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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. Defendant appeals fro 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 ...