State v. Veburst
| Decision Date | 15 February 1991 |
| Docket Number | No. 88-639,88-639 |
| Citation | 156 Vt. 133,589 A.2d 863 |
| Parties | STATE of Vermont v. Philip G. VEBURST. |
| Court | Vermont Supreme Court |
Thomas M. Kelly, Drug Prosecutor, Dept. of State's Attys., Montpelier, for plaintiff-appellee.
Walter M. Morris, Jr., Defender General, and David J. Williams and William Nelson, Montpelier, for defendant-appellant.
Before ALLEN, C.J., GIBSON, DOOLEY and MORSE, JJ., and PECK, J. (Ret.), Specially Assigned.
Defendant Philip Veburst appeals his conviction, after a court trial, for possession of two or more ounces of marijuana, 18 V.S.A. § 4224(f)(1)(B). He attacks the validity of a warrant issued to search his residence and the trial court's refusal to order disclosure of the identity of a confidential informant. We affirm.
On November 11, 1987, Vermont State Trooper Thomas Roberts received a phone call from Detective Sergeant William Northrup of the Vermont State Police. Northrup informed Roberts that Franklin County State's Attorney Investigator Gary Greenfield had contacted him with information Greenfield had received from a confidential informant ("the Greenfield informant") relating to the possible sale of illegal drugs by Philip Veburst at a residence in Morgan, Vermont. Roberts already had information from another confidential informant ("the Roberts informant"), received in August of 1987, to the effect that a person named Phil was selling drugs out of a house in Derby Line. A motor vehicle record check revealed that Philip Veburst matched the description given by the Roberts informant and lived where the informant reported that "Phil" was living. Roberts also learned that Philip Veburst had been arrested and transported to his current residence in Morgan on September 17, 1987. Veburst had been in an accident on that day and was taken to the hospital where he had an officer call his Morgan home and leave a message with two identified persons. One of those persons, Gil Tabor, was identified by the Greenfield informant as having purchased drugs from Philip Veburst.
On November 23, 1987, State Trooper Roberts applied for a warrant to search the house in Morgan. Roberts' accompanying affidavit stated in part:
It was related by Det. Northrup that the informant had told Gary Greenfield that two subjects had visited a subject named Philip Veburst at his residence in Morgan during the evening of 11/19/87 where approximately 1 lb. of marijuana and a quantity of hashish was observed in the bedroom of Veburst residence. This writer contacted Gary Greenfield being informed by him that his source of information who refused to be identified told him that he was familiar with one of the two subjects visiting Veburst, a Gil Tabor.
The affidavit also contained all of the information set forth above, including the information provided directly to Trooper Roberts in August by his informant. Trooper Roberts also provided a supplemental affidavit indicating that the Greenfield informant had worked for Investigator Greenfield in the past, making controlled buys of regulated drugs and providing information obtained by other drug informants.
The court issued a warrant authorizing the police to search Philip Veburst's house in Morgan. Trooper Roberts and five other members of the Vermont State Police executed the search and found seventeen pounds of marijuana, a quantity of hashish, and several firearms in a closet in defendant's bedroom. Defendant was later charged with possession of two or more ounces of marijuana, and possession of marijuana with intent to sell, in violation of 18 V.S.A. § 4224(f)(1)(B) (repealed in 1989). The latter charge was eventually dismissed.
Defendant filed a pretrial motion to suppress evidence obtained during the search, claiming that the affidavits supporting the search warrant failed to establish sufficiently the reliability of the two informants cited therein. The court determined that the affidavits showed the reliability of the Greenfield informant but that they failed to establish the reliability of the Roberts informant. The court denied the motion to suppress because it found that the affidavits were sufficient to justify the search warrant even when all information provided by the Roberts informant was deleted.
At that point, defendant tried a different tactic. He filed a motion to compel disclosure of the identity of the Greenfield informant for the purpose of challenging the basis of that informant's knowledge. He alleged that there was reason to believe that the law enforcement officials had acted in bad faith by using false information or information gained by government misconduct to obtain the search warrant in violation of the holding in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). The court denied the motion following an in camera inquiry of Investigator Greenfield.
Defendant raises two claims on appeal: (1) the trial court erred in denying his motion to suppress evidence because the affidavit failed to set forth facts sufficient to show the basis of the Greenfield informant's knowledge; and (2) the court's findings pursuant to his motion to compel were deficient because they failed to indicate whether the court during the in camera examination inquired properly into the issues raised by the motion.
Defendant first argues that the evidence obtained pursuant to the search warrant must be suppressed because the affidavit supporting the warrant application did not establish a sufficient factual basis for the Greenfield informant's story. Defendant's pretrial motion to suppress alleged that the affidavit failed to satisfy the standards for reliability set forth in V.R.Cr.P. 41(c). We recently affirmed that V.R.Cr.P. 41(c) requires the application of the two-prong test set forth in Aguilar v. Texas, 378 U.S. 108, 112-15, 84 S.Ct. 1509, 1512-14, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 415-16, 89 S.Ct. 584, 588-89, 21 L.Ed.2d 637 (1969). State v. Ballou, 148 Vt. 427, 535 A.2d 1280 (1987). In Ballou, we explained that:
[T]he first prong requires that the affidavit transmit the factual basis for any conclusions drawn by the informant so that the judicial officer can perform an independent analysis of the facts and conclusions [while] [t]he second prong requires that facts be presented to the judicial officer that show either the informant is inherently credible or that the information from the informant is reliable on this occasion.
Id. at 434, 535 A.2d at 1284 (citations omitted).
Defendant's motion to suppress was premised solely on the second or "reliability" prong--that the reliability of the informants had not been established. As noted above, the trial court granted defendant's motion as to the Roberts informant but denied it as to the Greenfield informant. On appeal, however, defendant has switched his theory and claims that the affidavit did not meet the first or "factual basis" prong of the test. Defendant insists that the affidavit does not show that the Greenfield informant had a sufficient basis of knowledge for the information that was supplied to the officers.
V.R.Cr.P. 12(b)(3) states that motions to suppress evidence on the ground that it was illegally obtained must be raised prior to trial. V.R.Cr.P. 12(f) provides in part:
Failure by the defendant to present any of the defenses, objections, or requests required by subdivision (b) of this rule to be made prior to trial, or to raise any other pretrial errors or issues of which the party has knowledge, at the times provided ... in these rules and subject to constitutional limitations, constitute waiver thereof.
Because defendant's motion to suppress was based solely on the reliability prong of the test, his failure to raise the factual basis objection prior to trial constitutes waiver of that issue. See, e.g., State v. Stanislaw, 153 Vt. 517, 528, 573 A.2d 286, 293 (1990). Further, we do not generally consider issues raised for the first time on appeal. Id. at 527-28, 573 A.2d at 292-93 ().
There is one exception to the preservation requirement--a finding of plain error. See V.R.Cr.P. 52(b); State v. Duff, 150 Vt. 329, 337-38, 554 A.2d 214, 219 (1988). We will find plain error only in the rare and extraordinary case where the error is obvious and so grave and serious that it strikes at the very heart of a defendant's constitutional rights or adversely affects the fair administration of justice. State v. Schmitt, 150 Vt. 503, 505, 554 A.2d 666, 667 (1988). We do not think the error, if any, rises to that level. While defendant filed a timely and detailed motion launching a facial attack on the reliability of the informants cited in the affidavit, he never questioned the basis of either informant's knowledge. The problem with the affidavit is that it is poorly drafted. As the trial court found in ruling on the motion to compel:
Although common sense supports a reading of [the] statement to mean that the informant was a firsthand witness to the information reported, the convoluted syntax, and the use of the term "subjects" could equally support a reading that s/he was not.
We are unwilling to premise a conclusion that there is plain error on differences in interpretation of the wording of the affidavit. We agree with the trial court that the affidavit can be read as stating that the Greenfield informant observed the marijuana and hashish in defendant's bedroom. Thus, the error, if any, is neither obvious nor so grave and serious as to reach the level of plain error.
Defendant's second claim is that the trial court erred in denying his motion to compel disclosure of the identity of the Greenfield informant. Defendant maintains that, because the informant may have been able to give testimony relevant to an issue in this case, the court should have ordered the disclosure of the...
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