State v. Defranceaux, 98-210.

• Decision Date: 28 October 1999
• Docket Number: No. 98-210.,98-210.
• Citation: 743 A.2d 1074
• Parties: STATE of Vermont v. Carter DEFRANCEAUX.
• Court: Vermont Supreme Court

743 A.2d 1074

STATE of Vermont v. Carter DEFRANCEAUX.

No. 98-210.

Supreme Court of Vermont.

October 28, 1999.

Present AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Defendant appeals from a conviction for possession of marijuana, pursuant to a conditional plea under which he may appeal the denial of a motion to suppress certain evidence gathered pursuant to a search warrant. We affirm.

The facts are not in dispute. On June 12, 1995, an employee of Mail Boxes, Etc., in Tucson, Arizona, contacted the local police narcotics squad to investigate two suspicious packages to be delivered to Vermont. The packages were opened pursuant to a policy of Mail Boxes, Etc. A Tucson officer responded and took the packages. Believing them to contain contraband, the officer contacted police in Vermont and eventually communicated with the Vermont State Police. The officer told the trooper that each package contained a white, five-gallon, plastic bucket in which there was a large bundle of marijuana wrapped in duct tape, and that the total weight of the marijuana was about twenty pounds. The officer also indicated that the return address was fictitious and that the listed sender was "T-SHIRT DESIGN AND COLOR," a business that could not be located by Tucson directory assistance. The listed contents of the package were t-shirts and dye. The officer took a sample of the marijuana and photographed the packages before sending them to Vermont.

The addressee of the packages was Jason Marshall of RD#3, Box 83A, St. Johnsbury, Vermont. The trooper investigated but could not find a mailbox identified as 83A. The packages arrived at the state police barracks on June 14, and troopers, posing as UPS carriers, attempted a delivery on June 15. By that time, a formerly unmarked mailbox was marked as Box 83A, and the troopers delivered to the house corresponding to the mailbox. When the troopers knocked, defendant answered and indicated he would sign for Jason Marshall, who was not there at the time. The troopers noted that defendant was "very nervous" but appeared glad to receive the packages.

The troopers left a surveillance team on the road from the house and drove away. Shortly thereafter, the surveillance team indicated that a truck was leaving the house. Troopers stopped the truck, which contained defendant and one other person, and returned with it to the house. Meanwhile, the delivery troopers returned to the house and entered it, determining that the packages were within the house, unopened.

Based on the above information, the investigating trooper obtained a search warrant for the house and the truck. Marijuana, in addition to that shipped, was found in the house and in the truck. Defendant moved to suppress the fruits of the search on four main theories: (1) the affidavit in support of the warrant application was insufficient to establish probable cause because it did not show how the substance in the package was identified as marijuana; (2) the affidavit was based on information gathered in the initial, unwarranted search of the house by the delivery troopers, and that search was unlawful; (3) the description of items to be searched for was overbroad; and (4) the search warrant did not authorize a search for the marijuana delivered to the house or for other contraband. The district court rejected each of these contentions, and defendant renews them on appeal.

The standard for probable cause for a search is whether "a person of reasonable caution would conclude that a crime has been committed and that evidence of the crime will be found in the place to be searched." State v. Platt, 154 Vt. 179, 185, 574 A.2d 789, 793 (1990). Affidavits in support of probable cause "must be viewed in a common sense manner and not be subject to hypertechnical scrutiny." State v. Ballou, 148 Vt. 427, 434, 535 A.2d 1280, 1284 (1987). In determining whether probable cause is present, we must examine the totality of the circumstances. See State v. Emmi, 160 Vt. 377, 381, 628 A.2d 939, 942 (1993). The magistrate's determination of probable cause is entitled to great deference, and we review to ensure that the magistrate had a substantial basis for concluding that probable cause existed. See State v. Maguire, 146 Vt. 49, 53, 498 A.2d 1028, 1030-31 (1985).

Defendant's first challenge focuses exclusively on the identification in Arizona of the content of the packages as marijuana. Defendant argues that the affidavit is deficient because it fails to specify who identified the contents as marijuana and how that determination was made. Viewing the affidavit in a common sense manner, as we must, we think it fairly conveys that the identification was made by the officer of the Tucson Narcotics Trafficking Interdiction Squad. We agree with defendant, however, that although we can rely on the "experience and training of an officer" to make such an identification, State v. Pierce, 190 N.J.Super. 408, 463 A.2d 977, 981 (1983), the affidavit is deficient in...