State v. Ballou

• Decision Date: 11 September 1987
• Docket Number: No. 85-021,85-021
• Citation: 148 Vt. 427,535 A.2d 1280
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Gregory R. BALLOU.

Page 1280

535 A.2d 1280

148 Vt. 427

STATE of Vermont v. Gregory R. BALLOU.

No. 85-021.

Supreme Court of Vermont.

Sept. 11, 1987.

Jeffrey L. Amestoy, Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Stephen Norten, Law Clerk, on the brief, Montpelier, William D. Wright, Bennington County Deputy State's Atty., Bennington, and J. Paul Potash, Burlington, Historical Consultant, on the brief, for plaintiff-appellant.

David W. Curtis, Defender General, David Carpenter, Appellate Defender, and Gregory Wirth, Law Clerk, on the brief, Montpelier, for defendant-appellee.

Before ALLEN, C.J., DOOLEY, J., BARNEY, C.J. (Ret.), KEYSER, J. (Ret.), and SPRINGER, District Judge (Ret.), Specially Assigned.

DOOLEY, Justice.

Based on evidence obtained by two separate searches of his person, each pursuant to authority of a warrant, defendant was charged with two counts of possession of a regulated drug with intent to sell, in violation of 18 V.S.A. § 4224(f)(1)(A). Defendant moved to suppress the evidence by pretrial motion, contending that the warrants were not founded on probable cause. The trial court concluded that the affidavit supporting the first warrant lacked sufficient evidence of criminal activity particularized with respect to the defendant, and granted the motion with respect to the first search. The court also suppressed the fruits of the second search on the same grounds. By interlocutory appeal, the State claims error in those decisions. We reverse.

I. THE FACTS

This case turns entirely on the affidavits submitted to the judicial officer in support of the application for the warrants. The affidavit supplied for the first warrant is the most important. It was prepared by a state police officer and details the facts gathered in an eight month investigation of drug trafficking at a tavern (the Tavern) in Bennington County, in which defendant was the bouncer.

The major facts and allegations set forth in the six and one-half page supporting affidavit are as follows.

The affidavit describes fifteen separate events involving the Tavern and covers a period from November, 1983 through July 15, 1984--three days before the warrant was issued. In addition, the affidavit describes investigatory findings to corroborate details supplied by informants and to identify the owner, employees and patrons of the Tavern.

Of the fifteen events, nine were related to the affiant by four confidential informants. The first described himself as a patron of the Tavern. In January, 1984, he stated that he purchased cocaine from the bartender whom he identified by name and by description. He further stated that he observed other people purchasing cocaine in the Tavern and that the transactions took place in the rear of the building by the "fooze ball machine." He stated that some of the drug sales were made by the bouncer whom he identified from a photographic lineup as the defendant in this case.

At the end of January, this informant again reported that he observed a recent drug transaction at the Tavern, involving the bartender.

The second confidential informant reported in March, 1984 that while present in the Tavern he observed the owner sell "speed" to another person. He also reported the names of the owner and employees of the Tavern.

The third confidential informant spoke with another police officer in June. She reported that she had observed the bartender at the Tavern sell cocaine to her boyfriend. She reported that it was known that drugs of all types were available at the Tavern and stated the prices of various kinds of drugs. Further, she reported that to buy drugs in the Tavern, one normally spoke with the bartender.

This informant made another report on July 5th. She described buying LSD at the Tavern and stated that the transaction took place in the rear of the bar.

The fourth informant provided the most information. On July 8th, this informant reported that he had purchased drugs in the Tavern in the past, with the most recent transaction occurring about two weeks earlier. He described how drugs were sold and indicated he normally dealt with the bartender. He also advised that cocaine was also sold by a regular customer whom he described.

The fourth informant reported that he and a friend tried to buy cocaine on the night of July 14th at the Tavern. No cocaine was available at that location. However, the defendant took them to his apartment and sold them a quarter ounce of cocaine.

On July 15th, the fourth informant made a controlled drug purchase at the Tavern. He was strip searched before entering the Tavern and after leaving it. He took in $25 in marked bills and returned with $5 and a quantity of LSD. He said he bought it from the regular patron that he had previously reported.

The affidavit provides no specific information about the credibility of the four informants. There is no indication that the informants provided information to the police in the past.

The other events described in the affidavit generally were the results of surveillance conducted outside and inside the Tavern. Law enforcement officers observed a regular pattern of persons entering the Tavern and leaving a short time later. In one instance, the officer observed a person leave the Tavern, enter his car and snort a substance the officer believed to be drugs. In another, persons left the Tavern, went to their automobile and passed around a cigarette which may have been marijuana. Surveillance within the bar showed a lot of activity at the rear near the "fooze ball machine."

The information gained by the officer from other sources about the employees--e.g., name, description, etc.--confirmed that supplied by the informants. In addition, the affiant determined that the bartender had been convicted of possession of marijuana two years earlier.

Based on the above information, the judicial officer issued a warrant to search the Tavern and the person of all employees present (named as the bartender, the defendant and the tavern owner) for drugs, records and paraphernalia used in drug trafficking. Upon the execution of the warrant, defendant was detained and taken to the police barracks. A search there found twenty-four packages of cocaine and $40 in cash.

The second search took place eight days later. The affidavit in support of the application for the second search warrant relied on the earlier affidavit and the results of the earlier search. In addition, the affiant stated that one day earlier an informant reported witnessing a drug sale in the Tavern. The sale was made by the bartender. The substance sold was retrieved and found to be cocaine.

Again defendant was detained during the search and taken to the police station. Again a quantity of cocaine and cash was found on the defendant.

II. DECISION BELOW

The defendant moved below to suppress the evidence obtained during the searches. The trial court granted the motion, finding numerous deficiencies in the affidavits. The court's conclusion emphasizes two defects: (1) there was inadequate information in the affidavit to tie defendant to drug activities at the Tavern and to support a finding that a search of defendant at the Tavern would turn up drugs; and (2) there was no information in the affidavit to allow the judicial officer to evaluate the credibility of the informants.

This interlocutory appeal seeks review of the suppression decision.

III. ISSUES

In the trial court, defendant based his motion to suppress on the Fourth Amendment to the United States Constitution; Article Eleven, Chapter One of the Vermont Constitution; and V.R.Cr.P. 41(c). In this Court, he argues that the difference between the two constitutional attacks involves the applicability of the United States Supreme Court decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). While he agrees that Gates sets the applicable standard for purposes of the United States Constitution, defendant urges that we reject the rationale of Gates under the Vermont Constitution and instead apply the pre-Gates standard from the leading cases of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). He further argues that use of the pre-Gates standard is required by V.R.Cr.P. 41(c).

The State bases its appeal on the Gates standard and urges rejection of an independent state constitutional rule for evaluating probable cause to support search warrants. Further, the State argues that the fruits of the search should be admissible based on the good faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). The defendant responds to the latter argument by urging that we reject a good faith exception to the exclusionary rule under the Vermont Constitution.

It is unnecessary for us to reach many of the issues raised by the parties. See, e.g., People v. Landy, 59 N.Y.2d 369, 452 N.E.2d 1185, 465 N.Y.S.2d 857 (1983) (unnecessary to decide whether to use Gates under the state constitution). Our standard for issuance of warrants based on hearsay is contained in V.R.Cr.P. 41(c). That rule requires that "there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is factual basis for the information furnished." The rule adopts the Aguilar and Spinelli standards. See Reporter's Notes to V.R.Cr.P. 41(c). Accordingly, the Gates standard is not applicable in Vermont unless V.R.Cr.P. 41(c) is modified. ¹

We find that the warrants in this case are valid under the standards announced in Aguilar and Spinelli as embodied in V.R.Cr.P. 41(c) and reverse. ² Accordingly, we need not decide whether, if the warrants were found invalid, the fruits of the search would be admissible under a good faith exception to the...