State v. Senna

• Decision Date: 02 August 2013
• Docket Number: No. 12–173.,12–173.
• Citation: 2013 VT 67,79 A.3d 45
• Parties: STATE of Vermont v. Loren SENNA.
• Court: Vermont Supreme Court

79 A.3d 45

2013 VT 67

STATE of Vermont

v.Loren SENNA.

No. 12–173.

Supreme Court of Vermont.

Aug. 2, 2013.

Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff–Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant–Appellant.

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

ROBINSON, J.

¶ 1. Defendant appeals from a decision of the superior court, criminal division, denying his motion to suppress the evidence and dismiss the charges against him. This suppression motion raises two questions. First, whether, in light of Vermont's law exempting qualifying registered patients from prosecution for possession and cultivation of marijuana, the smell of fresh marijuana outside a home, without determination of whether any occupants are registered patients, can support a finding of probable cause. Second, whether the hearsay statements of an identified neighbor were sufficiently credible to meet the requirements of Vermont Rule of Criminal Procedure 41(c) and the underlying constitutional requirements that rule embodies. We conclude that both the marijuana odor and the neighbor's statements were properly considered in the probable-cause analysis, and accordingly affirm.

¶ 2. The facts as found by the trial court and unchallenged by defendant on appeal are as follows. Responding to a report of a screaming child, a City of Burlington police officer visited defendant's apartment. The officer knocked on the door, and when defendant answered she informed the defendant and his partner of the complaint. The officer saw that there were two children inside the home who did not appear to be in distress. When the officer approached the residence she noted the odor of fresh marijuana approximately two feet from the front door. A second officer who arrived shortly thereafter also made this same observation, noting that the scent got stronger as the officer approached the door.

¶ 3. After spending some time in the home, the first officer left defendant's residence and spoke with a next-door neighbor who identified herself to the police. She reported that in the past she had seen defendant and his partner use heroin in front of their children. She told the officer that defendant and his partner had told her that they sell marijuana and heroin out of their home, that every day she observes a great deal of foot traffic of unfamiliar individuals in and out of the home at all times of day, and that frequently people mistaking her residence for theirs knock on her door looking to purchase marijuana or heroin.

¶ 4. Following these encounters, the officer obtained a warrant to search defendant's apartment. On the basis of evidence obtained in the search, the State charged defendant with cultivation of more than twenty-five marijuana plants and possession of marijuana.

¶ 5. Defendant filed a motion seeking to suppress the fruits of the search warrant and all evidence flowing from that. Defendant argued that he did not consent to the officer's entry into his home at the time of the initial encounter, so the court could not consider evidence obtained during that encounter; that the odor of marijuana on an outdoor porch attached to a multi-unit apartment building did not support a probable cause finding; that the odor of marijuana alone is not sufficient to support a finding of probable cause when a law enforcement officer has not first checked the Department of Public Safety registry to find out whether the suspect is authorized to possess the controlled substance; and that the statements of the neighbor of unknown credibility were uncorroborated and lacked any time frame to support a warrant.

¶ 6. The trial court agreed that the State had not established that the police officer's initial entry into defendant's home was consensual, and excluded the evidence the State gathered during that entry. See State v. Morris, 165 Vt. 111, 128–29, 680 A.2d 90, 102 (1996) (where portion of evidence in affidavit must be expunged, court must determine whether remaining information in affidavit establishes probable cause to support warrant). The court nonetheless denied defendant's suppression motion, concluding that the smell of fresh marijuana just outside the front door and the neighbor's statements provided probable cause to support the issuance of the search warrant.

¶ 7. Defendant entered a conditional guilty plea on the cultivation charge and appealed the trial court's ruling on the suppression motion. Defendant makes two arguments on appeal. First, he renews his argument that because of Vermont's law exempting qualifying registered individuals from prosecution for possession or cultivation of marijuana, the smell of fresh marijuana outside defendant's door cannot support a finding of probable cause unless the officer confirms that the suspect is not listed in the Department of Public Safety Registry. Second, he argues that the affidavit of probable cause did not establish the reliability of the named informant's hearsay statements.

¶ 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. Goldberg, 2005 VT 41, ¶ 8, 178 Vt. 96, 872 A.2d 378 (quotation omitted); see State v. Chaplin, 2012 VT 6, ¶ 9, 191 Vt. 583, 44 A.3d 153 (mem.) (stating that when motion seeks suppression of evidence seized pursuant to warrant, “the initial finding of probable cause by a judicial officer is given great deference” so as to encourage use of warrants (quotation omitted)). But though we defer to the judicial officer's factual determinations and inferences drawn therefrom, we review de novo the ultimate legal question of whether an affidavit's factual claims amount to probable cause. Id. “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.” Goldberg, 2005 VT 41, ¶ 8, 178 Vt. 96, 872 A.2d 378 (quotation omitted).

I.

¶ 9. The first question we consider is whether, in light of Vermont's “medical marijuana” law, the smell of fresh marijuana outside the entry to a home can be a factor supporting a finding of probable cause to search the house. Vermont law allows a person who has been diagnosed in the course of a bona fide health care professional-patient relationship with a debilitating medical condition, as that term is defined by statute, to go through a specific process to become a “registered patient.” 18 V.S.A. § 4473. A duly registered patient who complies with the requirements of the statute, including specific limits on the number of marijuana plants and usable marijuana by weight a registered patient can possess, is exempt from arrest or prosecution for possession or cultivation. 18 V.S.A. § 4474b; id. § 4472. The Department of Public Safety maintains a secure electronic database accessible to law enforcement twenty-four hours per day that allows law enforcement to verify, among other things, that a person or entity is a registered patient or caregiver.

¶ 10. Defendant argues that because Vermont law allows certain individuals under given circumstances to possess marijuana, the smell of unburned marijuana alone does not create probable cause that a crime has been or is being committed. He relies on a decision of the Massachusetts Supreme Judicial Court in which that court held that because Massachusetts law treated the possession of one ounce or less of marijuana as a civil rather than a criminal offense, the odor of marijuana cannot support suspicion of a crime. Commonwealth v. Cruz, 459 Mass. 459, 945 N.E.2d 899 (2011).

¶ 11. Because Vermont's “medical marijuana” law is readily distinguishable from Massachusetts's law decriminalizing the possession of small amounts of marijuana, we need not decide whether the Massachusetts Supreme Judicial Court's reasoning in Cruz is persuasive.¹ Vermont's “medical marijuana” law does not purport to decriminalize the possession of marijuana; it merely exempts from prosecution a small number of individuals who comply with rigid requirements for possession or cultivation. 18 V.S.A. § 4474b. In that sense, the law creates a defense to prosecution.

¶ 12. Even in Massachusetts, after the Cruz decision, the Massachusetts Supreme Judicial Court recognized, in a much more analogous context, that in establishing a prima facie case of probable cause, the Commonwealth was not required to disprove an affirmative defense—such as a defense that an individual possessing otherwise-contraband hypodermic needles was lawfully enrolled in a needle-exchange program—unless the defense “appear[ed] clearly and without contradiction on the record.” Commonwealth v. Walczak, 463 Mass. 808, 979 N.E.2d 732, 744 n. 13 (2012) (quotation omitted). Another Massachusetts case cited in Walczak,Commonwealth v. Landry, 438 Mass. 206, 779 N.E.2d 638 (2002), involved the question of whether police had probable cause to arrest an individual for illegal possession of a hypodermic needle when she produced a facially valid needle-exchange-program membership card, demonstrating that she was entitled to possess hypodermic needles.That court held that “when a person presents a facially valid exchange program membership card, a police officer may not lawfully arrest that person for violating [the law prohibiting possession of hypodermic needles] absent evidence that the card is invalid or the bearer is not entitled to possess it.” Id. at 642. Significantly, the court did not suggest that police had an affirmative duty, even in the absence of any evidence that a suspect was enrolled in a needle-exchange program, to rule out the possibility before making an arrest.

¶ 13. By analogy, at the time of the search in question, cultivation of marijuana was a crime in Vermont. 18...