant leave the residence, stop at a gas station where defendant’s domestic partner got out,
and then proceed to another residence in which there was a reported methamphetamine operation.
This information was sufficient for an independent magistrate to objectively infer that evidence of
a crime would be found at the Windmill Point Road address specified in the affidavit. See State
v. Melchior, 172 Vt. 248, 251, 775 A.2d 901, 904 (2001) (stating that standard for finding probable
cause that evidence of crime will be found in place to be searched “requires something less than
the more-likely-than-not standard we rejected in State v. Town, 158 Vt. 607, 613-14, 615 A.2d
*
Defendant did not suggest to the trial court, and has not suggested on appeal, that the
Windmill Dr. address referred to in one paragraph of the affidavit is a different residence than the
Windmill Point Road address referred to in another paragraph of the affidavit.
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484, 487-88 (1992)”); United States v. Gaviria, 805 F.2d 1108, 1115 (2d Cir. 1986) (stating that
“the probable cause standard does not deal with hard certainties, but with probabilities” (quotation
omitted)).
¶ 11. Defendant argues, however, that neither prong of the Rule 41 test regarding hearsay
evidence was met in this case insofar as the affidavit failed to show that: (1) the informants were
inherently credible or provided reliable information in this instance; and (2) there was a factual
basis for the information furnished. Again, we disagree on both counts.
¶ 12. Regarding the informants’ credibility, defendant argues that the inherent credibility
of the confidential informant who provided the location of defendant’s residence could not be
established by the vague statement in the affidavit that he had provided information in the past
leading to an arrest. See State v. Betts, 2013 VT 53, ¶ 23, 194 Vt. 212, 75 A.3d 629 (concluding
that state trooper’s statement in affidavit that confidential informant had “provided . . . information
in the past that has led to the arrest of at least three separate individuals for various narcotics
offenses” did not permit independent analysis of informant’s credibility (quotation marks
omitted)); Robinson, 2009 VT 1, ¶ 9 (arriving at same conclusion with respect to police officer’s
statement in affidavit that confidential informant “has provided me reliable and credible
information in the past” concerning cocaine deals in Addison County that “I have been able to
confirm” as “accurate” (quotation marks omitted)). Defendant further argues that there was
nothing to indicate that the information on this particular occasion was reliable based on either the
confidential informant acting against penal interest or the police corroborating the information in
any significant way. Defendant asserts that the police corroboration of the confidential informant
involved only brief surveillance of the residence that did not reveal any criminal activity. See
Betts, 2013 VT 53, ¶ 27 (“[The information corroborated must relate in some way to the criminal
activity alleged.”); see also Robinson, 2009 VT 1, ¶ 16 (same); Goldberg, 2005 VT 41, ¶ 14
(same).
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¶ 13. To be sure, the affiant did not observe any criminal activity in corroborating the
confidential informant’s information concerning the location of defendant’s residence. But the
finding of probable cause does not rest in this case on the statements of the confidential informant.
Rather, the evidence of criminal activity at his residence was provided by other information in the
affidavit, including the record of defendant’s and his domestic partner’s regular and illegal
purchases of PSE products, defendant’s own statements to police concerning his drug use, and
most particularly Shorty’s statements tying defendant’s drug and manufacturing operation to his
residence. In contrast, in the cases cited by defendant in support of his argument, the information
provided by confidential informants, which did nothing to confirm allegations of the defendants’
criminal activities, was the only information in support of the affidavit. See Robinson, 2009 VT
1, ¶ 12 (“Here, the confidential informant was the only source of the information relied on by the
affiant, defendant was otherwise unknown to police, and there were no other indicia of
credibility.”); see also Betts, 2013 VT 53, ¶¶ 2, 27 (summarizing facts); Goldberg, 2005 VT 41,
¶¶ 2-3, 14 (same).
¶ 14. Defendant acknowledges the trial court’s findings that statements provided by
Shorty and the named individual’s girlfriend were inherently credible because the former was
corroborated in part by the affiant and the latter was made against penal interest. He contends,
however, that those statements provided “no substantial evidence relative to the charged crime of
manufacturing” methamphetamine. But the issue is whether the information in the affidavit
revealed circumstances from which a person of reasonable caution would conclude that evidence
of a crime, not necessarily the crime of manufacturing methamphetamine, would be found in the
place to be searched. See Zele, 168 Vt. at 157, 716 at 835-36. The statements made by Shorty
and the named individual’s girlfriend, in combination with other information in the affidavit,
satisfied this standard with respect to the possession of PSE, if nothing more.
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¶ 15. For similar reasons, we reject defendant’s contention that the factual-basis prong of
Rule 41 was not met. Defendant acknowledges that the trial court found some of statements made
by Shorty and the girlfriend to be based on first-hand knowledge, which satisfies the factual-basis
prong. See Arrington, 2010 VT 87, ¶ 13 (stating that factual-basis prong is satisfied when “the
informant provides first-hand information”); see also Betts, 2013 VT 53, ¶ 20 (same). Defendant
argues, however, that none of those statements indicated that either the girlfriend or Shorty
personally observed defendant manufacturing methamphetamine. The argument does not
withstand scrutiny. The named informants did not need to actually witness defendant
manufacturing methamphetamine for them to have provided sufficient information to support an
independent determination that evidence of that crime would be found at the location to be
searched. In any event, as noted, their statements were sufficient for a neutral judge to determine
that evidence of a crime—illegal possession PSE—would be found there.
Affirmed.
FOR THE COURT:
Associate Justice
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