State v. Veburst

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.


                                No. 88-639


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 3, Orleans Circuit

Philip G. Veburst                            October Term, 1990


Dean B. Pineles, J.

Thomas M. Kelly, Drug Prosecutor, Department of State's Attorneys,
  Montpelier, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and David J. Williams and
  William Nelson, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
          Specially Assigned


     DOOLEY, J.   Defendant Philip Veburst appeals his conviction, after a
court trial, for possession of marijuana with the intent to sell, 18 V.S.A.
{ 4224 (f)(1)(B).  He attacks the validity of a warrant issued to search his
residence and the trial court's refusal to order disclosure of the identity
of a confidential informant.  We affirm.
     On November 11, 1987, Vermont State Trooper Thomas Roberts received a
phone call from Detective Sergeant William Northrup of the Vermont State
Police.  Northrup informed Roberts that Franklin County State's Attorney
Investigator Gary Greenfield had contacted him with information Greenfield
had received from a confidential informant ("the Greenfield informant")
relating to the possible sale of illegal drugs by Philip Veburst at a
residence in Morgan, Vermont.  Roberts already had information from another
confidential informant ("the Roberts informant"), received in August of
1987, to the effect that a person named Phil was selling drugs out of a
house in Derby Line.  A motor vehicle record check revealed that Philip
Veburst matched the description given by the Roberts informant and lived
where the informant reported that "Phil" was living.  Roberts also learned
that Philip Veburst had been arrested and transported to his current
residence in Morgan on September 17, 1987.  Veburst had been in an accident
on that day and was taken to the hospital where he had an officer call his
Morgan home and leave a message with two identified persons.  One of those
persons, Gil Tabor, was identified by the Greenfield informant as having
purchased drugs from Philip Veburst.
     On November 23, 1987, State Trooper Roberts applied for a warrant to
search the house in Morgan.  Roberts' accompanying affidavit stated in part:
         It was related by Det. Northrup that the informant had
         told Gary Greenfield that two subjects had visited a
         subject named Philip Veburst at his residence in Morgan
         during the evening of 11/19/87 where approximately 1 lb.
         of marijuana and a quantity of hashish was observed in
         the bedroom of Veburst residence.  This writer contacted
         Gary Greenfield being informed by him that his source of
         information who refused to be identified told him that
         he was familiar with one of the two subjects visiting
         Veburst, a Gil Tabor.
The affidavit also contained all of the information set forth above,
including the information provided directly to Trooper Roberts in August by
his informant.  Trooper Roberts also provided a supplemental affidavit
indicating that the Greenfield informant had worked for Investigator
Greenfield in the past, making controlled buys of regulated drugs and
providing information obtained by other drug informants.
     The court issued a warrant authorizing the police to search Philip
Veburst's house in Morgan. Trooper Roberts and five other members of the
Vermont State Police executed the search and found seventeen pounds of
marijuana, a quantity of hashish, and several firearms in a closet in
defendant's bedroom.  Defendant was later charged with possession of
marijuana with intent to sell, in violation of 18 V.S.A. { 4224 (f)(1)(B)
(repealed in 1989).
     Defendant filed a pretrial motion to suppress evidence obtained during
the search, claiming that the affidavits supporting the search warrant
failed to establish sufficiently the reliability of the two informants cited
therein.  The court determined that the affidavits showed the reliability of
the Greenfield informant but that they failed to establish the reliability
of the Roberts informant.  The court denied the motion to suppress because
it found that the affidavits were sufficient to justify the search warrant
even when all information provided by the Roberts informant was deleted.
     At that point, defendant tried a different tactic.  He filed a motion
to compel disclosure of the identity of the Greenfield informant for the
purpose of challenging the basis of that informant's knowledge.  He alleged
that there was reason to believe that the law enforcement officials had
acted in bad faith by using false information or information gained by
government misconduct to obtain the search warrant in violation of the
holding in Franks v. Delaware, 438 U.S. 154, 155-56 (1978).  The court
denied the motion following an in camera inquiry of Investigator Greenfield.
     Defendant raises two claims on appeal:  (1) the trial court erred in
denying his motion to suppress evidence because the affidavit failed to set
forth facts sufficient to show the basis of the Greenfield informant's
knowledge; and (2) the court's findings pursuant to his motion to compel
were deficient because they failed to indicate whether the court during the
in camera examination inquired properly into the issues raised by the
motion.
                                    I.
     Defendant first argues that the evidence obtained pursuant to the
search warrant must be suppressed because the affidavit supporting the
warrant application did not establish a sufficient factual basis for the
Greenfield informant's story.  Defendant's pretrial motion to suppress
alleged that the affidavit failed to satisfy the standards for reliability
set forth in V.R.Cr.P. 41(c).  We recently affirmed that V.R.Cr.P. 41(c) re-
quires the application of the two-prong test set forth in Aguilar v. Texas,
378 U.S. 108, 112-15 (1964) and Spinelli v. United States, 393 U.S. 410,
415-16 (1969).  State v. Ballou, 148 Vt. 427, 535 A.2d 1280 (1987).  In
Ballou, we explained that:
         [T]he first 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 while
         the second prong requires that the facts be presented to
         the judicial officer that show either the informant is
         inherently credible or that the information from the
         informant is reliable on this occasion."

Id. at 434, 535 A.2d  at 1284 (citations omitted).
     Defendant's motion to suppress was premised solely on the second or
"reliability" prong -- that the reliability of the informants had not been
established.  As noted above, the trial court granted defendant's motion as
to the Roberts informant but denied it as to the Greenfield informant.  On
appeal, however, defendant has switched his theory and claims that the
affidavit did not meet the first or "factual basis" prong of the test.
Defendant insists that the affidavit does not show that the Greenfield
informant had a sufficient basis of knowledge for the information that was
supplied to the officers.
     V.R.Cr.P. 12(b)(3) states that motions to suppress evidence on the
ground that it was illegally obtained must be raised prior to trial.
V.R.Cr.P. 12(f) provides in part:
         Failure by the defendant to present any of the defenses,
         objections, or requests required by subdivision (b) of
         this rule to be made prior to trial, or to raise any
         other pretrial errors or issues of which the party has
         knowledge, at the times provided . . . in these rules
         and subject to constitutional limitations, constitute
         waiver thereof.
Because defendant's motion to suppress was based solely on the reliability
prong of the test, his failure to raise the factual basis objection prior
to trial constitutes waiver of that issue.  See, e.g., State v. Stanislaw,
153 Vt. 517, 528, 573 A.2d 286, 293 (1990).  Further, we do not generally
consider issues raised for the first time on appeal.  Id. at 527-28, 573 A.2d  at 292-93 (defendant must inform the court below of the proper grounds
for suppression to preserve the issue).
     There is one exception to the preservation requirement -- a finding of
plain error.  See V.R.Cr.P. 52(b); State v. Duff, 150 Vt. 329, 337-38, 554 A.2d 214, 219 (1988).  We will find plain error only in the rare and
extraordinary case where the error is obvious and so grave and serious that
it strikes at the very heart of a defendant's constitutional rights or
adversely affects the fair administration of justice.  State v. Schmitt, 150
Vt. 503, 505, 554 A.2d 666, 667 (1988).  We do not think the error, if any,
rises to that level.  While defendant filed a timely and detailed motion
launching a facial attack on the reliability of the informants cited in the
affidavit, he never questioned the basis of either informant's knowledge.
The problem with the affidavit is that it is poorly drafted.  As the trial
court found in ruling on the motion to compel:
         Although common sense supports a reading of [the]
         statement to mean that the informant was a firsthand
         witness to the information reported, the convoluted
         syntax, and the use of the term "subjects" could equally
         support a reading that s/he was not.

We are unwilling to premise a conclusion that there is plain error on
differences in interpretation of the wording of the affidavit.  We agree
with the trial court that the affidavit can be read as stating that the
Greenfield informant observed the marijuana and hashish in defendant's
bedroom.  Thus, the error, if any, is neither obvious nor so grave and
serious as to reach the level of plain error.
                                    II.
     Defendant's second claim is that the trial court erred in denying his
motion to compel disclosure of the identity of the Greenfield informant.
Defendant maintains that, because the informant may have been able to give
testimony relevant to an issue in this case, the court should have ordered
the disclosure of the informant's identity pursuant to V.R.E. 509(c)(2).  To
make a showing of relevancy, defendant raised two possible scenarios.  Both
began with his deposition testimony that he kept his bedroom door locked and
did not allow access to third parties.  With that factual predicate, the
first scenario is that the informant did not have firsthand knowledge that
marijuana was present in defendant's bedroom, that Investigator Greenfield
knew, or should have known, of this inaccessibility, and, thus, that the law
enforcement officials acted in bad faith when they implied in the affidavit
that the informant did have firsthand knowledge.  The second scenario is
that in order to learn that marijuana was present in defendant's bedroom,
the informant, acting as an agent of the police, conducted a clandestine
search of the bedroom, rendering this search illegal.  Defendant sought to
compel disclosure to prove that one of these scenarios occurred, at a hear-
ing held pursuant to  Franks v. Delaware, 438 U.S. 154 (1978).  In Franks,
the Court required that
         where the defendant makes a substantial preliminary
         showing that a false statement knowingly and inten-
         tionally, or with reckless disregard for the truth, was
         included by the affiant in the warrant affidavit, and if
         the allegedly false statement is necessary to the find-
         ing of probable cause, the Fourth Amendment requires
         that a hearing be held at the defendant's request.

Id. at 155-56.  Of course, defendant could make the preliminary showing
required by Franks only if the confidential informant testified to one of
the scenarios posited by defendant.
     The trial court concluded that identifying the informant would be
unnecessary if the affidavit evidenced a good-faith assertion by
Investigator Greenfield that the informant had firsthand knowledge about the
marijuana in defendant's bedroom.  The court acknowledged that it was not
absolutely clear from the language of the affidavit whether the informant
actually had firsthand knowledge.  Accordingly, the court held an in camera
inquiry of Investigator Greenfield and concluded "that the officers
involved acted in good faith and without deception, and that probable cause
existed on the face of the application."  In addition, the court ruled that
defendant's motion did not allege grounds sufficient to trigger an inquiry
into whether the informant conducted a clandestine search at the State's
behest.  The court denied the motion to compel disclosure of the informant's
identity.
     On appeal, defendant complains that the trial court's findings were
insufficient to indicate whether the court, during the in camera session,
inquired into his Franks allegations.  Because we find that the in camera
hearing was unnecessary in this case, we do not reach defendant's
objections.
     The confidentiality of the informant is based on Vermont Rule of
Evidence 509.  That rule gives the State a "privilege to refuse to disclose
the identity of a person who has furnished information relating to . . . an
investigation of a possible violation of a law to a law enforcement officer
. . . ."  V.R.E. 509(a).  It contains an exception, however, where "it
appears in the case that an informant may be able to give testimony relevant
to any issue in a criminal case."  V.R.E. 509(c)(2).  Defendant claims that
this exception applies here.
     We agree with defendant that the exception in Rule 509(c)(2) could
apply here if defendant made the requisite showing.  Our Rule 509 is
identical to Uniform Rule of Evidence 509 and is similar to proposed Federal
Rule of Evidence 510.  See Reporter's Notes to V.R.E. 509.  As the
Reporter's Notes indicate, a primary difference between V.R.E. 509 and the
proposed federal rule is that V.R.E. 509(c)(2) provides an exception to
informant confidentiality where the informant can testify on "any issue" in
a criminal case.  The equivalent subsection of the proposed federal rule
provides an exception only where the testimony is relevant to the issue of
guilt or innocence.  See id.  Because the scope of the exception extends to
any issue, it clearly covers the validity of a search warrant.
     In order to gain disclosure of the identity of a confidential inform-
ant, however, a defendant must first make the threshold showing that the
informant may be able to give relevant testimony.  As the Reporter's Notes
indicate, the threshold here is intended to implement the balancing approach
enunciated in Roviaro v. United States, 353 U.S. 53, 60-61 (1957), and in
McCray v. Illinois, 386 U.S. 300, 311-12 (1967).  Roviaro involved an
undercover government employee to whom defendant was alleged to have sold
drugs.  The Court recognized a government privilege to withhold the identity
of persons who provide information about violations of law but required
disclosure where "an informer's identity, or . . . the contents of his
communication, is relevant and helpful to the defense of an accused . . . ."
Rovario, 353 U.S.  at 60-61.
     McCray was a constitutional attack on a state court decision to apply
the privilege to protect the identity of an informant whose information had
supplied the probable cause to arrest defendant for possession of drugs.
The informant was a "tipster" who was not present at the arrest.  The Court
held that due process does not require the disclosure of the informant's
identity where the arresting officers testified, were subject to cross-
examination, and were believed by the trial court.  McCray, 386 U.S.  at 313.
The Court quoted with approval from a decision of the New Jersey Supreme
Court, emphasizing that if the defendant could force the disclosure of the
identity of an informant to test his reliability, "'we can be sure that
every defendant will demand disclosure'" and no informant will remain
confidential.  Id. at 306 (quoting State v. Burnett, 42 N.J. 377, 385-88,
201 A.2d 39, 43-45 (1964)).
     Consistent with the Court's rationale in McCray, courts applying the
informant privilege have required a threshold showing of need and relevancy
before requiring an in camera response by the state.  That showing must be
based on more than speculation or suspicion.  See, e.g., United States v.
Sai Keung Wong, 886 F.2d 252, 256 (9th Cir. 1989) ("mere suspicion that
information will prove helpful is insufficient to require disclosure");
United States v. Halbert, 668 F.2d 489, 496 (10th Cir. 1982) ("speculation
regarding what an informant might possibly testify to is not sufficient to
require disclosure").
     This threshold requirement was applied to a case virtually identical to
this one in State v. Sykes, 663 P.2d 691 (Mont. 1983) (overruled in part on
unrelated grounds).  In Sykes, a warrant to search defendant's home was
issued based on an affidavit reporting that a confidential informant had
stated that he had seen one-half pound of marijuana in defendant's bedroom
in the last twenty-four hours.  Defendant sought disclosure of the
informant's name based on an affidavit of his wife that she had been home
with her children and that no person "not known to us" had been in the home
and that no person was "likely to have seen the marijuana."  Id. at 692.  As
in this case, defendant suggested a number of possible theories of
government misconduct, including illegal entry and falsity of the
informant's information.  The Court, applying a rule identical to V.R.E.
509(c)(2), denied disclosure because defendant made only a "general
challenge" to the affidavit in support of the warrant.  Id. at 695.  The
Court emphasized that defendant had not excluded the possibility -- raised
by the State -- that the informant had been in his home with defendant's
consent and had seen the marijuana.  Id.  See also State v. Seaman, 236
Mont. 466, ___, 771 P.2d 950, 955 (1989) (applying Sykes and upholding trial
court's refusal to order disclosure where defendant attempted to attack the
credibility of the law enforcement officer to whom the informants gave
information); State v. Cervantes, 92 N.M. 643, 649, 593 P.2d 478, 484 (N.M.
App. 1979) (under similar New Mexico rule, no disclosure or in camera
hearing required where defendant fails to produce evidence suggesting
"affiant proceeded on the basis of a deliberate falsehood or reckless
disregard for the truth"); State v. Mertens, 268 N.W.2d 446, 452 (N.D. 1978)
(under identical North Dakota rule, no disclosure of informant whose
information provided probable cause for search warrant where informant not
involved in commission of crime and defendant makes no other showing of
necessity).
     If anything, the facts here are less helpful than those in Sykes.
Although defendant argues that no one could have seen the marijuana in his
room, the facts he provides are hardly conclusive on that point.  In fact,
Gil Tabor stated in his deposition that he saw defendant leave his room
carrying marijuana.  Defendant's factual predicate is little more than a
statement that he does not conduct illegal activity in the open.  It
requires numerous speculative leaps to go from that fact to the official
misconduct necessary for defendant to obtain suppression of the fruits of
the search.  If this showing were sufficient to compel disclosure of the
identity of an informant or to compel an in camera hearing, trial courts
would be required to employ these procedures in virtually all cases
involving informants.
     We hold that defendant has failed to show that the "informant may be
able to give testimony relevant to any issue in a criminal case . . . ."
V.R.E. 509(c)(2).  Accordingly, it was unnecessary for the court to hold an
in camera hearing in this case, and any error connected therewith is
harmless.
     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice