Appeal from Superior Court, Orange Unit, Criminal Division
Timothy B. Tomasi, J.
J. Donovan, Jr., Attorney General, and Elizabeth L. Anderson,
Assistant Attorney General, Montpelier, for
B. Delaney of Martin & Associates, P.C., Barre, for
Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
1. 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. 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
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
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
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 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 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). 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
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 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 ...