2013 VT 67


State v. Senna
(2012-173)
 
2013 VT 67
 
[Filed 02-Aug-2013]
 
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@state.vt.us 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.
 
 

2013 VT 67

 

No. 2012-173

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Criminal Division


 


 


Loren Senna


April Term, 2013


 


 


 


 


James
  R Crucitti, J.


 

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.
 
 
¶ 1.            
ROBINSON, J.  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 (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, 945 N.E.2d 899 (Mass. 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 needs was lawfully
enrolled in a needle-exchange program—unless the defense “appear[ed] clearly and without contradiction on the record.” 
Commonwealth v. Walczak, 979
N.E.2d 732, 744 n.13 (Mass. 2012) (quotation omitted).  Another
Massachusetts case cited in Walczak, Commonwealth
v. Landry, 779 N.E.2d 638 (Mass. 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 V.S.A. § 4230(a), amended by 2013, No. 76,
§ 1.  Some individuals were exempt from prosecution by virtue of
their listing in the Department of Public Safety patient registry, but
cultivation was still a crime.  There is no evidence that either defendant
or his partner was, in fact, a registered patient.  The small possibility
that someone in the residence might have been immune from prosecution, in the
absence of any evidence that anyone was, does not negate the State’s probable
cause to search based in part on the odor of fresh marijuana.[2]
¶ 14.         The
Michigan Court of Appeals has considered the impact of the Michigan Medical
Marihuana Act (MMMA), which includes the kind of registration and exemption
from prosecution reflected in Vermont’s law, on the determination of probable
cause to search in a case similar to this.  People v.
Brown, 825 N.W.2d 91, 93 (Mich. Ct. App. 2012).  The court in Brown described Michigan’s
medical marijuana law as a “very limited, highly restricted exception to the
statutory proscription against the manufacture and use of marijuana in
Michigan.”  Id. at 94 (quotation omitted). 
Rejecting an argument almost identical to that advanced by defendant here, the
court wrote:
We find that because the possession, manufacture, use,
creation, and delivery of marijuana remain illegal in Michigan even after the enactment of the MMMA, a
search-warrant affidavit concerning marijuana need not provide specific facts
pertaining to the MMMA, i.e., facts from which a magistrate could conclude that
the possession, manufacture,
use, creation, or delivery is specifically not legal under the MMMA.  
 
Id.
at 93.
 
¶ 15.         The Washington Supreme
Court has held likewise, although the decision is less squarely on point
because that state’s “compassionate use” law expressly created an affirmative
defense to conviction in certain circumstances rather than an exemption to
prosecution for registered individuals.  See State v. Fry,
228 P.3d 1, 5 (Wash. 2010) (“Possession of marijuana, even in small amounts, is
still a crime in the state of Washington [notwithstanding a recognized
‘compassionate use defense’ to marijuana charges].  A police officer would
have probable cause to believe [the defendant] committed a crime when the
officer smelled marijuana emanating from the [defendant’s] residence.”).
¶ 16.         For
the above reasons, we conclude that the trial court properly considered the
odor of fresh marijuana emanating from defendant’s home in assessing probable
cause to search his residence.  At least in the absence of any indication
that a resident of a home is a registered patient, the fact that Vermont has a
registry of patients who are exempt from prosecution for possession or
cultivation of marijuana does not undermine the significance of the smell of
marijuana as an indicator of criminal activity.
II.
¶ 17.         We
turn to defendant’s argument that the neighbor’s statements could not be relied
on to generate probable cause as they were hearsay.  To evaluate probable
cause determinations based on hearsay evidence, we apply a two-pronged test
established in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410
(1969), and codified in Vermont Rule of Criminal Procedure 41(c), which allows
a finding of probable cause based on hearsay “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.”  Goldberg,
2005 VT 41, ¶¶ 9-10.  The factual basis prong concerns the actual
source of the information rather than the integrity or veracity of the
informant.  State v. Arrington, 2010 VT 87, ¶ 13, 188 Vt. 460, 8 A.3d 483.  This prong is satisfied when, as in the
instant case, the informant provides first-hand information.  Id. 
Defendant does not contest that the first prong is satisfied here.
¶ 18.         With
respect to the “credibility” prong, we have said that “[a]n affidavit may
establish an informant’s credibility in either of two ways: (1) by
demonstrating his or her inherent credibility as a source; or (2) by
demonstrating the reliability of the information he or she has provided on the
occasion in question.”  Goldberg, 2005 VT 41,
¶ 11.  To establish credibility, the State typically
demonstrates that, through branch one, the informant provided correct
information in the past or acted against penal interest in providing the
information, or, through branch two, that the police independently corroborated
the information to the point that it is reasonable to rely on the information
as accurate.  Id. 
¶ 19.         Defendant
argues that the affidavit of probable cause in this case did not meet the
requirements of the “credibility” prong because there is no suggestion that the
neighbor provided credible information in the past, that she was acting against
her own interest in giving the information, or that the police independently
confirmed the accuracy of her specific statements to the point that it
validated her information as a whole.  
¶ 20.         The
State argues that the identification of the neighbor by name established her
credibility, and that the smell of fresh marijuana through defendant’s front
door corroborated her statements.  
¶ 21.         We
agree with the State that the fact that the informant in this case was named is
a factor supporting the credibility of the information she provided, but
conclude that that factor alone is not sufficient to satisfy the credibility
prong.  See Arrington, 2010 VT 87, ¶ 20 (recognizing that
information provided by named informant is generally given more weight); but
see Chaplin, 2012 VT 6, ¶ 13 (although factor in analysis, fact that
informant is named to court and defendant, and gives affidavit under penalty of
perjury, is not determinative of reliability irrespective of other factors). 
¶ 22.         The
neighbor’s status as a named informant in combination with
the circumstances surrounding her statements, however, are sufficient to
establish the reliability of her information.  We have previously held
that “information about criminal or suspicious activity from a citizen, who is
not a paid informant and is unconnected with the police, is presumed to be
reliable.”  State v. Riefenstahl, 172 Vt. 597,
598, 779 A.2d 675, 677 (2001) (mem.).  We
have explained that the presumption “is founded on the notion that the typical
citizen informant has no incentive to lie to the police, and is accountable for
false reporting if the information proves untrue.”  Goldberg, 2005
VT 41, ¶ 15; see also 2 W. LaFave, Search and
Seizure § 3.3, at 98 (4th ed. 2004) (“[C]ourts
have quite properly drawn a distinction between [an informant] and the average
citizen who by happenstance [is] in the position of a victim of or a witness to
criminal conduct and thereafter relates to the police what [he or she] knows as
a matter of civic duty.”); id. § 3.4(a), at 225 (“[W]hen an average
citizen tenders information to the police, the police should be permitted to
assume that they are dealing with a credible person in the absence of special
circumstances suggesting that such might not be the case.”); State v. Paszek, 184 N.W.2d 836, 842-43 (Wis. 1971) (applying
different rationale in assessing reliability of citizen-informers, who
generally provide information with intent to aid law enforcement out of concern
for themselves or others, as opposed to typical informants, who generally
provide information to police in exchange for some favorable treatment).  
¶ 23.         We
have limited the availability of this presumption to named citizen informants
who “simply come forward in the interest of law enforcement” and have excluded
from its reach individuals who provide information to the police in exchange
for money or favorable treatment, or who have a pre-existing relationship with
the police.  Goldberg, 2005 VT 41, ¶ 16. 
Based on the information in the probable cause affidavit, the named neighbor
did not provide information to the police in exchange for money, leniency, or
any other benefit.  Nor is there any indication that she had any
preexisting relationship with law enforcement that could suggest a motive to lie. 
And there is no indication of any other special circumstances suggesting a
motive to lie.  The only evidence of her motive is her hearsay statement,
reflected in the probable cause affidavit, that she was concerned for
defendant’s children.  These circumstances are sufficient to satisfy the
“credibility” prong of Rule 41(c).  Accordingly, and given that defendant
does not contest the factual basis underlying the hearsay statements from the
neighbor, the trial court properly considered the hearsay statements of the
named neighbor in evaluating the State’s probable cause affidavit.
¶ 24.         Having
concluded that the trial court properly considered both the odor of fresh
marijuana outside the door and the statements of defendant’s neighbor, we
readily affirm the trial court’s conclusion that the State had probable cause
to obtain a search warrant, and its denial of defendant’s suppression
motion.  The smell of fresh marijuana outside defendant’s door, coupled
with the next-door neighbor’s statements that defendant admitted to selling
marijuana and heroin out of his home, that every day a lot of unfamiliar people
come and go from defendant’s house at all times of day, and that people
frequently knock on her door looking to buy marijuana or heroin because they mistake
her residence for his, collectively constitute sufficient evidence of criminal
activity, and grounds to conclude that evidence of the crime would be found in
defendant’s home, to support the search warrant.  See Guzman, 2008
VT 116, ¶ 14 (unmistakable odor of marijuana may provide probable cause
when linked to specific person or persons by particular circumstances in which
it is discovered or by other evidence at scene).
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]
 Similarly, we need not consider whether Vermont’s recent
decriminalization of small amounts of marijuana undermines our prior holding
that “the odor of marijuana, detected by a trained and experienced police
officer, can provide a reasonable basis to believe that” a marijuana-based
crime has occurred.  State v. Guzman, 2008 VT
116, ¶ 14, 184 Vt. 518, 965 A.2d 544; see 2013, No. 76, § 1. 



[2]
 We need not decide whether, if defendant or his partner had
produced any evidence that either was listed in the patient registry, the odor
of marijuana would nonetheless have supported probable cause for a search
warrant.  



