State v. Stewart

• Decision Date: 09 February 1971
• Docket Number: No. 102-69,102-69
• Citation: 274 A.2d 500,129 Vt. 175
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Gordon STEWART.

Page 500

274 A.2d 500

129 Vt. 175

STATE of Vermont v. Gordon STEWART.

No. 102-69.

Supreme Court of Vermont.

Feb. 9, 1971.

Frank G. Mahady, State's Atty., for the State.

William M. McCarty, Jr., Brattleboro, for defendant.

Before HOLDEN, C. J., BARNEY, SMITH and KEYSER, JJ., and LARROW, Superior Judge.

BARNEY, Justice.

After a search of the premises where the respondent lived, he was charged with the offense of possession of a regulated drug called Demerol, with intent to sell the same, in violation of 18 V.S.A. § 4224(d). The respondent's motion to suppress was denied, and he went to trial. He was found guilty and brings this appeal, asserting fatal defects in the search warrant proceedings, and a factual shortage in the proof of guilt so gross as to require the invalidation of the conviction.

A warrant was issued authorizing a search for regulated drugs at the residence of the respondent, giving the street address. The search was made and a quantity of material seized, including some items taken from the crotch of a tree in the back yard of the premises. Just prior to the impanelling of the jury, a motion to suppress was filed and heard. Upon its denial, the case proceeded.

The challenge to the warrant is broad, and we will undertake to treat the issues in the order they arose. The application was made to a district judge, a magistrate authorized to issue such warrants under 13 V.S.A. § 4701. The application was accompanied by an affidavit under oath, made by the state's attorney, as called for in 13 V.S.A. § 4702. Also attached to the application was a statement, asserted to be under oath, setting forth, by an eyewitness, observed facts, in specific detail, concerning the use and secretion of drugs on the premises to be searched. This was signed, but had no proper jurat attached. That shortcoming was accounted for, but not until after issuance.

First, it should be noted that the Vermont statutory requirements were fulfilled. The significant question is whether the Fourth Amendment requirement of a showing of probable cause, supported by oath or affirmation, before the magistrate, was satisfied. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, gives guidance in the matter. Mr. Justice Harlan defines the test, derived from Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, as two-pronged. One, the application must set forth sufficient underlying circumstances to enable the magistrate to make an independent judgment as to the validity of the information received by the applying officer. Second, there must be something in the application sustaining the credibility of the source of the information and the reliability of what is reported. The detail, precision and specificity of the informant's report may be taken in aid of all this.

Treating the eyewitness here as the informant referred to in these cases, as it seems clear is proper, his declaration and description of his first-hand knowledge meet even the stringent requirements claimed for the Aguilar case by Mr. Justice White in his concurrence in Spinelli v. United States, supra, 393 U.S. 410, 425, 89 S.Ct. 584, 21 L.Ed.2d 637, 649.

With the informant's facts before him, supported by the state's attorney's application, the judge had sufficient probable cause demonstrated to support the issuance of the warrant; and could, for himself, evaluate the persuasiveness of the facts relied on in the application. Aguilar v. Texas, supra, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723, 728. The warrant was validly issued.

It is also contended that the search warrant was defectively general in its description of the articles to be seized, and insufficiently particular in defining the premises to be searched. The warrant was a direction to search for 'contraband, to wit, regulated drugs' and designated the place to be searched as 'the residence of one Gordon Stewart' and gave a description and the street address, including the town. In Steele v. United States, No. 1, 267 U.S. 498, 503-504, 45 S.Ct. 414, 69 L.Ed. 757, 760-761, it is said that a description of the premises is adequate if the officer can, with reasonable effort, ascertain and identify the place intended. In that case, too, the description of the contraband sought as 'cases of whiskey' was not only not too broad, but justified the taking of it in jugs and barrels, the seizing of gin, alcohol and bottling machinery, above and beyond the whiskey taken in cases. The warrant met constitutional requirements in this particular, also.

At some point during the search of the house, an officer went to a tree in the yard and recovered some objects from the crotch of the tree. This is challenged by the respondent as an unauthorized aspect of the search. It involves a concept called curtilage-'the open space situated within a common enclosure belonging to a dwelling house.' Ballantine, Law Dictionary (2d edition).

The curtilage is usually considered sufficiently within the premises to be subject to Fourth Amendment protection. If the tree was within this protected area, it was also within the scope of the warrant. If, however, the tree was without the curtilage, under Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898, 900, the search was unobjectionable even if made without a warrant and as a trespass. Since the entry here was authorized by the warrant, the search of the tree was certainly valid under either view of the matter.

The arrival of the officers brought the mother of the respondent, one of the owners and occupants of the premises, to the door. The warrant was read to her and she was served with a copy. This was required on account of her capacity as an owner. As to her, the search of the premises was then lawful, and any contraband or like material found there was proper for seizure, even though it may have been the secreted property of the respondent. Frazier v. Cupp. 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684, 693-694. It cannot be questioned that the respondent has standing, as an occupant, to challenge the lawfulness of the search. However, he is also bound by the lawfulness of the search of his parent's property. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797, 802.

But the respondent further objects to the search because he claims that no service of the warrant was made on him, and his room was entered without his consent while he was in it. His position is that this is contrary to Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828.

There is certainly no doubt under present law that he has standing to object to an illegal search of his own room. Jones v. United States, 362 U.S. 257, 267, 706, 80 S.Ct. 725, 4 L.Ed.2d 697. The first question is, did such a search occur. The evidence at the suppression hearing left that issue indeterminate, even taking the evidence in the light most favorable to the respondent. But this is of no consequence in any event, because the evidence is undisputed that nothing from any search of his room was offered in evidence. Thus, he has no grounds...