*1 49 23, 27-28, Sеe, Mecier, 475 e.g., Vt. 460 A.2d In re dened. 6601; Gag (recognizing V.S.A. Alicea v. right); such § (7th 1982) (federal non, grants F.2d constitution Cir. (defend I, testify behalf); Art. right in own Vt. Const. Ch. counsel”). right “by has be heard himself and his ant Moreover, focusing upon the an instruction upon credibility bearing in the as his interest outcome the trial An may presumрtion of innocence. innocent encroach defendant, truthfully, testifying has the same interest the out defendant, untruthfully. guilty testifying come of the trial as a cases, jury is in both told that the fact that Yet credibility. on trial relevant to testify is a general A who wishes instruction a defendant testimony competent judged in the witness and that his is to impermissibly way any other sin- same that of witness does not gle out the defendant. and remanded a new trial.
Reversed Maguire of Vermont v. Mark A.
[498 1028] No. 84-419 Allen, C.J., Hill, Underwood, Gibson, Present: Peck and JJ.
Opinion Filed June *2 Shelley Hill, A. County Deputy Attorney, Windsor State’s and Baltz, (On Brief), Junction, Joanne Clerk White Law River Plaintiff-Appellee. for Johnson, Meyers Hershenson, Norwich, H.
Peter Carter & Defendant-Appellant. for
Gibson, defendant, interlocutory by J. This an fol- lowing the suppress trial court’s denial his motion to evidence apartment pursuant from taken to a search The warrant. trial granted interlocutory appeal defendant’s motion for and following question: certified the by
Does the May Search Warrant issued this specifically thereof, Support and the Affidavit in meet requirements constitutional of the Fourth and Four- teenth Amendments of the U.S. Constitution and Article Eleven of the Vermont Constitution? (1)
Defendant raises three claims: cause, warrant fails to establish violation Constitution; (2) Fourth Amendment to the United States stringent Constitution contains more law, imposed by search warrants than are federal and these re- quirements case; were met authorities this and the information in the supрort affidavit was too stale to issuance of a warrant. We conclude search warrant issued in requirements. accordance with constitutional 4,May The relevant are facts as follows. On a Vermont prepared State Police officer an affidavit and obtained warrant apartment to search defendant’s Windsor for cocaine and as- dealing. sorted evidence of cocaine The search was executed the following day. years drug The affidavit recited the officer’s en- experience forcement and stated that two informants had de- year during past sales scribed of cocaine informant, continuing then referred a third more. me it days informant told Within a reliable Maguire apartment at 17 Main Street gone had the Mark apartment an of co- at the it saw amоunt Windsor. While paraphernalia. It apartment cocaine caine well as which Beer cocaine dust on it also saw a Miller mirror with being process used cocaine. indicates was to cut and re- to be and believe the confidential informant truthful following liаble on the facts: based Po- 1. The Confidential Informant has other drug agencies lice reliable has made purchases regulated drugs. trolled under- 2. The Informant has introduced an Confidential past 3 drug to known dealers cover officer within months. *3 State Officer us- personally
3. have talked to the Police drug Confidential for ing the from Massachusetts Informant they buys have obtained and he told me all the information The from the has been reliable. Confidential Informant from the State also told me the information Police Officer out of Informant has led them Massachusetts Confidential verify through (Drug D.E.A. and caused them to information Administration) D.E.A. him the and that told Enforcement information was reliable. Confidential Informant’s drug informa- 4. The Informant has me Confidential area tion on residences in the Bethel State Police four of information within few months. As a result the the served, in resulting were and search warrants obtained cocaine, possession marijuana and numerous arrests seizure of regulated drugs, hashish as well as the and other drugs. the upheld have
5. Two above of the search warrants [been] of this date. challenges adequacy of оn the
Each of claims this affidavit.
I. insufficient, the affidavit under federal Defendant first claims the law, finding probable cause to issue support judge’s satisfy the fails to Defendant that warrant. asserts Texas, Aguilar trustworthiness (1964), Spinelli v. Citing U.S. 410 and (1982 1984), Hall, ar- Supp. J. Search and Seizure and test, namely, two-pronged a “basis knowl- gues that there is a (Spinelli), “veracity” prong (Aguilar) prong and a both edge” judge may or which must be before a consider satisfied hearsay in an affidavit. information points issuance of out test for search war- Supreme changed by rants Court’s decision Gates, Illinois expressly in which 230-39 rеjected analysis of a “two-pronged” favor test which totality or must look circumstances to determine cause for the search warrant. Gates two-pronged
Defendant concedes “relaxed” analysis standard; adopted “totality of the circumstancеs” however, Gates requires that “some facts he claims because bearing particular provided,” citing two issues be [the] id. (emphasis original), necessary 231 n.6 it is that the verac- ity of each informant be established. Defendant asserts identify fails to which of the de- three informаnts its reliability thus, claims, pertains; tailed because information, veracity is no personal there admissible corrobo- officer, ration the affidavit is insufficient and ve- fails the racity prong “Aguilar-Spinelli-Gates disagree. test.” We outset,
At the note Supreme we the United Statеs Aguilar clearly Court has two-pronged abandoned the test of Spinelli totality-of-the-circumstances favor of a approach. The stated, plainly merely Court has “We qualify did not refine or ‘two-pronged rejected . . .” Massa hypertechnical. test.’ We it as *4 Uрton, chusetts v. 727, 732, 2085, (1984), 466 U.S. Ct. 104 S. 2087 remand, 363, 394 Mass. 476 (suppressing N.E.2d 548 statutory evidence on grounds). state and constitutional Earlier, they Court appellate had admonished courts that “should not interpreting invalidate warrant in the affidavit [a] commonsense, hypertechnical, a manner,” rather than a Ventresca, 102, v. 380 U.S. 109 because affidavits nonlawyers a in the midst and haste of normally “are drafted a investigation.” Id. at 108. adopted This has such criminal Moran, 879, policy. 141 Vt. appellate to make a review is not function
Since
cause, magistrate’s
a
determi
probable
de novo determination
”
“
Gates,
‘great
to
deference.’
probable
nation of
cause is entitled
419);
Spinelli,
supra, at
supra,
trate and the
court
prac-
a
simply
is
to make
The task
whether,
tical,
given all the circum-
commonsense decision
him, including
set forth
the affidavit before
stances
persons supplying
“veracity”
knowledge”
and “basis of
information,
probability
hearsay
fair
that contra-
there
a
particular
of a
be found
a
band or evidence
crime will
duty
reviewing
simply
place. And
ensure
basis had a “substantial
cluding]”
existed.
cause
added)
(emphasis
(quoting
supra,
Although argues reliability per- its information on which of the three informants tains, expressly the affidavit’s de- court below concluded informant, “veracity” to the third information related tailed and whose only provided informant who substantial *5 reports immediately We reading followed. believe this is a fair of the affidavit. considering
In whether the had a substantial basis for cause, finding probable applied we also note that the officer who experienced for the drug investigations warrant was and had previously informant, been reliable information re- sulting in at least two valid searches. The had officer further veri- reliability through experiences fied the informant’s of other agencies, both in and out of state.
Giving magistrate’s interpretation, due deference to the 733, Upton, supra, 2088; Gates, 466 U.S. at supra, S. Ct. at 462 U.S. at basis, we conclude that there was a substantial totality circumstances, of the magistrate’s for the finding of probable cause to search.
II. Defendant also asks this independently adopt Aguilar-Spinelli approach (abandoned, noted, by as we have Gates) Supreme part Court in of the Vermont Constitution, I,Ch. Art. 11.
Although defendant cited Article 11 in introductory para- graph memorandum, of his trial court that memorandum failed to discuss the Vermont in any respect. Constitution Understanda- bly, the trial court did not address defendant’s state constitu- in denying tional claim suppress. his motion to In stipulating for interlocutory appeal of ruling, parties the court’s agreed “defendant’s motions question validity memoranda search warrant and whether the supplies stitutionally sufficient cause for the issuance thereof.”
Aside from arguing рerceived Aguilar-Spinelli merits of the approach over those provides analysis defendant no the in comparison Constitution with the federal consti- tution showing and no extraordinary circumstances that would justify our addressing this issue for appeal. the first time on Ac- cordingly, we shall not consider the issue herein. See State v. Taylor, 145 Vt. 491 A.2d (declining to address federal and state constitutional issues adequately briefed). raised or
III. the informa- Finally, presents arguments three defendant Sgro Citing was based was stale. tion on which the warrant first claims precise time requirements” that the because “strict affidavit, warrant was defective. appear in the of observation contention, however, Sgro Contrary construed to defendant’s *6 only recite “facts so require to that an affidavit federal statute justify as to clоsely issue of the warrant related to the time the Sgro Id. if probable time.” Even fact finding a cause that any supported position, would have been such rule superseded totality-of-the-circumstances by the standard Gates; affidavit satisfied that standard. the argues items “disposable that the nature of the
Defendant next As to be seized” the warrant stale. below con- rendered cluded, enterprise illicit the affidavit indicated that defendant’s protracted was of continuous nature and could have been a long year. operating for as a Under all the circumstances him, proba- justified concluding there was before and evidence seen within ble cause to believe that the contraband apartment. prior days still in defendant’s four would be found Gates, supra, at 238. 462 U.S. past “Within the
Finally, focuses the sentеnce: defendant days gone it had to the Mark four a reliable informant told me Maguire apartment 17 Main Street in Windsor.” When the affidavit, magistrate interpreted it to mean that the read the he past . . . was within the “first hand observation made informant’s However, days.” interprets the sеntence to mean four previous days, informant had transmitted within the four agree age of indeterminate to the officer. We that however, interpretation; we subject sentence is to more than one interpretation give are to due to the constrained dеference Gates, supra, and are magistrate, Upton, supra; we un- say interpretation is erroneous unreasonable and able to that as a matter of law. raising of the Vermont constitu-
Because
the insufficient
claim,
question
Do
rephrased
is
tional
the certified
constitutional
search warrant and
affidavit meet the
to the
Fourteenth Amendments
Fourth and
in is
affirmative.
United States Constitution? Our answer
proceedings.
Case remanded for further
C.J.,
Allen,
dissenting.
agree
do not
the words “Within
past
days
gone
me it had
four
a reliable informant told
aрartment
may reasonably
.”
Maguire
interpreted
Mark
in Maguire’s apartment
mean
had been
informant
days.
within the
“Deference to the
...
Leon,
United States v.
104 S. Ct.
boundless.”
(1984).
presented
“Sufficient information must be
to allow that official to determine
cause
. .”
any
. .
Illinois
Without
concerning
information at all
the time within which an observa
made, magistrate
tion was
is unable
the likelihood
to determine
present
apartment.
still
in the defendant’s
There
evidence
fore,
King
State,
probable cause is absent.
410 So. 2d
(Fla.
(affidavit
1982)
App.
stating
Dist. Ct.
“within the
six
last
days
met with a сonfidential and reliable informant who
[affiant]
King rolling
advised
...
one
observed
Diana
[affiant]
cigarettes
hand-made
filled with what
believed to be
[the affiant]
cannabis” contained no indication as to when the informant actu
incident);
ally
Tolbert,
observed the
Commonwealth v.
492 Pa.
576, 578-79,
(1981) (affidavit
stating
12-
“On
*7
1-75 received information from a
reliable informant
.” held
insufficient).
Williams,
App.
But
see
49 N.C.
(Ct.
1980)
App.
(magistrate
S.E.2d 604
could infer observation
was recent where affidavit stated within
in
36 to
hours
formant had
contacted affiant and said
had observed hashish
apartment),
dismissed,
denied,
review
(1981) (criticized
N.C.
LaFave,
* Leon, supra, suppression States illegally Under seized evidence required at trial would under the Fourth Amendment to the United good States Constitution if acted faith reliance a warrant magistrate. issued a detached and neutral Because this issue was neither argued Constitutions, briefed nor under either the United its applicability present to the case not addressed.