State v. Weiss

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                          Nos. 87-214 and 88-106


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Michael I. Weiss                             Unit No. 3, Orleans Circuit
and Jeffrey Weiss
                                             April Term, 1989


Michael S. Kupersmith, J.  (87-214)

Joseph J. Wolchik, J.  (88-106)

Philip H. White, Orleans County State's Attorney, Newport, and Thomas M.
   Kelley, Drug Prosecutor, Department of State's Attorneys, Montpelier, for
   plaintiff-appellant

Rubin, Rona, Kidney & Myer, Barre, for defendant-appellee Michael Weiss

Gaston, Durrance & Fairbanks, Montpelier, for defendant-appellee Jeffrey
   Weiss



PRESENT:  Allen, C.J., Peck, Dooley and  Morse, JJ., and Katz, D.J.,
          Specially Assigned



     PECK, J.  This interlocutory appeal turns on whether the affidavits in
support of a search warrant issued by Judge Pineles for the residence of
defendant Michael Weiss set forth facts establishing probable cause and
whether Judge Pineles had reasonable cause to authorize a nighttime search
of the premises.  See State v. Brown, 151 Vt. 533, 535, 562 A.2d 1057, 1058
(1989) (critical inquiry for judge issuing warrant is whether, taking
information as true, illegal materials would more likely than not be found
at residence).
     Two defendants, Jeffrey and Michael Weiss, were charged together in
September of 1986 for possession and cultivation of marijuana, 18 V.S.A. {{
4224(f)(1)(B), 4224(g).  Some of the evidence against them was obtained
during a nighttime search of the Weiss residence.  Shortly after they were
arraigned, the trial court dismissed the charges against Jeffrey Weiss
because the affidavit of probable cause submitted in support of the
Information against him failed to establish probable cause.  In response to
defendant Michael Weiss' pretrial motions, Judge Fisher reviewed the search
warrant application and granted his motion to suppress the evidence obtained
in the execution of the search warrant.
     On July 20, 1987, the State filed six affidavits in support of an
Information recharging Jeffrey Weiss.  The affidavits contained information
known to the officers at the time of arrest, but not included in the
original affidavit.  They also provided a list of items seized at Michael
Weiss' residence, and the sworn testimony of Lisa Weiss that her son
Jeffrey stored belongings at the residence and that he told her all the
marijuana belonged to him.
     Ruling on defendant Jeffrey Weiss' pretrial motion to suppress, Judge
Wolchik concluded, as had Judge Fisher, that the evidence found at defendant
Michael Weiss' residence should be suppressed due to the insufficiency of
the affidavits in support of the search warrant application.  The resolution
of the validity of the search affects the cases against both defendants.
Accordingly, we accepted the parties' stipulation that these two cases be
consolidated for this appeal.
     The State filed this interlocutory appeal claiming that the affidavits
support the initial warrant issued by Judge Pineles.  The State argues in
the alternative that the exclusionary rule should not bar the admission of
the seized evidence because the police executed the warrant in "good faith."
Since we believe that the affidavits set forth substantial evidence in
support of the warrant and that a nighttime search was appropriate, we
reverse and therefore do not reach the question of "good faith."  A summary
of the key facts from the affidavits follows.
     On September 22, 1986, Trooper Whitcomb suspected the cultivation of
marijuana in the town of Albany, one-half mile southeast of the intersection
of Town Highway #1 and Town Highway #3, based on his aerial observation of
the area.  Later that day, he reported this to Trooper Roberts.  Ten days
later, on October 2, 1986, both Whitcomb and Roberts returned to the area on
foot and found more than thirty cultivated marijuana plants tied to stakes,
with a white granular substance that they suspected was fertilizer sprinkled
at the base of each plant.  They checked the area for persons or fresh
tracks of persons who may have been tending the plants, but found none.
     One hour later, they returned with two other Troopers, Lt. Gilbert and
Sgt. White, to uproot the marijuana plants.  There they found defendants,
Michael Weiss and his son Jeffrey Weiss, and several items that had not been
there earlier, including two black plastic garbage bags, a brown plastic
garbage can containing manicured marijuana residue, a camouflage nylon bag
with shoulder straps, shears, and a loaded shotgun.  They arrested
defendants on charges of possession, manufacturing, and cultivation of
marijuana, and gave them Miranda warnings.  Defendant Michael Weiss made
three incriminating statements after invoking his right to counsel: (1) that
he owned 390 acres of land in the town of Albany; (2) that he lived on the
land that he owned; and (3) that his son did not need a hunting license on
the land where the marijuana plot was located.  The first two statements
were made in response to police questioning.  All three statements were
included in the affidavits submitted in support of the search warrant
application.
     Defendants were placed in custody, and the Troopers applied for a
search warrant for the residence of defendant Michael Weiss located in the
town of Albany.  After 10:00 p.m. that same evening, Judge Pineles ordered
the search to be conducted "at any time" within the next three days.  At
midnight on October 2, 1986, when no one was home, the police entered the
house through a second-story window.  They searched the house and found
several incriminating items.  Lisa Weiss -- wife of defendant Michael Weiss
and mother of defendant Jeffrey Weiss --  returned home at approximately
1:00 a.m. and answered police questions.
     After the pretrial suppression hearing, the court suppressed the first
two statements made by defendant Michael Weiss.  After excising the two
statements from the affidavits, it found no probable cause for the search.
The court reasoned that once the incriminating statements were excised, one
had to infer that Michael Weiss possessed cultivation materials, and further
infer that he kept the cultivation materials at his house.  "[I]nferences
based on inferences," in the court's view, did not support a ruling based on
"substantial evidence" that the specified items were presently at the
residence.  In particular, the court stated:
          There is no information provided in any of the material
          supporting the application that would in any way tie the
          defendant's residence with the cultivation operation[,]
          . . . no statement of the distance between the plot in
          which the defendant was found, and his home[,] . . .
          no information about the proximity of other structures
          or residences to the plot[,] . . . no assertion that a
          path of any kind leads between the plot and the
          residence[, and] . . . no allegation that anyone has
          ever observed, or even heard rumors that any storing of
          the materials, processing, cultivating or transacting of
          business involving the marijuana has ever been carried
          out at the residence.
As a result, the seized evidence was suppressed.
                                   I.
     Taking the information in the affidavits as true and excising the two
incriminating statements, the propriety of the search warrant issuance turns
on whether there was substantial evidence supporting the warrant.  State v.
Potter, 148 Vt. 53, 60, 529 A.2d 163, 167 (1987).  Mindful of the fact that
reviewing courts should give great deference to probable cause determin-
ations, State v. Ballou, 148 Vt. 427, 434, 535 A.2d 1280, 1284 (1987), we
hold that substantial evidence supported the search warrant. "Affidavits
must be viewed in a common sense manner and not be subjected to
hypertechnical scrutiny."  Id.
     The trial court specifically mentioned that the affidavits failed to
link the residence with the marijuana plot by a path, or even indicate their
proximity to each other.  The court ruled that the information in the affi-
davits was sufficiently current so as to establish the location of defendant
Michael Weiss' residence.  It listed the following facts in support of its
ruling:
          a)  [The investigating officer's fellow trooper]
          Officer Webster's previous dealings with the defendant
          within the year at defendant's residence;
          b)  confirmation by a U.S. Border Patrol agent familiar
          with the area of the defendant's place of residence
          within 30 to 60 days of the warrant request;
          c)  characterization of the defendant's residency as
          "longtime" in the place described.

The court concluded, however, that probable cause to search the residence
was absent because the affidavits did not "tie the defendant's residence
with the cultivation operation."  We disagree with this conclusion.
     The court explained that one must infer that the materials used in the
process of cultivation and manufacture of marijuana "exist at all."  The
police found such materials -- e.g., black plastic garbage bags, shears,
twine, matchbooks, a shotgun, shotgun shells and knapsack -- at the planting
site close to the defendants.  The police found defendant Michael Weiss
within an arm's length of a plastic garbage can containing marijuana residue
that had not been at the planting site one hour earlier.  No inference need
be made that the materials existed.  The court had to infer only that more
supplies were stored at the residence.
     The necessary nexus between the house and the planting site existed.
The application for the search warrant listed defendant Michael Weiss'
address as in the town of Albany.  The affidavits submitted in support of
the warrant application stated that the planting site was also located in
the town of Albany.  The connection between the materials to be seized and
the premises where the police "propose to search can be inferred from the
nature of the crime, the type of materials sought, the extent of an
opportunity for concealment, and reasonable inferences as to criminal
behavior."  State v. Moran, 141 Vt. 10, 17, 444 A.2d 879, 882 (1982).  Items
such as the ones found at the planting site are commonly stored at a
household.  Unlike State v. Harp, 299 Or. 1, 697 P.2d 548 (1985)(en banc),
where the sole connection between the defendant and the marijuana was the
proximity of the planting site three-eighths of a mile from the defendant's
residence, here there was evidence of "human activity in the area."  Harp,
299 Or. at 3, 697 P.2d  at 549.  The presence of defendants at the marijuana
patch with common household items created a link between the residence and
the site sufficient for the court to lawfully authorize the search warrant.
     We will not engage in hairsplitting or hypertechnical analysis where it
is objectively reasonable to infer that defendants stored additional
materials at their home.  Ballou, 148 Vt. at 433-34, 535 A.2d  at 1284.  We
hold that substantial evidence supported the issuance of the search warrant
even after the excision of the incriminating statements.  See V.R.Cr.P.
41(c); Potter, 148 Vt. at 60, 529 A.2d  at 167 (where existence of probable
cause is challenged, "this court must determine whether there is substantial
evidence in the record supporting the magistrate's decision").
                                    II.
     Defendants argue that even if the affidavits established probable cause
for the issuance of a warrant for the search of defendant Michael Weiss'
house, they did not establish reasonable cause for authorization of a
nighttime search of the premises.  Vermont Rule of Criminal Procedure 41(c)
states, "The warrant shall be served between the hours of 6:00 A.M. and
10:00 P.M. unless the warrant directs that it may be served at any time.
The judicial officer may, by appropriate provision in the warrant, and for
reasonable cause shown, authorize its execution at other times."  A
nighttime search is justified "where there is information presented in the
search warrant affidavit that, absent a nighttime search, there is a danger
that the evidence sought will be disposed of."  Commonwealth v. Johnson, 315
Pa. Super. 579, 584-85, 462 A.2d 743, 746 (Pa. Super. Ct. 1983). (FN1)

     The warrant in the instant case allowed execution "at any time" and
although the trial court made no finding as to the time when the search
occurred, there is substantial evidence that it occurred after midnight.  At
that time the defendants had been arrested.  "The very real possibility
existed that appellant[s'] fate had become known or would become known
before the night was over, and that this would prompt removal of the
[incriminating evidence] by others."  Commonwealth v. Crawford, 320 Pa.
Super. 95, 101, 466 A.2d 1079, 1082 (Pa. Super. Ct. 1983); Commonwealth v.
Baldwin, 253 Pa. Super. 1, 6-8, 384 A.2d 945, 948-49 (Pa. Super. Ct. 1978).
The judicial officer knew from the affidavits that Michael Weiss had a wife.
He could have reasonably concluded that the spouse might upon learning of
her husband's apprehension seek to destroy any incriminating evidence and
that an immediate search was warranted.  Since the officers applied for the
warrant after 10:00 p.m., in order to authorize an immediate search the
judge was obliged to authorize a nighttime search.
     The information contained in the affidavits established probable cause
for the issuance of a warrant for the search of defendant Michael Weiss'
house and reasonable cause existed to permit a nighttime execution of the
search.  The information obtained from this search in turn provided probable
cause to arrest defendant Jeffrey Weiss.
     Reversed and remanded.
                                             FOR THE COURT:

                                             _____________________________
                                             Associate Justice



FN1.  The Reporter's Note to V.R.Cr.P. 41(c) states that "[t]he warrant is
to be executed in the daytime unless it expressly provides otherwise on the
specific finding by the judicial officer of cause for a nighttime search."
(emphasis added).  The record does not reflect a specific finding by the
issuing judge of reasonable cause for a nighttime search.  However, we
believe that the Reporter's Note is incorrect insofar as it indicates a
necessity for a specific finding.  The note states that Rule 41 (c) is
based on F.R.Cr.P. 41 (c).  Under federal law, the only requirement for a
valid warrant authorizing a nighttime search beyond probable cause for
issuance is "that there be cause for carrying on the unusual nighttime . . .
search that, upon showing made, convinces the magistrate that it is
reasonable."  United States v. Curry, 530 F.2d 636, 637 (5th Cir. 1976).
We are persuaded that the federal standard is correct.



________________________________________________________________________________

                           On Motion to Reargue

     PECK, J.  Subsequent to the filing of the opinion in this case,
defendants moved for leave to reargue.  V.R.A.P. 40.  By reason of matters
brought to our attention by defendants' motion, we have recalled the opinion
and redrafted portions thereof relating to the contention that reasonable
cause for a nighttime search was lacking.  The revisions do not change the
result, and the entry order is not affected.

     Motion to reargue denied.  See Brouha v. Postman, 145 Vt. 449, 453,
491 A.2d 1038, 1040 (1985).