State v. Goldberg, 2005 VT 41 (VT 3/25/2005)

• Citation: 2005 VT 41
• Decision Date: 25 March 2005
• Docket Number: No. 2003-573,No. 2003-550,2003-550,2003-573
• Court: United States State Supreme Court of Vermont
• Parties: State of Vermont v. Tad A. Goldberg State of Vermont v. William Anderson

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2005 VT 41

State of Vermont v. Tad A. Goldberg

State of Vermont v. William Anderson

No. 2003-550

No. 2003-573

Supreme Court of Vermont

March 25, 2005

On Appeal from District Court of Vermont, Unit No. 2, Addison Circuit, Helen M. Toor, J.

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Paul S. Volk and Jason J. Sawyer of Boldgett, Watts & Volk, P.C., Burlington, for Defendant-Appellant Goldberg.

Robert P. Keiner, Middlebury, for Defendant-Appellant Anderson.

PRESENT: Dooley, Johnson, Skoglund and Reiber, JJ., and Allen, C.J. (Ret.), Specially Assigned

ALLEN, C.J. (Ret.), Specially Assigned.

¶ 1. Defendants Tad Goldberg and William Anderson were convicted separately of cultivating and possessing marijuana in violation of 18 V.S.A. § 4230(a)(2), (4) after a police search uncovered a growing operation in their home. They now take this consolidated appeal, contending: (1) that the district court erred in admitting evidence seized during the search because the authorizing warrant issued without probable cause; and (2) that the district court erred in failing to conduct a hearing on the warrant's merits pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Defendants argue that the warrant should not have issued based solely on an uncorroborated tip from an informant with a significant criminal record, particularly when the informant hoped to exchange his information for consideration in a pending prosecution. We agree and conclude that the warrant issued without probable cause. We therefore reverse the district court on this ground, and do not reach the issue of whether the facts required a Franks hearing in this case.

¶ 2. In November 2002, Chittenden County State's Attorney John St. Francis contacted Burlington Police Detective Shawn Burke to advise him that a man facing DWI charges had come forward with information about a marijuana growing operation in Ferrisburg. Detective Burke then met with the informant, Patrick Dower, and his attorney to discuss the details of the operation. Dower said that he had seen roughly forty marijuana plants at a house occupied by several former college students-including defendants-from Brandon. He described some details about the growing operation, including its location in a basement crawl space, and the lighting and drying mechanisms employed. Dower also claimed that on November 8, 2002, he accompanied defendants on a trip to Burlington to conduct "business" with a man who sold the marijuana they cultivated.

¶ 3. Detective Burke asked Dower to accompany him on a drive-by of the house, and he then ran a Department of Motor Vehicles (DMV) check on the names that Dower provided. The records check turned up three of the four names, and it revealed that each of the three had previous addresses in Brandon. Although the DMV records showed the Ferrisburg address for two of the individuals, it indicated that defendant Anderson resided in South Burlington. The records also indicated that defendant Goldberg had once been a student at the University of Vermont. Detective Burke then asked Dower to return to the Ferrisburg house that evening to confirm that the cultivation was ongoing. After receiving confirmation, Detective Burke prepared an affidavit recounting Dower's information and the result of the DMV check, which he then submitted as part of his application for a warrant authorizing the search of defendants' home.

¶ 4. The district court issued the warrant, and the resultant search uncovered a significant growing operation and evidence of marijuana distribution. Defendants were then arraigned and charged with marijuana cultivation and possession pursuant to 18 V.S.A. § 4230(a)(2), (4). Defendants later submitted motions seeking to suppress the evidence seized during the search and dismiss the proceedings. The motions alleged that the warrant should not have issued without some independent corroboration of the information Dower provided, and that Detective Burke's affidavit contained several false statements and omitted essential information in reckless disregard of the truth.

¶ 5. At a consolidated motion hearing, Detective Burke conceded that he had not presented the court with information about the consideration Dower expected to receive in his pending prosecution, nor had he provided the court with the details of Dower's criminal history. Had he performed a check of Dower's record he would have discovered several criminal offenses, including possession of stolen property and petit larceny. Detective Burke acknowledged, however, that he had not investigated Dower as thoroughly as he would a typical informant because Dower came to him through a State's Attorney, and he had an attorney present at the initial interview. He believed Dower's lawyer would advise him of the penalties for false reporting, making it less likely that he would lie.

¶ 6. Defendants also pressed Detective Burke to explain why his affidavit in support of the warrant contained several factual inaccuracies. First, defendant Goldberg demonstrated that he was out of the country on November 8, 2002, making it impossible for Dower to accompany him on a trip into Burlington. Second, defendants argued that the affidavit incorrectly identified a fourth member of their household, a "Dave" or "Dan" thought to be romantically linked to a female roommate. Third, defendants noted that Burke's affidavit asserted that Dower had identified several "cloned" plants at the residence, but Dower testified during his deposition that he could not recognize a marijuana plant, much less a "clone," without assistance. Finally, the affidavit stated that Dower had accompanied defendants to a distributor's house in Burlington to "conduct business," but Dower later denied making this trip during his deposition. Detective Burke acknowledged some of the inaccuracies, but was surprised to learn that Dower had denied recognizing the plants or making the trip to the distributor's house.

¶ 7. Given these inaccuracies and omissions, defendants made two arguments to the court. First, they argued that the affidavit, which simply recounted Dower's story with little independent corroboration and without mentioning his criminal record or detailing his pending prosecution, did not establish probable cause to issue the warrant. Second, defendants argued that the factual inaccuracies, coupled with the omission of Dower's criminal history, compelled the court to conduct a Franks hearing to reevaluate the affidavit. The court denied the motion to suppress, however, and declined to hold an additional hearing. Defendants then entered conditional nolo contendre pleas, and this appeal followed.

¶ 8. We defer to a judicial officer's finding of probable cause, and we will not subject a supporting affidavit to "hypertechnical scrutiny." State v. Demers, 167 Vt. 349, 353, 707 A.2d 276, 278 (1997) (quotations omitted). 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. Morris, 165 Vt. 111, 129, 680 A.2d 90, 102 (1996). We must, however, examine the information available to the court at the time the warrant issued, without reference to whether the search turned up the evidence the informant described. See State v. Cooper, 163 Vt. 44, 51, 652 A.2d 995, 999 (1994) (explaining that "key inquiry" in determining whether court had probable cause to issue warrant is "whether the information provided in the affidavit" justifies the search (quotations omitted and emphasis added)).

¶ 9. In two decisions rendered in the 1960s, the U. S. Supreme Court established a two-pronged test to evaluate probable cause determinations based on hearsay evidence. Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969). The first prong requires an analysis of the informant's basis of knowledge, while the second examines his or her veracity. Aguilar, 378 U.S. at 114; Spinelli, 393 U.S. at 413. Although the Supreme Court has since abandoned this standard and held that the United States Constitution requires a "totality of the circumstances" approach to probable cause determinations, Illinois v. Gates, 462 U.S. 213, 238-39 (1983), we have continued to apply the two-pronged test to cases decided under the Vermont Constitution, State v. Alger, 151 Vt. 315, 318, 559 A.2d 1087, 1090 (1989). The Aguilar-Spinelli standard strikes an appropriate balance between individual Vermonters' right to privacy and the police's important interest in preventing crime, and it has since been codified in Vermont Rule of Criminal Procedure 41(c).

¶ 10. Rule 41 provides, in relevant part:

The finding of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is 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(c). To satisfy the Rule's "factual basis" prong, the informant's tip "must transmit the factual basis for the conclusions, so that the magistrate may make his own direct analysis." Alger, 151 Vt. at 319, 559 A.2d at 1090 (quotations omitted). In this case, Detective Burke's affidavit reported that Dower gathered his information based on personal observations, and therefore defendants do not dispute that the first part of the test is satisfied. Rather, defendants challenge Dower's "credibility" pursuant to the Rule's second prong.

¶ 11. An affidavit may establish an informant's credibility in either of two ways: (1) by demonstrating his or her inherent credibility as a source; or (2) by demonstrating the reliability of the information he or she has provided on the occasion in question. Id. at 320, 559 A.2d at 1091; Mor...