¶ 1.
Defendant was convicted of a single charge of marijuana possession and appeals from the trial court’s denial of his motion to suppress and dismiss. Defendant argues that the State’s application for a search warrant lacked probable cause and that the warrant was therefore invalid. Following a trial, the jury acquitted defendant of cultivation of marijuana, but convicted defendant of marijuana possession. The conviction was based on evidence that, according to defendant, was obtained in violation of his constitutional rights and should have been suppressed. We agree with defendant and reverse.
¶ 3. Defendant argues on appeal that the evidence found at his home should have been suppressed because it was obtained in violation of his rights under Chapter I, Article 11 of the Vermont Constitution. Article 11 and its federal counterpart, the Fourth Amendment to the United States Constitution, are particularly protective of people’s homes. See, e.g.,
State v. Quigley,
¶4. Defendant offers two alternative arguments for why the State’s application presented insufficient information to find probable cause for a search warrant. First, defendant argues that the inquest subpoena of his electrical records was invalid and that the electrical records therefore should not have been used to establish probable cause. We need not reach this first argument because we conclude that defendant prevails on his second argument — that the search warrant was not supported by probable cause, even assuming, without deciding, that the electrical records were validly subpoenaed.
¶ 5. Our review of the trial court’s probable-cause determination is deferential,
State v. Robinson,
¶ 6. In evaluating whether probable cause existed at the time the court issued the warrant, we examine the information available to the court at that time “without reference to whether the search turned up the evidence the informant described.”
Goldberg,
¶ 7. As the United States Supreme Court has held, for a warrant to be valid, the judge issuing the warrant must “be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.”
Whiteley v. Warden, Wyo. State Penitentiary,
¶ 8. The search warrant that issued here was based solely on an affidavit submitted by the deputy sheriff. The affidavit stated that on September 10, 2007, the Cl told the deputy sheriff that he knew that defendant was growing marijuana at defendant’s house based upon the following information: (1) the Cl bought marijuana from defendant at defendant’s house in August 2007 and saw a freezer bag of marijuana, various smoking devices, scales, and' a marijuana plant growing in defendant’s bedroom closet; and (2) “Mends had told” the Cl that they saw marijuana plants growing in defendant’s basement sometime around September 2006.
¶ 9. Both of these statements present reliability issues. The first statement is hearsay because it is the deputy sheriff reporting what the Cl told him, and the second statement is double hearsay because it is the deputy sheriff reporting what the Cl heard from Mends. As we have previously stated, when hearsay is incorporated into an affidavit, Vermont Rule of Criminal Procedure 41(c) requires us to follow the two-part
Aguilar-Spinelli
test for determining the reliability of such statements.
Robinson,
¶ 10. Under Rule 41(c), the State has to establish a substantial basis for the trial court to conclude both that the Cl
is “credible” and that the Cl’s information has “a factual basis.”
2
Here, to establish that
¶ 11. We first address whether the Cl was an inherently credible source, and we conclude that the Cl was not. Inherent credibility is usually established by evidence that the informant “has provided accurate information in the past.”
Id.
¶ 9 (citing
State v. Morris,
[The informant] has provided me reliable and creditable information in the past. I have been able to verify this [informant’s] previous information and found it creditable. . . . The information this [informant] has provided has concerned Addison County cocaine deals, their customers, addresses and vehicles that they are driving. I have been able to confirm that this information was accurate.
Id.
After a thorough analysis of applicable case law, we held in
Robinson
that even the detailed statements provided there were insufficient because “[t]he judge . . . was not informed, as
Aguilar
and our cases require, ‘of the
underlying circumstances
from which the officer concluded that the informant . . . was “credible”
or his information “reliable.” ’ ”
Id.
¶ 12 (quoting
Aguilar,
¶ 12. Because the State did not establish the inherent credibility of the Cl, the affidavit provided probable cause only if the State could establish the credibility of the specific information provided by the Cl in this instance. The test for credibility based on specific information is whether the State has made “a showing that the informant’s tip was against penal interest or that the information was corroborated by police to the point where it would be reasonable for them to rely on it as accurate.”
¶ 13. As for whether the Cl’s statements were against penal interest, the State does not argue that here, and the State made no such proffer when it applied for the warrant. Indeed, the State’s testimony below was that no penal interest was at stake for the Cl. For these reasons, the argument that the Cl provided information against penal interest is waived. See, e.g.,
Rowe v. Brown,
¶ 14. The next question is whether the statements of the Cl were “sufficiently corroborated by police ‘to the point where it [was] reasonable for them to rely on [these statements] as accurate.’ ”
Robinson,
¶ 15. The first category of actions — the drive-by of defendant’s residence and the DMV records check — are strikingly similar to actions that we held in
Goldberg
were not sufficient to corroborate an informant’s statements concerning criminal behavior. In
Goldberg,
the officer did a drive-by of the defendants’ house and a DMV records check, and we held that, although this “did corroborate some of the peripheral details of [the informant’s] story, it did nothing to confirm the allegations of criminal conduct.”
¶ 16. The only potentially corroborative evidence here was the information supplied by the subpoenaed electrical records. We noted briefly in Goldberg that the officer in that case recognized that obtaining utility records can be a way to corroborate an informant’s story. Id. But here, even assuming, without deciding, that defendant’s electrical records were obtained under a properly issued subpoena, those records failed to corroborate the Cl’s story.
¶ 17. The affidavit presented two facts taken from the power records that, according to the deputy sheriff, corroborated what the Cl told him. First, the affidavit stated that “[a]fter reviewing the power records, you can see that the records indicate a lot higher power usage at this time last year” and that this is “consistent with what the Cl said” about how “friends saw these marijuana plants a year ago.” The problem here is that the affidavit drew no connection between people seeing marijuana
plants at a particular time and power usage being higher during that time. Although the affidavit stated that “[i]ndoor cultivators of marijuana use high powered, heat emitting lamps (commonly high powered sodium and metal halide lamps) to foster the growth of indoor marijuana plants,” it stated nothing about the times in which such lamps are used. Further, to the extent that the deputy sheriff was
¶ 18. Turning to the second fact that the deputy sheriff relied on as corroborating the Cl’s story, the affidavit stated that “[t]he power records further indicate[] power usage has slightly increased each month starting with March of 2007.” The affidavit then provided a brief summary of the monthly meter readings leading up to the time when the Cl claimed to have personally seen the marijuana plants. As an initial matter, the affidavit overstated this claim, since monthly usage actually went down during two of the five transitions. The affidavit also used monthly aggregates of kilowatt hours for comparison, ignoring the fact that the monthly readings during these months spanned anywhere from twenty-seven to thirty-four days — a significant factor that must be taken into account in determining whether actual daily power usage had increased. But even if we were to overlook these deficiencies, the affidavit was insufficient because it provided no information about the significance of power usage increasing during this time. To the extent that the affidavit was claiming that indoor marijuana growers use their lamps more during the summer months, nothing in the affidavit made such a statement. Further, the power records revealed that there was at least one month in 2006 and another month in 2007 in which defendant had a similarly high reading during the dead of winter. Without any information to put the power records into context, the bare recitation of an increase in power usage cannot corroborate the Cl’s claim of a marijuana growing operation. In short, even if the affidavit was correct that defendant’s power usage increased at certain times of the year, the affidavit provided no information explaining why it was more likely that this increase was due to marijuana cultivation rather than innocent activity, such as using more air conditioning during the summer.
¶ 19. In summary, regardless of whether the power records were properly subpoenaed, the affidavit failed to provide sufficient information to establish probable cause, and the search warrant was therefore invalid. Defendant’s motion to suppress should have been granted, and, as a result, the court should also have granted defendant’s motion to dismiss, as a conviction cannot be upheld in this case without the illegally obtained evidence. Although the result of our decision today is to acquit a defendant who undoubtedly possessed marijuana in violation of the law, we noted in
Robinson
that such a result is sometimes necessary because “the application of the exclusionary rule here ‘encourages police to diligently corroborate information from a potentially unreliable source’ ” before applying for a search warrant to invade someone’s home.
Reversed; defendant’s motion to suppress and dismiss is granted.
Notes
Because the critical moment is the time of the application for the warrant, which in this case occurred in September 2007, and because we must limit our analysis to the four comers of the September 2007 application, our decision today regarding probable cause does not rely upon any of the testimony that was presented at the later hearing in August 2008 on defendant’s motion to suppress and dismiss. We do, however, reference that hearing when discussing the State’s failure to preserve certain arguments for appeal.
As in
Robinson,
here we do not need to reach whether there is “a factual basis” for the Cl’s information because the affidavit fails to establish that the Cl is credible. See
Robinson,