State v. Robinson

• Decision Date: 16 January 2009
• Docket Number: No. 2007-321.,2007-321.
• Citation: 2009 VT 1,969 A.2d 127
• Parties: STATE of Vermont v. Na-Im ROBINSON.
• Court: Vermont Supreme Court

969 A.2d 127

2009 VT 1

STATE of Vermont v. Na-Im ROBINSON.

No. 2007-321.

Supreme Court of Vermont.

January 16, 2009.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

REIBER, C.J.

¶ 1. Defendant Na-Im Robinson appeals from the Addison District Court's denial of his motion to suppress evidence obtained upon execution of a search warrant on his vehicle. We conclude that the judge lacked probable cause to issue the warrant. Thus, we reverse.

¶ 2. On May 6, 2004, a Vermont police officer received information from a confidential informant that a twenty-six-year-old black male named "Naim" would be driving to Vermont from Pennsylvania with cocaine in his vehicle. The informant described the vehicle as a silver Ford Taurus with New Jersey license plates, and said that it would enter Vermont on Route 4 and then "probably" travel north on Route 30 toward Middlebury between 12:30 and 1:30 p.m. that day. Based on this information, the officer traveled south from Middlebury to Route 4, where he turned west toward the New York border. He soon saw a silver Taurus with New Jersey plates, driven by a young black male, traveling east. He turned around to follow the vehicle. The officer observed that the vehicle was speeding, and also saw it make an illegal pass.

¶ 3. After calling in another officer to assist, the first officer pulled the vehicle over and identified defendant as the driver. The officers informed defendant that they had reason to believe he was trafficking cocaine, which he denied. Defendant also denied consent to search the vehicle. He called his mother, a Middlebury resident, and she came to pick him up. He left his car with the officers, and they impounded the vehicle and applied for the search warrant at issue here.

¶ 4. In the affidavit in support of the search warrant, one of the officers stated that the informant "has provided me reliable and credible information in the past. I have been able to verify this [informant's] previous information and found it creditable. This [informant] is cooperating ... for financial reasons and not because of current criminal charges." The affidavit, which was typed, also had a handwritten addendum stating that "[t]he information this [informant] has provided has concerned Addison County cocaine deals, their customers, addresses, and vehicles that they are driving. I have been able to confirm that this information was accurate." Based on the affidavit, the court found probable cause to issue a search warrant for the car and any containers therein. Upon executing the warrant, the officers found eighteen plastic baggies containing a total of approximately ten ounces of cocaine in a suitcase in the trunk, along with drug paraphernalia.

¶ 5. Defendant moved to suppress the evidence obtained in executing the search warrant on the basis that the affidavit in support of the warrant established neither the informant's reliability nor the basis of his or her knowledge. The trial court denied the motion, finding that the affiant's statement, although it did not contain "great detail," was sufficient to conclude that the informant had provided reliable information in the past.

¶ 6. Our review of the trial court's finding of probable cause is deferential. State v. Goldberg, 2005 VT 41, ¶ 8, 178 Vt. 96, 872 A.2d 378. "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.'" Id. (quoting State v. Morris, 165 Vt. 111, 129, 680 A.2d 90, 102 (1996)). We view the affidavits in support of probable cause in a "common sense manner" and do not subject them to "hypertechnical scrutiny." State v. Defranceaux, 170 Vt. 561, 562, 743 A.2d 1074, 1075 (1999) (mem.) (internal quotations and citation omitted). When, as in this case, the finding of probable cause rests on hearsay incorporated into an affidavit, we employ the two-part approach codified in Vermont Rule of Criminal Procedure 41.¹ 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(c).

¶ 7. Defendant argues that the affidavit in this case did not meet either the credibility requirement or the factual-basis requirement. We agree that the affidavit was insufficient to establish the credibility Rule 41 requires.

¶ 8. Credibility may be established "in either of two ways: (1) by demonstrating [the informant's] inherent credibility as a source; or (2) by demonstrating the reliability of the information he or she has provided on the occasion in question." Goldberg, 2005 VT 41, ¶ 11, 178 Vt. 96, 872 A.2d 378. Defendant contends that the affidavit did not establish the informant's inherent credibility because the affiant's statements about the informant's past performance were so "conclusory" and "vague" as to prevent the judge from making an "independent judicial determination" of the informant's credibility. See Aguilar, 378 U.S. at 114-15. Instead, defendant contends, the court had to rely solely upon the officer's assessment of credibility. We agree with defendant that the information available to the judge was insufficient to allow the independent credibility assessment our law requires.

¶ 9. An informant's inherent credibility is often established by evidence that he or she has provided accurate information in the past. Morris, 165 Vt. at 130, 680 A.2d at 102-03. There is a split in the state and federal courts as to whether an officer's bare assertion that an informant is "credible" or "reliable," or that the information provided was "true" or "correct," is sufficient to support a finding of inherent credibility. See 2 W. LaFave, supra, § 3.3(b), at 123 nn. 99-112 (citing cases). There is broad agreement, however, that an affiant's statement that an informant has provided information leading to arrests, convictions, or the discovery of admissible evidence does suffice to show inherent credibility. Id. at 121, 680 A.2d 90; see also, e.g., McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) (expressing "no doubt" that there was probable cause for warrant based on officer's testimony that informant had provided information resulting in numerous convictions of named individuals); United States v. Formaro, 152 F.3d 768, 770 (8th Cir.1998) (informant's credibility established by affiant's recitation that informant "had supplied information fifteen times and the information had led to two search warrants, four arrests and five drug charges").² Here, the situation is somewhere between these two extremes. As noted, the officer stated that the informant:

has provided me reliable and creditable information in the past. I have been able to verify this [informant's] previous information and found it creditable. ... The information this [informant] has provided has concerned Addison County cocaine deals, their customers, addresses and vehicles that they are driving. I have been able to confirm that this information was accurate.

This statement amounts to something more than a bare assertion of reliability, and presents a close question. The officer affirmed that the informant's past information had "concerned" illegal activities, but did not aver that the information had led to convictions, arrests, evidence, or even search warrants. It will be useful to review the cases from the several other jurisdictions that, like Vermont, still apply the Aguilar/Spinelli standard, as well as the United States Supreme Court's pre-Gates cases.

¶ 10. In Alaska, the courts require more than a mere assertion that an informant has provided reliable information in the past. Clark v. State, 704 P.2d 799, 804 (Alaska Ct.App.1985). Rather, the affidavits must aver that the informant's past information resulted in particular arrests or convictions. Schmid v. State, 615 P.2d 565, 575 (Alaska 1980) (informant worked with police for four years and had provided information resulting in ten seizures of narcotics). In Massachusetts, even a statement that an informant had "previously provided information which led" to the arrest of a named individual was held insufficient, because the affidavit failed to specify what sort of information the informant had provided, or how that information was connected to the arrest. Commonwealth v. Rojas, 403 Mass. 483, 531 N.E.2d 255, 258 (1988).

¶ 11. There is some authority for the proposition that an affidavit like this is sufficient to establish credibility, but we do not find it persuasive. In Washington, a line of cases seems to suggest that bare assertions that an informant has given reliable information in the past are sufficient to allow a magistrate to make an independent assessment of credibility. See State v. Smith, 110 Wash.2d 658, 756 P.2d 722, 726 (1988) (en banc); State v. Woodall, 100 Wash.2d 74, 666 P.2d 364, 366 (1983) (en banc). But the Washington cases that arguably suggest that affiants' conclusions about credibility are sufficient all misrepresent the facts and reasoning of the earlier case on which they rely, omitting to mention that the affidavit in that case, in addition to stating that the informant was "reliable" and had given "true and correct" information in the past, stated that the informant had made controlled drug purchases as well. See State v. Fisher, 96 Wash.2d 962, 639 P.2d 743, 746 (1982) (en banc). We are not persuaded by the rather pro-forma analysis in the cases purporting to apply Fisher.

¶ 12. The pre-Gates cases from the United States Supreme Court also support the conclusion that the...