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
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before this opinion goes to press.


                                           2016 VT 128

                                          No. 2015-440

State of Vermont                                               Supreme Court

                                                               On Appeal from
   v.                                                          Superior Court, Grand Isle Unit,
                                                               Criminal Division

Stuart Cleland                                                 September Term, 2016


A. Gregory Rainville, J.

William H. Sorrell, Attorney General, and Paul A. Barkus, Assistant Attorney General,
 Montpelier, for Plaintiff-Appellee.

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


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


        ¶ 1.     SKOGLUND, J. Following his conditional guilty plea to drug and child-cruelty

charges, defendant appeals the trial court’s denial of his motion to suppress, arguing that the

affidavit submitted in support of a search warrant of his residence did not provide probable cause

for issuance of the warrant. We affirm.

        ¶ 2.     On June 7, 2013, after a nearly month-long investigation regarding a clandestine

methamphetamine operation, a detective with the Vermont State Police applied for and obtained a

warrant to search the residence and curtilage at a specified address on Windmill Point Road in

Alburg, Vermont. The search warrant was executed three days later by the state police and

associated law enforcement units.      As a result of the search, defendant was charged with
manufacturing methamphetamine, possessing the precursors used to produce methamphetamine,

conspiracy, and child endangerment. The conspiracy charge was later dismissed.

       ¶ 3.    Defendant filed a motion to suppress evidence gathered from the search and to

dismiss the charges, arguing that the affidavit submitted in support of the search warrant failed to

establish the requisite probable cause for issuance of the warrant. On June 30, 2015, following a

February 19, 2015 motion hearing, the trial court denied the motion. In relevant part, the court

ruled that: (1) the information in the affidavit contained substantial evidence from which a judge

could independently and reasonably conclude that a crime had been committed and that evidence

of the crime would be found at the specified address; and (2) although many of the hearsay

statements in the affidavit could not be considered reliable under the applicable test, those hearsay

statements that were reliable, considered along with other nonhearsay information contained in the

affidavit, were sufficient to support issuance of the warrant. On October 19, 2015, defendant

entered into a conditional plea under which he reserved the right to appeal the denial of his motion

to suppress and dismiss.

       ¶ 4.    On appeal, defendant argues that the affidavit submitted in support of the search

warrant failed to provide sufficient facts to establish: (1) a connection between the alleged crime

and the place to be searched; (2) the reliability of the hearsay statements contained in the affidavit;

and (3) a factual basis for the hearsay statements. Our standard of review is well established:

                In 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. Where, as here, the motion is to suppress evidence seized
               pursuant to a warrant, the initial finding of probable cause by a
               judicial officer is given great deference. . . . Even under this
               heightened deference with regard to factual determinations and
               inferences drawn therefrom, however, the ultimate question of
               whether the factual claims in an affidavit are sufficient to amount to
               probable cause is still a matter of law appropriate for fresh appellate
               review. Our review is thus to ensure that the magistrate had a
               substantial basis for concluding that probable cause existed.


                                                  2
State v. Chaplin, 2012 VT 6, ¶ 9, 191 Vt. 583, 44 A.3d 153 (quotations and citations omitted).

       ¶ 5.    The standard for determining probable cause is also well-established. “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.” State v. Robinson, 2009 VT 1, ¶ 6, 185 Vt. 232, 969 A.2d 127

(quotation omitted). “We examine the totality of the circumstances to determine whether there

was substantial evidence supporting the warrant, keeping in mind that affidavits must be viewed

in a common-sense manner and not be subjected to hypertechnical scrutiny.” State v. Zele, 168

Vt. 154, 157, 716 A.2d 833, 836 (1998) (quotation and citation omitted).

       ¶ 6.    In determining whether hearsay statements incorporated into the affidavit support

a finding of probable cause, we employ a two-part test codified in Vermont Rule of Criminal

Procedure 41 from Aguilar v. Texas, 378 U.S. 108, 114-15 (1964) and Spinelli v. United States,

393 U.S. 410, 415-16 (1969). See Robinson, 2009 VT 1, ¶ 6; Reporter’s Notes, V.R.Cr.P. 41. 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(d)(1).

The credibility prong of the rule requires a showing either that the informant is inherently credible

or that the information provided by the informant on that particular occasion is reliable. State v.

Arrington, 2010 VT 87, ¶ 14, 188 Vt. 460, 8 A.3d 483. “An informant’s inherent credibility is

typically established by evidence that [the informant] has provided correct information in the past,

while particular information is generally deemed inherently 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).    The factual-basis prong requires an examination of the basis of the

informant’s knowledge. Arrington, 2010 VT 87, ¶ 13. “To satisfy [this] prong, the informant’s



                                                  3
tip must transmit the factual basis for the conclusions, so that the magistrate may make his [or her]

own direct analysis.” Goldberg, 2005 VT 41, ¶ 10 (quotation omitted).

       ¶ 7.      The affidavit at issue here included the following information: (1) the process for

manufacturing methamphetamine, including the use of a key precursor chemical, pseudoephedrine

(PSE), commonly found in over-the-counter decongestants and allergy-relief products; (2) the

restrictions and reporting requirements regarding the sale of products containing PSE, including

prohibiting the purchase of products containing more than 3.6 grams of PSE per day or more than

9 grams within a thirty-day period; and (3) a chart showing defendant’s and his domestic partner’s

purchase of products containing PSE between March and August 2013.

       ¶ 8.      The affidavit then made the following assertions of fact, among others, concerning

the investigation of methamphetamine operations in Alburgh:

             Defendant purchased 22.59 grams of PSE between April 19 and May 19, 2013.

             A reliable confidential informant who had made a controlled purchase of narcotics in
              May 2013 for the Vermont Drug Task Force stated that he knew defendant had been
              using methamphetamine for the previous two years and had a supplier in New York
              but did not know if defendant was manufacturing the drug.

             On May 21, 2013, the affiant received a phone call from another named detective
              informing the affiant that a concerned citizen who wanted to remain anonymous
              reported, without having first-hand knowledge or seeing the operations, that defendant
              and his domestic partner were manufacturing methamphetamine with their infant child
              in the house.

             The following day, the affiant and another detective travelled to “Windmill Dr.” in
              Alburgh and verified that the address was a trailer with the number stated in the
              affidavit posted on the outside.

             On May 28, 2013, a sergeant with the Grand Island Sheriff’s Department informed the
              affiant that a confidential informant who had provided information in the past leading
              to an arrest reported that several people told him that defendant was manufacturing
              methamphetamine at a residence on Windmill Point Road where defendant was living.

             On that same day, the affiant observed a car registered to defendant leave the Windmill
              Point Road address stated in the affidavit and go to another residence where the
              confidential informant had indicated methamphetamine was being manufactured.



                                                   4
             On June 3, 2013, a police offer informed the affiant that the officer had received a
              National Precursor Log Exchange hit indicating that defendant had purchased a product
              containing 3.6 grams of PSE at a Champlain, New York pharmacy.

             That same day, another police officer informed the affiant that defendant had purchased
              a product containing PSE at a drugstore in St. Albans, Vermont on May 31, 2013.

             A later review of records indicated that defendant had purchased PSE on four occasions
              at different drug stores in New York and Vermont on April 11 and April 19, 2013.

             On June 4, 2013, police interviewed defendant and presented him with information
              they had received about his purchases of PSE and his manufacturing of
              methamphetamine.

             Defendant denied manufacturing methamphetamine and told police he purchased the
              PSE for a named individual.

             During the interview, defendant waived his Miranda rights and told police that he
              started using methamphetamine one year earlier, that he was addicted to pills, and that
              he would obtain methamphetamine from the named individual and then trade the
              methamphetamine to another named individual in exchange for pills or cash.

             On that same day, the affiant interviewed an individual called Shorty, whom defendant
              had told police was the first named individual’s “right hand man.”

             Shorty told police that he heard the named individual had taught defendant how to
              manufacture methamphetamine.

             The following day, the affiant and another officer interviewed the named individual’s
              girlfriend, who provided a written statement in which she reported that defendant had
              told her he could make methamphetamine and did not need to buy it.

             The following day, during a second interview with Shorty, Shorty told the affiant that
              a month earlier at defendant’s trailer defendant showed Shorty a white substance that
              he removed from a drawer under his couch and told Shorty that it was
              methamphetamine he had manufactured.

             Shorty also told the affiant that on June 1, 2013, defendant came to his house to sell
              him pills.

             On June 7, 2013, Shorty contacted the affiant and showed him an exchange of text
              messages with defendant in which defendant indicated he still had drugs for sale.

       ¶ 9.      Defendant acknowledges that information contained in the affidavit may have

provided probable cause that a crime had been committed, but argues that it did not provide

probable cause that potential evidence of a crime would be found at the specific Windmill Point

                                                   5
Road residence stated in the affidavit. We disagree. There was ample information in the affidavit,

including defendant’s own statement to police, for an independent judge to reasonably conclude

that defendant and his partner had purchased illegal amounts of PSE and that defendant possessed

illegal drugs in his residence. The affidavit contained firsthand information of defendant storing

drugs in private places within his residence, which was consistent with the affiant’s statement as

to the habits of drug traffickers.

        ¶ 10.   As for the location of that residence, approximately three weeks before the search

warrant was executed a police officer informed the affiant that a confidential informant had told

him that defendant and his domestic partner were manufacturing methamphetamine in their

residence. The following day the affiant “travelled to [the specified] Windmill Dr.,* Alburgh”

address and “verified” that the address was a trailer with the specified street number on the outside.

One week later, after receiving a report from another police officer that a reportedly reliable

confidential informant stated that defendant was making methamphetamine at a trailer in which he

was living towards the end of Windmill Point Road in Alburgh, the affiant conducted surveillance

at the Windmill Point Road address specified in the affidavit and observed a car registered to

defendant leave the residence, stop at a gas station where defendant’s domestic partner got out,

and then proceed to another residence in which there was a reported methamphetamine operation.

This information was sufficient for an independent magistrate to objectively infer that evidence of

a crime would be found at the Windmill Point Road address specified in the affidavit. See State

v. Melchior, 172 Vt. 248, 251, 775 A.2d 901, 904 (2001) (stating that standard for finding probable

cause that evidence of crime will be found in place to be searched “requires something less than

the more-likely-than-not standard we rejected in State v. Town, 158 Vt. 607, 613-14, 615 A.2d



        *
         Defendant did not suggest to the trial court, and has not suggested on appeal, that the
Windmill Dr. address referred to in one paragraph of the affidavit is a different residence than the
Windmill Point Road address referred to in another paragraph of the affidavit.
                                               6
484, 487-88 (1992)”); United States v. Gaviria, 805 F.2d 1108, 1115 (2d Cir. 1986) (stating that

“the probable cause standard does not deal with hard certainties, but with probabilities” (quotation

omitted)).

          ¶ 11.   Defendant argues, however, that neither prong of the Rule 41 test regarding hearsay

evidence was met in this case insofar as the affidavit failed to show that: (1) the informants were

inherently credible or provided reliable information in this instance; and (2) there was a factual

basis for the information furnished. Again, we disagree on both counts.

          ¶ 12.   Regarding the informants’ credibility, defendant argues that the inherent credibility

of the confidential informant who provided the location of defendant’s residence could not be

established by the vague statement in the affidavit that he had provided information in the past

leading to an arrest. See State v. Betts, 2013 VT 53, ¶ 23, 194 Vt. 212, 75 A.3d 629 (concluding

that state trooper’s statement in affidavit that confidential informant had “provided . . . information

in the past that has led to the arrest of at least three separate individuals for various narcotics

offenses” did not permit independent analysis of informant’s credibility (quotation marks

omitted)); Robinson, 2009 VT 1, ¶ 9 (arriving at same conclusion with respect to police officer’s

statement in affidavit that confidential informant “has provided me reliable and credible

information in the past” concerning cocaine deals in Addison County that “I have been able to

confirm” as “accurate” (quotation marks omitted)). Defendant further argues that there was

nothing to indicate that the information on this particular occasion was reliable based on either the

confidential informant acting against penal interest or the police corroborating the information in

any significant way. Defendant asserts that the police corroboration of the confidential informant

involved only brief surveillance of the residence that did not reveal any criminal activity. See

Betts, 2013 VT 53, ¶ 27 (“[The information corroborated must relate in some way to the criminal

activity alleged.”); see also Robinson, 2009 VT 1, ¶ 16 (same); Goldberg, 2005 VT 41, ¶ 14

(same).

                                                    7
       ¶ 13.   To be sure, the affiant did not observe any criminal activity in corroborating the

confidential informant’s information concerning the location of defendant’s residence. But the

finding of probable cause does not rest in this case on the statements of the confidential informant.

Rather, the evidence of criminal activity at his residence was provided by other information in the

affidavit, including the record of defendant’s and his domestic partner’s regular and illegal

purchases of PSE products, defendant’s own statements to police concerning his drug use, and

most particularly Shorty’s statements tying defendant’s drug and manufacturing operation to his

residence. In contrast, in the cases cited by defendant in support of his argument, 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. See Robinson, 2009 VT

1, ¶ 12 (“Here, the confidential informant was the only source of the information relied on by the

affiant, defendant was otherwise unknown to police, and there were no other indicia of

credibility.”); see also Betts, 2013 VT 53, ¶¶ 2, 27 (summarizing facts); Goldberg, 2005 VT 41,

¶¶ 2-3, 14 (same).

       ¶ 14.   Defendant acknowledges the trial court’s findings that statements provided by

Shorty and the named individual’s girlfriend were inherently credible because the former was

corroborated in part by the affiant and the latter was made against penal interest. He contends,

however, that those statements provided “no substantial evidence relative to the charged crime of

manufacturing” methamphetamine. But the issue is whether the information in the affidavit

revealed circumstances from which a person of reasonable caution would conclude that evidence

of a crime, not necessarily the crime of manufacturing methamphetamine, would be found in the

place to be searched. See Zele, 168 Vt. at 157, 716 at 835-36. The statements made by Shorty

and the named individual’s girlfriend, in combination with other information in the affidavit,

satisfied this standard with respect to the possession of PSE, if nothing more.



                                                 8
       ¶ 15.   For similar reasons, we reject defendant’s contention that the factual-basis prong of

Rule 41 was not met. Defendant acknowledges that the trial court found some of statements made

by Shorty and the girlfriend to be based on first-hand knowledge, which satisfies the factual-basis

prong. See Arrington, 2010 VT 87, ¶ 13 (stating that factual-basis prong is satisfied when “the

informant provides first-hand information”); see also Betts, 2013 VT 53, ¶ 20 (same). Defendant

argues, however, that none of those statements indicated that either the girlfriend or Shorty

personally observed defendant manufacturing methamphetamine.             The argument does not

withstand scrutiny.    The named informants did not need to actually witness defendant

manufacturing methamphetamine for them to have provided sufficient information to support an

independent determination that evidence of that crime would be found at the location to be

searched. In any event, as noted, their statements were sufficient for a neutral judge to determine

that evidence of a crime—illegal possession PSE—would be found there.

       Affirmed.

                                               FOR THE COURT:



                                               Associate Justice




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