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State v. Finkle

Supreme Court of Vermont

October 19, 2018

State of Vermont
Douglas J. Finkle, Sr.

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

          ARROLL, J.

         ¶ 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.[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]

         ¶ 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.

         ¶ 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).[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 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 ...

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