NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                          2018 VT 111

                                          No. 2017-313

State of Vermont                                               Supreme Court

                                                               On Appeal from
   v.                                                          Superior Court, Orange Unit,
                                                               Criminal Division

Douglas J. Finkle, Sr.                                         April Term, 2018


Timothy B. Tomasi, J.

Thomas J. Donovan, Jr., Attorney General, and Elizabeth L. Anderson, Assistant Attorney
 General, Montpelier, for Plaintiff-Appellee.

Andrew B. Delaney of Martin & Associates, P.C., Barre, for Defendant-Appellant.


PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.


        ¶ 1.   CARROLL, J. Following his conditional plea to drug charges, defendant Doug

Finkle, Sr. appeals the trial court’s denial of his motion to suppress and dismiss. He argues that

the police affidavit submitted in support of a request for a search warrant, which relied upon

information provided by a confidential informant (CI), did not establish the requisite probable

cause to issue the warrant and search his residence. He also argues that his assertion of factual

errors and omissions in the affidavit compelled the court to hold a hearing before denying the

motion. We affirm.

        ¶ 2.   On August 15, 2016, Officer Steven Tiersch of the Randolph Police Department

applied for a warrant to search defendant’s residence based on the following facts alleged in his
affidavit. On July 31, 2016, Officer Tiersch responded to a report of a suspected heroin overdose.

When the officer arrived at the Randolph residence, he found an unconscious man, the CI, lying

on the floor turning blue. The officer observed a spoon and hypodermic syringe lying near the

CI’s feet. On the spoon was a Q-tip with a white powder residue that was later identified as heroin.

The syringe was empty. The CI regained consciousness at the scene after emergency responders

gave him a dose of Narcan to revive him.1 When confronted with the spoon and syringe, the CI

acknowledged that he had overdosed on heroin. After he was transported to the hospital, the CI

told the officer that he had purchased five bags of heroin from a “kid” named Joe. The CI did not

provide any more information at that time but indicated that he would be willing to speak to the

officer later about where he obtained the heroin.

       ¶ 3.    On August 14, 2016, Officer Tiersch met again with the CI and asked him where

he obtained the heroin. The CI told the officer that he got it from Doug Finkle at Finkle’s residence.

He provided the officer with a specific address. Knowing that there was a Doug Finkle, Sr. and

Doug Finkle, Jr., the officer asked the CI whom he meant by Doug Finkle. The CI stated that

Doug Finkle had a tattoo on his neck. The officer, who was familiar with Doug Finkle, Sr. from

prior law enforcement interactions, knew that Doug Finkle, Sr. had a tattoo on his neck and lived

at the address provided by the CI. He also knew that Doug Finkle, Jr. did not have a tattoo on his

neck and lived in a camper on the same property but not at the main residence. When the officer

asked the CI why he initially stated that the heroin came from a kid named Joe, the CI responded

that he was afraid to identify defendant at the time but that he had purchased heroin only from

defendant.2


       1
          Narcan is a brand name for a nasal-spray form of naloxone, a drug used for emergency
treatment of opioid overdoses.
       2
           According to the dissent, nothing in the record suggests that the CI was concerned with
retaliation. In fact, the CI’s own statement, as reported by Officer Tiersch in his affidavit admitted
into the record, indicates that the CI did not initially reveal his source of heroin for fear of
                                                   2
       ¶ 4.    When asked when he had last purchased heroin from defendant, the CI stated that

he purchased seven bags of heroin from defendant in two separate trips to defendant’s residence

during the previous day, August 13. The CI stated that when the officer had seen him the day

before in the vicinity of defendant’s residence, which the officer confirmed in the affidavit, he was

on his way there to purchase heroin. The CI further stated that both times he purchased heroin,

defendant pulled out white unstamped baggies from his left pocket. He also stated that he

purchased heroin at defendant’s residence the day before he overdosed on July 31. Based on his

experience, the officer knew that heroin is often sold in stamped or unstamped wax paper baggies.

The CI described defendant’s residence as a “mess” with “clothes everywhere,” which was

consistent with what the officer had observed when he was in defendant’s residence during prior

law enforcement interactions. The officer had also noticed cabinets next to a refrigerator in

defendant’s residence, which is where the CI stated defendant kept his heroin. The CI stated that

a woman named Brittney was living at defendant’s residence, and the officer had also learned that

a person with that name had been living there for a couple of weeks.

       ¶ 5.    The officer further stated that defendant was arrested on March 20, 2015, for

possession of heroin and on July 22, 2015, for the sale or delivery of heroin from his residence.

The officer noted that the CI had no criminal history in Vermont but that he had been charged with

possession of heroin in Connecticut. The officer further stated that the CI was not providing this

information to obtain consideration on any pending charges. The officer explained that the CI did

not want to be named in the affidavit because he feared retaliation by defendant or defendant’s

associates if they learned that he had provided information to law enforcement officers.




retaliation. In rejecting defendant’s argument that the CI was not reliable because he initially
claimed to have bought heroin from a kid named Joe, the trial court found that the CI had provided
a rational explanation for his initial reluctance to name defendant at the time of his overdose.
                                                    3
          ¶ 6.   Based on these statements in the officer’s affidavit, a superior court judge issued a

warrant to search defendant’s residence. The police executed the search warrant on August 24,

2016, at which time they encountered a woman named Brittney and defendant’s two daughters.

The police did not find any heroin in the residence; however, they found used needles and empty

baggies that Brittney acknowledged belonged to her, as well as a bag in the bathroom containing

drug paraphernalia. Based on his conversation with Brittney and other information he gathered,

Officer Tiersch applied for and obtained a second warrant to search defendant’s vehicles and

person.

          ¶ 7.   On August 29, 2016, defendant was stopped in his vehicle pursuant to the second

warrant. During a search of his vehicle and person, the police recovered cocaine, suboxone, and

packets of heroin. Defendant was arrested and charged with possession of heroin, possession of

cocaine, possession of a narcotic, and dispensing heroin. He filed a motion to suppress all evidence

obtained through the searches and to dismiss the charges. He argued that: (1) the affidavit

submitted in support of the initial warrant request contained false statements and omissions of fact

that were made, at minimum, with reckless disregard for the truth; (2) the affidavit on its face did

not contain sufficient information to establish probable cause to support issuance of the warrant;

and (3) all evidence gathered by police had to be suppressed and the charges dismissed because

the second warrant stemmed from the first warrant and thus was “fruit of the poisonous tree.”

          ¶ 8.   In denying defendant’s motion, the trial court accepted as true defendant’s

following claims regarding inaccuracies or omissions in the initial affidavit: (1) defendant does

not have a neck tattoo; (2) defendant was not arrested for selling heroin on July 22, 2015; and

(3) the charges stemming from his March 20, 2015 arrest for possession of heroin were dismissed.

The court determined, however, that when considering the affidavit without these alleged

inaccuracies, it provided sufficient credible and reliable information to conclude that evidence of

a crime would be found at the place to be searched. The court found that the CI’s information was

                                                   4
based on first-hand knowledge and was reliable because it was provided against the CI’s penal

interest and was corroborated in part by Officer Tiersch. The court also determined that because

the affidavit supported the warrant apart from the inaccuracies, no hearing on defendant’s motion

was necessary.

       ¶ 9.      On appeal, defendant argues that the trial court erred in denying his motion to

suppress and dismiss because: (1) the CI’s statements were neither credible nor reliable;

(2) without the challenged information, the affidavit did not establish probable cause to support

issuance of a warrant to search his residence; and (3) the court was required to hold a hearing

before denying the motion.

       ¶ 10.     Before considering these arguments, we set forth the relevant law, which is well-

established. In general, “[i]n reviewing a motion to suppress, we are deferential to the factual

determinations and inferences made in the initial determination of probable cause, but we review

conclusions of law without deference.” State v. Chaplin, 2012 VT 6, ¶ 9, 191 Vt. 583, 44 A.3d

153 (mem.). When the motion seeks to suppress evidence obtained pursuant to a warrant, we give

“great deference” to the judicial officer’s initial finding of probable cause, id. (quotation omitted),

and “[r]esolution of doubtful or marginal cases should be largely determined by the preference to

be accorded warrants,” State v. Ballou, 148 Vt. 427, 434, 535 A.2d 1280, 1284 (1987). “Even

under this heightened deference with regard to [the judicial officer’s] factual determinations and

inferences derived therefrom, however, the ultimate question of whether” the facts supplied in the

warrant provide sufficient probable cause for the search “is still a matter of law appropriate for

fresh appellate review.” Chaplin, 2012 VT 6, ¶ 9.

       ¶ 11.     “Generally, probable cause exists when the affidavit sets forth such information

that a judicial officer would reasonably conclude that a crime has been committed and that

evidence of the crime will be found in the place to be searched.” State v. Robinson, 2009 VT 1,

¶ 6, 185 Vt. 232, 969 A.2d 127 (quotations omitted). “We view the affidavits in support of

                                                  5
probable cause in a common sense manner and do not subject them to hypertechnical scrutiny.”

Id. (quotation omitted). When the finding of probable cause is based upon hearsay incorporated

into the affidavit, as in cases like the instant one where a law enforcement officer is reporting

information supplied by a CI, we apply the two-pronged test from Aguilar v. Texas, 378 U.S. 108,

114-15 (1964), and Spinelli v. United States, 393 U.S. 410, 415-16 (1969), codified in Vermont

Rule of Criminal Procedure 41(d)(1).3 State v. Cleland, 2016 VT 128, ¶ 6, 204 Vt. 23, 162 A.3d

672. Rule 41(d)(1) provides that a judicial officer “shall” issue a warrant upon a finding of

probable cause “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.”

       ¶ 12.   The veracity prong “requires that either the informant is inherently credible or that

the information from that informant is reliable on this occasion.” State v. Arrington, 2010 VT 87,

¶ 14, 188 Vt. 460, 8 A.3d 483 (quotation omitted). Inherent credibility may be established by

showing that the informant has provided correct information in the past, while information

provided on a particular occasion is generally deemed reliable “if the informant acted against penal

interest, or if police corroborated the information to the point where it would be reasonable for

them to rely on it as accurate.” State v. Goldberg, 2005 VT 41, ¶ 11, 178 Vt. 96, 872 A.2d 378

(quotation omitted).

       ¶ 13.   The factual-basis 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.” Ballou, 148 Vt. at 434, 535 A.2d at 1284. That prong is satisfied if

the information supplied by a CI and contained in the law enforcement officer’s affidavit is based


       3
         We have continued to apply this two-pronged test under the Vermont Constitution, even
though the U.S. Supreme Court abandoned it in Illinois v. Gates, 462 U.S. 213, 238-39 (1983),
and adopted a totality-of-the-circumstances approach to probable cause determinations. State v.
Goldberg, 2005 VT 41, ¶ 9, 178 Vt. 96, 872 A.2d 378.
                                               6
on first-hand personal observations set forth in some detail; hence, it “concerns the actual source

of the information rather than the integrity or veracity of the informant.” State v. Senna, 2013 VT

67, ¶ 17, 194 Vt. 283, 79 A.3d 45; see Arrington, 2010 VT 87, ¶ 13 (same).

        ¶ 14.   A defendant challenging a probable cause finding on grounds that the supporting

affidavit contains false information or omissions “must establish by a preponderance of the

evidence that the government agent who produced the affidavit made the false statements or

omissions intentionally, knowingly, or with reckless disregard for the truth.” State v. Demers, 167

Vt. 349, 353, 707 A.2d 276, 278 (1997) (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)).

“If defendant satisfies this initial burden, the reviewing court, in order to determine whether

probable cause was established, will consider the supporting affidavit as though the omitted

information had been supplied and as though accurate, rather than inaccurate, information had

been included.” Id. at 353-54, 707 A.2d at 278 (citing Franks, 438 U.S. at 156).

        ¶ 15.   Here, in challenging the denial of his motion to suppress and dismiss, defendant

first argues that the CI’s statements were neither credible nor reliable. In part, defendant conflates

the two prongs of the test set forth in Rule 41(d)(1) by arguing that the CI did not have first-hand

knowledge of the information he provided to Officer Tiersch because he falsely told the officer

that the person who sold him heroin had a tattoo on his neck. As stated above, the factual-basis

prong concerns only the source of the information, not the credibility of the informant or the

reliability of the information on that particular occasion, and thus that prong is satisfied if the

information provided is based on first-hand observations. See Cleland, 2016 VT 128, ¶ 15. As

the trial court found, that was plainly the case here. Thus, the information contained in the affidavit

satisfied the first prong of the Rule 41 test.

        ¶ 16.   Defendant further argues, however, that the veracity prong of the test was not

satisfied because: (1) there was no claim that the CI was inherently credible; and (2) the statements

the CI provided on this occasion could not be considered reliable because they were not made

                                                  7
against his penal interest and Officer Tiersch corroborated only mundane, innocent facts

discoverable by any member of the public. As for the first argument, the affidavit made no claim

that the CI was inherently credible because he had provided correct information in the past, and

the trial court did not conduct an analysis on this question, focusing instead on the reliability of

the CI’s information. The question, then, is whether the information provided by the CI was

reliable because it was either provided against his penal interest or corroborated by police.

Chaplin, 2012 VT 6, ¶ 12 (“Reliability of particular hearsay statements is generally established

either if the informant acted against penal interest, or if police corroborated the information to the

point where it would be reasonable for them to rely on it as accurate.” (quotations omitted)).

       ¶ 17.   According to defendant, the trial court’s conclusion that the CI’s statements to

Officer Tiersch were made against penal interest and thus reliable was clearly erroneous because:

(1) before he made the statements police already had enough evidence to prosecute him for

possession of heroin; and (2) the CI’s only legitimate motive was to shift the focus of the police

investigation from him to someone else. For the reasons set forth below, we do not find these

arguments persuasive.

       ¶ 18.   In State v. Ballou, we cautioned against the potential misuse of finding statements

reliable based on a determination that they were made against penal interest. 148 Vt. at 435 n.3,

535 A.2d at 1284 n.3. Nevertheless, in more recent cases we have continued to reaffirm the

ongoing viability of considering whether informant statements were made against penal interest

when determining their reliability in the context of the Aguilar-Spinelli test set forth in Rule 41.

See, e.g., Cleland, 2016 VT 128, ¶¶ 6, 11; Senna, 2013 VT 67, ¶ 18; State v. Betts, 2013 VT 53,

¶ 20, 194 Vt. 212, 75 A.3d 629; Goldberg, 2005 VT 41, ¶ 11; see also 2 W. LaFave, Search and

Seizure § 3.3(c), at 160-61 (5th ed. 2012) (stating that four justices in United States v. Harris, 403

U.S. 573 (1971), first found informant statements reliable because they were made against penal

interest and that this point of view “has been rather consistently followed by the lower courts, with

                                                  8
the result that admissions against penal interest by an informant are regularly relied upon as a

means of showing that his information is reliable”).

       ¶ 19.     The critical inquiry is whether a CI’s statement should be considered reliable as

made against penal interests in light of the circumstances surrounding the statement on that

particular occasion. See LaFave, supra, § 3.3(c), at 162 (“Courts . . . should not utilize the

admission-against-penal-interest concept in a blunderbuss fashion, but instead should assess in a

more careful fashion, preferably upon a full disclosure by the police of all relevant circumstances,

what the significance of that admission is in the context of the particular case.”). For example, in

State v. Chaplin, we concluded that although a CI acted against her penal interest in admitting to

selling inspection stickers allegedly stolen by the defendant, her statement that the defendant

“committed the burglary was certainly not against penal interests but instead was intended to show

that she did not commit the burglary.” 2012 VT 6, ¶ 12; see also State v. Morris, 165 Vt. 111, 130,

680 A.2d 90, 103 (1996) (stating that CI’s admission to having previously smoked marijuana was

not admission against penal interest “because one can be prosecuted only for possession or

deliverance of marijuana [and thus] a statement of past use cannot, in and of itself, result in

prosecution”).

       ¶ 20.     Defendant argues that there was little additional risk in the CI’s naming the source

of his heroin because police already had strong evidence of his possession of heroin in connection

with his recent overdose. But the CI’s statements provided additional evidence of his criminal

drug possession beyond the residue found on the Q-tip at the scene of his overdose. See LaFave,

supra, § 3.3(c), at 174 (stating that if informant’s implication of another person also exposed

informant “as more culpable than originally suspected, there is good reason to accept the

informant’s assertions as trustworthy” (quotation omitted)). Notably, when Officer Tiersch

interviewed the CI on August 14, the CI told the officer that he had purchased seven bags of heroin

from the defendant the day before, indicating that he was still involved in criminal activity.

                                                  9
       ¶ 21.   More importantly, “one who knows the police are already in a position to charge

him with a serious crime will not lightly undertake to divert the police down blind alleys.” Id. at

169-70 (refuting reasoning that criminal caught “red-handed” had nothing to lose by providing

self-incriminating information); see Arrington, 2010 VT 87, ¶ 23 (finding that informant’s naming

of her source for drugs was reliable because “it would have become clear very quickly if her

information was inaccurate, and the disclosure of the inaccuracy would have hurt the informant’s

position rather than helping it”). In such circumstances, the requisite indicia of reliability may

result more from the threat of police retaliation should the information prove to be false than the

admission of criminal conduct, LaFave, supra, § 3.3(c), at 171, but that does not detract from the

information’s reliability.

       ¶ 22.   For similar reasons, we are not persuaded by defendant’s assertion that the CI’s

plain intent was to shift the focus of the drug investigation onto another person. Officer Tiersch’s

affidavit explicitly stated that the CI was “not providing this information in order to have

consideration on pending charges.” As noted, the CI arguably had more to lose by providing false

information to police rather than remaining silent about the source of his heroin.

       ¶ 23.   Moreover, although the CI was not named in the affidavit and was not a citizen-

informant to whom we would afford a presumption of veracity, Goldberg, 2005 VT 41, ¶ 15

(information provided by named citizen-informant unconnected with police is presumed reliable),

neither was he an anonymous informant or “a protected police stool pigeon . . . whose indiscretions

are tolerated by the police on a continuing basis in exchange for information and leads given by

him from time to time.” LaFave, supra, § 3.3(c), at 165 (quotation omitted); see United States v.

Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991) (“[A] face-to-face informant must, as a general matter,

be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk

that he may be held accountable if his information proves false.”); see also Arrington, 2010 VT

87, ¶¶ 19-20 (comparing reliability of types of informants). Under these particular circumstances,

                                                10
the superior court did not err in finding that the known informant’s statements as to where he

obtained his heroin after police responded to his heroin overdose were made against his penal

interests and thus reliable. See LaFave, supra, § 3.3(c), at 162-63 (quoting Dutton v. Evans, 400

U.S. 74, 89 (1970), for proposition that “a person’s statement ‘against his penal interest’ carries

with it ‘indicia of reliability’ if it may also be said that the statement was made ‘under

circumstances when he would have no reason to lie’ ”).

       ¶ 24.   Given our determination that the trial court did not err in finding that the CI’s

statements were made against penal interest, a determination that police corroborated those

statements is not necessary in this case to establish their reliability to justify issuance of the

warrant. See id. § 3.3(f), at 217 (stating that police corroboration is not “essential to a finding of

probable cause based primarily upon information received from an informant”). We note,

however, that, in addition to the fact that the known CI made statements against his penal interest,

Officer Tiersch was familiar with defendant’s residence and previous criminal drug activity. See

Betts, 2013 VT 53, ¶ 30 (recognizing “that law enforcement officers may at times rely on personal

knowledge of a defendant’s prior criminal activity to assess the reliability of an informant’s tip”

(quotation and alterations omitted)). Officer Tiersch also confirmed some details of the CI’s

information, including the condition and arrangement of the inside of defendant’s residence and

the fact that someone named Brittney was living with defendant. Further, Officer Tiersch observed

defendant in the vicinity of defendant’s residence on the day when the CI stated he went to

defendant’s house twice to purchase heroin.

       ¶ 25.   We recognize that police corroboration of innocent details, by itself, generally

cannot establish the reliability of an informant’s statements. See Chaplin, 2012 VT 6, ¶ 18 (stating

that police corroboration of “an innocuous fact, which would have drawn no attention independent

of the hearsay, cannot then be used to bootstrap hearsay statements over the Aguilar-Spinelli test

threshold”); see, e.g., McManis, 2010 VT 63, ¶ 15 (concluding that police “drive-by of defendant’s

                                                 11
house and Department of Motor Vehicle records check revealed no evidence of any criminal

conduct and therefore did nothing to corroborate the criminal conduct alleged by the CI” (quotation

omitted)); Goldberg, 2005 VT 41, ¶ 14 (concluding that corroboration of “peripheral details” of

informant’s statements “did nothing to confirm the allegations of criminal conduct”). But see

Gates, 462 U.S. at 243 n.13 (stating that “innocent behavior frequently will provide the basis for a

showing of probable cause”); United States v. Canfield, 212 F.3d 713, 720 (2d Cir. 2000) (stating

that if informant proves to be truthful about even innocent details, “there is a higher probability

the incriminating facts are true”); LaFave, supra, § 3.3(f), at 217 (noting that “type of information

considered as tending to corroborate [informant’s hearsay statements] has ranged from the

innocent conduct in Draper [v. United States, 358 U.S. 307 (1959)] to that which itself created

strong suspicion in Ker [v. California, 374 U.S. 23 (1963)]” (quotation omitted)). In this case,

however, police corroboration merely bolstered the CI’s otherwise reliable statements.

       ¶ 26.   Defendant also argues that the superior court wrongly analyzed this case under

Franks v. Delaware. According to defendant, when Officer Tiersch’s affidavit is amended to

remove the alleged false statements and add the alleged omission, the remaining facts in the

affidavit are insufficient to establish probable cause to support issuance of the warrant. Defendant

further argues that the court should have held a hearing before denying his motion to suppress and

dismiss.

       ¶ 27.   In his motion, defendant argued that Officer Tiersch’s affidavit provided false

information and omitted relevant information by stating that: (1) the CI indicated defendant had a

neck tattoo and he (Officer Tiersch) knew defendant had a neck tattoo—when in fact defendant

had no such tattoo; (2) defendant was arrested for possession of heroin on March 20, 2015—but

omitting the fact that charges associated with that arrest were dismissed; and (3) defendant was

arrested for selling heroin out of his residence on July 22, 2015—when in fact he was in federal



                                                 12
custody at that time.4 Defendant requested a hearing on the motion. The court did not hold a

hearing, instead ruling that even assuming Officer Tiersch acted recklessly in including false

statements or omitting certain facts in his affidavit, the remaining unchallenged statements in the

affidavit were sufficient to establish probable cause to issue the search warrant.

       ¶ 28.   In Franks, the U.S. Supreme Court held:

               [W]here the defendant makes a substantial preliminary showing that
               a false statement knowingly and intentionally, or with reckless
               disregard for the truth, was included by the affiant in the warrant
               affidavit, and if the allegedly false statement is necessary for the
               finding of probable cause, the Fourth Amendment requires that a
               hearing be held at defendant’s request. In the event that at that
               hearing the allegation of perjury or reckless disregard is established
               by the defendant by a preponderance of the evidence, and, with the
               affidavit’s false material set to one side, the affidavit’s remaining
               content is insufficient to establish probable cause, the search warrant
               must be voided and the fruits of the search excluded to the same
               extent as if probable cause was lacking on the face of the affidavit.

438 U.S. at 155-56; see Demers, 167 Vt. at 353-54, 707 A.2d at 278 (accord); see also Canfield,

212 F.3d at 718 (“The ultimate inquiry is whether, after putting aside erroneous information and

material omissions, there remains a residue of independent and lawful information sufficient to

support probable cause.” (quotation omitted)). The Court in Franks elaborated that there is “a

presumption of validity with respect to the affidavit supporting the search warrant” and that a

defendant’s allegations of reckless disregard for the truth “must be more than conclusory” and




       4
          The dissent asserts that Officer Tiersch made “obvious untruths in his sworn statement”
when he averred that defendant had a neck tattoo; that defendant had been charged with possession
of heroin in March 2015, but did not indicate that the charge was later dropped; and that defendant
was arrested for selling heroin out of his home in July 2015, at a time when defendant was
incarcerated. Post, ¶ 39. The dissent further asserts that Officer Tiersch was either unsure about
whom he was identifying or was willing to say whatever was necessary to obtain a warrant. It is
important to keep in mind, however, that, in denying defendant’s motion to suppress, the trial court
did not conduct a Franks hearing and assumed only for purposes of argument that Officer Tiersch
acted with reckless disregard in asserting these facts. Further, as explained below, it was
defendant’s initial burden to submit evidence demonstrating that the officer intentionally or
recklessly made false statements. Under these circumstances, we cannot say that Officer Tiersch
was obviously untruthful in his sworn statement.
                                                 13
“must be accompanied by an offer of proof” supported by affidavits or “otherwise reliable

statements of witnesses.” 438 U.S. at 171. The Court further stated that even when these

requirements are satisfied, “if, when material that is the subject of the alleged falsity or reckless

disregard is set to one side, there remains sufficient content in the warrant affidavit to support a

finding of probable cause, no hearing is required.” Id. at 171-72.

        ¶ 29.   Here, the superior court assumed for the purposes of argument that defendant made

the requisite threshold showing of reckless disregard for the truth with respect to the challenged

statements; however, the court concluded the remaining unchallenged information established

probable cause to issue the search warrant. See Franks, 138 U.S. at 155-156. For the reasons

stated above, we agree. Hence, no Franks hearing was required and the court did not err when it

made the probable cause finding without first holding a hearing.

        Affirmed.

                                                   FOR THE COURT:



                                                   Associate Justice


        ¶ 30.   SKOGLUND, J., dissenting. Because I find the confidential informant’s (CI’s)

statements fail to satisfy the legal standard of credibility or reliability, and because I find the affiant

officer neither credible nor reliable, I would hold that the search warrant was not supported by

probable cause and grant defendant’s motion to suppress the challenged evidence.

        ¶ 31.   As the majority explained above, when the finding of probable cause is based upon

hearsay incorporated into an affidavit, we apply the two-pronged test from Aguilar v. Texas, 378

U.S. 108, 114-15 (1964), and Spinelli v. United States, 393 U.S. 410, 415-16 (1969), codified in

Vermont Rules of Criminal Procedure 41(d)(1). Rule 41(d)(1) requires a judicial officer to issue

a warrant when both the factual-basis prong and the veracity prong are satisfied, thus establishing


                                                    14
probable cause. Here, the State failed to satisfy the veracity prong—which requires that the

informant be inherently credible or that the information he provides be reliable—because there

was no substantial basis established for believing the CI’s hearsay to be credible.

       ¶ 32.   First, inherent credibility was not established by showing the informant had

provided correct information in the past—Officer Tiersch did not claim as much. Second, the CI’s

reliability on this occasion cannot be proven because his statement was not against his penal

interest, nor had it been corroborated by law enforcement.

       ¶ 33.   The information provided on this occasion cannot be deemed reliable because the

informant was not acting against penal interest when he gave his information. As the majority

notes, the police had enough evidence to prosecute the CI for possession of heroin based on his

possession of the heroin that resulted in his overdose, prior to his interview with Officer Tiersch.

However, the majority then upholds the trial court’s conclusion that the CI’s statements to Officer

Tiersch were made against penal interest, asserting that his claim that he purchased heroin from

defendant after his overdose continued his criminal drug involvement. The CI’s statement to

Officer Tiersch that he purchased drugs after his overdose is scant evidence of his continued

involvement with drugs and, without further prosecutorial investigation, could not expose him to

criminal charges under 18 V.S.A. § 4205 for possession of a regulated drug or under 18 V.S.A.

§ 4233 for possession of heroin specifically.

       ¶ 34.   But, more importantly, the majority goes on to hold that the threat of retaliation for

providing false information can support the requisite indicia of reliability. This is complete

supposition. There is nothing in the record to suggest the CI was concerned with retaliation.

       ¶ 35.   Furthermore, I have serious concerns about the credibility of the relied-upon

information because it consisted of mere “innocent details” which were uncorroborated by Officer

Tiersch. At the hospital after the CI’s overdose, the CI told Officer Tiersch that he bought the

heroin that resulted in his overdose from a kid named “Joe.” However, when Officer Tiersch spoke

                                                15
with the CI two weeks later, the CI’s story changed. The CI told Officer Tiersch that he had

actually bought the heroin from “Doug Finkle,” who had a neck tattoo, and gave Officer Tiersch

a street address where he said Finkle resided. He also told Officer Tiersch that he bought more

heroin from Finkle the day before this interview. The CI described the interior of Finkle’s house

as a mess with clothes everywhere. He claimed there were cabinets next to the fridge where Mr.

Finkle had kept his heroin at some point in the past, though he noted that when he bought heroin

the day before his interview with Officer Tiersch, Mr. Finkle pulled the white, unstamped baggies

out of his left front pocket. The CI also claimed someone named Brittney was living at the

residence. So, the sum-total of the CI’s first-hand information of possible criminal activity is that

he claimed he bought heroin from a man named “Doug Finkle.” That is all. The specific

identifying information provided in the reported statements of the informant was that the man who

sold him heroin had a neck tattoo. That proved to be false.

       ¶ 36.   Vermont’s law is clear that “mere innocent details” are not enough to establish that

hearsay evidence is credible, nor are they sufficient to create probable cause to issue a warrant.

State v. Robinson, 2009 VT 1, ¶ 16, 185 Vt. 232, 969 A.2d 127 (“[T]he corroboration of mere

innocent details did not prove that the informant’s allegations of [criminal activity] were reliable.”

(citing State v. Goldberg, 2005 VT 41, ¶ 14, 178 Vt. 96, 872 A.2d 378)); see also V.R.Cr.P. 41(d).

Notably, the State, when pressed at oral argument before the trial court, conceded that without a

sufficient statement against penal interest, the “facts” offered by the CI are insufficient:

               [B]ecause not only is [the CI] speaking against his penal interest, we
               can corroborate most of the details that he’s giving [Officer
               Tiersch]: where Mr. Finkle lives, the condition of his house, who
               he’s living with . . . . [A]lone they’re innocent details, but when
               you’re knowing that the CI is reporting that he is buying heroin from
               there, those details become more important. So I think that yes, if
               you knew each one of those details alone, that yes, they’re all
               innocent.




                                                  16
Setting aside the unsupported assertion that a mere claim of illegal activity converts the remaining

innocent details into something more substantial, the State appears to agree that the CI’s

information is insufficient under our jurisprudence.

       ¶ 37.   The majority holds that a determination that “police corroborated those statements

is not necessary in this case to establish their reliability to justify issuance of the warrant.” Ante,

¶ 24. It goes on to agree that police corroboration of innocent details, by itself, cannot establish

the reliability of an informant’s statements, but then suggests police corroboration bolstered the

CI’s otherwise reliable statements. Ante, ¶ 25.

       ¶ 38.   However, Officer Tiersch’s “corroboration” here cannot be seen as bolstering the

CI’s statements. Officer Tiersch claimed he, too, had been in Mr. Finkle’s residence, but he

provided no information about when that visit occurred, other than that the visit was related to

another criminal matter. He reported that during this previous, unrelated visit to the residence, he

found that the residence was a mess with clothes everywhere and that there were cabinets right

next to the fridge. Officer Tiersch also learned, separately from CI’s information, that a female

named Brittney had been staying at Mr. Finkle’s residence. Again, these innocent details do not

establish the reliability of an informant’s statement or provide probable cause that a crime had

been committed and that evidence of the crime will be found in the place to be searched. See State

v. Cleland, 2016 VT 128, ¶ 13, 204 Vt. 23, 162 A.3d 672 (concluding probable cause determination

was proper because finding was based on significant additional information in affidavit and

contrasting with other cases where “the information provided by confidential informants, which

did nothing to confirm allegations of the defendants’ criminal activities, was the only information

in support of the affidavit”). Giving the deference due to the judicial officer’s initial finding of

probable cause, I concede jurists can differ, but this “corroboration” of innocent details cannot be

adequate to bolster reliance on the CI’s claims.



                                                   17
       ¶ 39.   And here we reach the critical flaw in this case.          My problem in affording

heightened deference to the trial judge’s factual determinations and inferences derived therefrom

comes from the failure of the court to sufficiently evaluate the critical issue of Officer Tiersch’s

veracity. There are obvious untruths in his sworn statement. In his affidavit in support of his

request for a search warrant for defendant’s home, the officer swore under oath that he knew “Doug

Finkle” from prior law enforcement interactions and that he knew “Mr. Finkle Sr. ha[d] a tattoo

on his neck” and that Mr. Finkle, Jr., his son, did not. Defendant does not have a neck tattoo.

Officer Tiersch also swore that defendant was arrested on March 20, 2015 for possession of heroin,

but he omitted the critical information that the charges were dropped. He also swore that defendant

was arrested for selling heroin from his home on July 22, 2015. No, defendant wasn’t.

       ¶ 40.   There can be no argument that defendant proved by a preponderance of evidence

that the affidavit in support of probable cause contained deliberate falsehoods or statements made

with reckless disregard for the truth. See State v. Demers, 167 Vt. 349, 353, 707 A.2d 276, 278

(1997) (citing United States v. Mankani, 738 F.2d 538, 545 (2d Cir. 1984)); Franks v. Delaware,

438 U.S. 154, 156 (1978). The court below ruled that, even assuming Officer Tiersch acted

recklessly by including false statements or omitting certain facts in his affidavit, the remaining

unchallenged statements in the affidavit were sufficient to establish probable cause to issue the

search warrant.   The majority agrees and holds that under Franks, sufficient unchallenged

information remains to establish probable cause after excising the inaccuracies or omissions.

Ante, ¶ 29. I disagree.

       ¶ 41.   First, is it really significant that, on the day the CI claimed to have purchased heroin

from defendant, Officer Tiersch observed the CI in the “vicinity” of defendant’s home? Ante,

¶ 24. I think not. That both the CI and Officer Tiersch found defendant’s house messy is irrelevant.

What Brittney has to do with anything is beyond me. The layout of the kitchen provides no support

that evidence of a crime will be found in defendant’s house. Remember, when asked where Finkle

                                                 18
got the heroin he allegedly sold to the CI on August 13, the CI stated that Finkle pulled the baggies

out of his left front pocket. I would require a little more actual truth in an affidavit. Scrubbing the

affidavit of its untruths and omissions, we are left with “innocent details,” which we have held are

not enough. Robinson, 2009 VT 1, ¶ 16. For the reasons stated above, I do not find the CI’s

statements to be otherwise reliable.

       ¶ 42.   In Franks, the Court held that evidence seized pursuant to a search warrant may be

suppressed if the defendant demonstrates by a preponderance of the evidence that: (1) the warrant

was based upon false information in the supporting affidavit; and (2) the affiant either knew the

information was false or included it with reckless disregard for the truth. 438 U.S. at 155-56.

Under this standard, there are two levels of inquiry that the trial court must make when assessing

the evidence presented. Initially, the court must determine whether there was false information in

the supporting affidavit—the trial court here plainly found that there were inaccuracy or omissions

in the affidavit. Next, the court must decide whether the defendant has demonstrated that the false

information was included intentionally or recklessly. Here, Officer Tiersch’s affidavit was replete

with untruths, which can only lead to the conclusion that he either intentionally included false

information or he acted with a reckless disregard for the truth. One misstatement might constitute

negligence. This level of false information suggests the problem is not mere negligence. The

court below should not have credited Officer Tiersch’s statements, given all the red flags that are

brightly waving above.

       ¶ 43.   Even if there were relevant facts sufficient for probable cause, any corroborative

support which Officer Tiersch might lend to the CI’s claims is severely undermined by the factual

inaccuracies in his affidavit. In United States v. Whitley, the court found that a detective’s decision

to identify another officer as the source of information in the affidavit, though he later testified

that he did not know from where he had received the false information leading to a warrant,

“certainly raises a red flag with respect to his credibility on crucial events.” 249 F.3d 614, 622

                                                  19
(7th Cir. 2001). Considering Officer Tiersch’s “corroboration” of a false physical description from

a source whose reliability is not established, together with the factual inaccuracy and omission

regarding defendant’s history with heroin, the red flag should be on fire.

       ¶ 44.   Courts typically find falsehoods or omissions in an affidavit to be immaterial only

when they make up only a relatively small proportion of the evidence in hand. Compare United

States v. Strother, 318 F.3d 64, 69-70 (1st Cir. 2003) (finding probable cause based on remaining

facts after excising alleged falsehoods or correcting omissions), United States v. Canfield, 212

F.3d 713, 718 (2d Cir. 2000) (same), United States v. Barnett, 989 F.2d 546, 557 (1st Cir. 1993),

United States v. Spinosa, 982 F.2d 620, 627 (1st Cir. 1992) (same), United States v. Parcels of

Land, 903 F.2d 36, 46-47 (1st Cir. 1990) (same), United States v. Rumney, 867 F.2d 714, 720 (1st

Cir. 1989) (same), with United States v. Fisher, 711 F.3d 460, 462, 468 (4th Cir. 2013) (finding

no probable cause based on remaining facts after excising alleged falsehoods or correcting

omissions), United States v. Hammond, 351 F.3d 765, 773-74 (6th Cir. 2003) (same), United States

v. Curry, 751 F.2d 442, 449 (1st Cir. 1984) (same), United States v. Chesher, 678 F.2d 1353, 1362-

63 (9th Cir. 1982) (same), United States v. Troxel, 564 F. Supp. 2d 1235, 1250 (D. Kan. 2008)

(same). Given how few facts of any real value Officer Tiersch was able to correctly corroborate,

his factual inaccuracies with regard to much more important information highlight a startlingly

high false-positive rate.

       ¶ 45.   The exclusionary rule is a judicially created rule “designed to safeguard Fourth

Amendment rights generally through its deterrent effect.” Herring v. United States, 555 U.S. 135,

139-40, 129 S.Ct. 695, 699 (2009) (quotation omitted). The nature of this particular tool, where

an uncertain degree of deterrence against future constitutional violations is considered against the

backdrop of the unpalatable release of a likely criminal, may dissuade judges from applying it.

M. Wilson, Improbable Cause: A Case for Judging Police by a More Majestic Standard, 15

Berkeley J. Crim. L. 259, 312 (2010) (“[The] need for deterrence will seem weak when viewed

                                                20
with the benefit of hindsight, knowing that police uncovered a crime and a probable criminal.

Thus, trial judges are naturally inclined to deny motions to suppress, even in cases exhibiting some

evidence of police perjury.”). Judicial attempts to protect a citizen’s Fourth Amendment rights are

further frustrated by well-documented police falsification and perjury, which trial court judges are

often either unable or unwilling to identify. Id. at 263 n.15, 265 n.20-21 (collecting studies

identifying evidence of police falsification in affidavits and perjury during suppression hearings

with muted responses by trial court judges). We should not allow hindsight bias or an innate

tendency to implicitly trust those in uniform to cause us to become “accomplices in the willful

disobedience of a Constitution [we] are sworn to uphold.” Elkins v. United States, 364 U.S. 206,

223 (1960).

        ¶ 46.   Tolerating an instance of unacceptably sloppy—if not intentionally deceitful—

police work does a disservice to the law enforcement community as a whole. This case supports

the disturbing conclusion that Officer Tiersch either was unsure about whom he was identifying,

or, in the absence of any useful facts, was willing to “corroborate” whatever was necessary to get

a warrant. Needless to say, neither is an acceptable method for an officer to establish probable

cause to search an individual’s home under Article 11 of the Vermont Constitution.

        ¶ 47.   For these reasons, I dissent, and I am authorized to state that Justice Robinson joins

this dissent.


                                                 Associate Justice




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