State v. Emmi

STATE_V_EMMI.92-077; 160 Vt. 377; 628 A.2d 939


 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-077


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden Circuit

 Anthony Emmi                                 February Term, 1993


 Linda Levitt, J.

 Thomas M. Kelly, State's Attorneys & Sheriffs Department, Montpelier, for
    plaintiff-appellee

 William C. Kittell, Burlington, for defendant-appellant



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      JOHNSON, J.    Defendant was convicted in a jury trial of felony
 possession of marijuana under 18 V.S.A. { 4230(a)(3), and appeals from the
 trial court's denial of his motions (1) to quash the search warrant as the
 product of an unconstitutional search, and (2) to compel the State to
 produce the confidential informant.  We affirm.
      At some point during the seventy-two hours before March 7, 1991, a
 police informant entered defendant's home wearing an electronic audio
 transmitter, for which the police had not obtained a warrant.  He observed a
 "brick" of marijuana and a large amount of cash, and believed there was
 additional marijuana in a safe.  Through the transmitter worn by the
 informant, the police were able to hear a conversation between the informant
 and defendant, and the informant later gave the police additional
 information based on his observations.
      On March 7, 1991, the State Police obtained a warrant to search
 defendant's home, supported by the affidavit of officer William Sheets,
 which in turn was based on information obtained from the confidential
 informant's electronic transmissions and his subsequent personal
 statements.(FN1) Armed with the warrant, the police then searched defendant's
 apartment, where they seized approximately three pounds of marijuana from
 defendant's safe, and over $1,000 in cash, scales, records, and other items.
 The informant was not present during the search and nor was he called as a
 witness at trial.
      Defendant was charged with felony possession of marijuana.  He moved
 for production of the electronic monitoring tapes and for suppression of the
 evidence seized during the search, asserting that the recorded statements
 were taped illegally, without judicial authorization, and could therefore
 not be used to form probable cause.  At the hearing on the motion,
 defendant's counsel explained:
           . . . I feel that the Court should examine the
           legitimacy of the electronic surveillance and if it
           decides that electronic surveillance should not be done
           in the home without warranting or without a search
           warrant, to then read the affidavit for the search
           warrant, excising any reference to electronic
           transmissions.

 The motions were denied, the jury found defendant guilty, and the present
 appeal followed.
                                     I.
      Defendant makes two attacks on the validity of the search warrant.
 First, he argues that the search warrant was invalid because the information
 on which it was based was obtained by an informant employing warrantless
 electronic monitoring equipment, and because the use of electronic
 monitoring without a warrant tainted any direct observations made by the
 informant while illegally wired.  This argument was not offered at trial and
 will not be considered for the first time on appeal, absent plain error.
 State v. Ringler, 153 Vt. 375, 379, 571 A.2d 668, 670 (1989).  Second,
 defendant contends that even if this Court considers the validity of the
 search warrant only on the basis of the informant's direct sight and sound
 observations, there was no probable cause for the warrant because the
 reliability of the confidential informant was not established prior to
 issuance.
      Under V.R.Cr.P. 41(c), a finding of probable cause sufficient for
 issuance of a warrant may be based on hearsay as long as "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."
 V.R.Cr.P. 41(c).  In State v. Ballou, 148 Vt. 427, 433, 535 A.2d 1280, 1283
 (1987), we noted that Rule 41(c)'s standard for issuing warrants based on
 hearsay adopts the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 110-
 16 (1964), and Spinelli v. United States, 393 U.S. 410, 415-19 (1969).  We
 explained in Ballou:
           Where part or all of the information provided to the
           judicial officer comes from confidential informants,
           V.R.Cr.P. 41(c) requires the information to meet a two-
           prong test set forth in the Aguilar and Spinelli
           decisions.  The test addresses two concerns: (1) that
           the judicial officer rather than the law enforcement
           officers makes the determination from the underlying
           facts that probable cause is present; and (2) that the
           information on which the determination is based is
           reliable.

  148 Vt. at 434, 535 A.2d  at 1284 (citations omitted).
       Defendant attacks the trial court's ruling that the informant could be
  deemed reliable because, while monitored by the State police, he had twice
  before entered defendant's residence, and had obtained marijuana on one of
  those occasions.  If we understand defendant's argument, he is suggesting
  that the earlier entries were illegal and that probable cause had been
  improperly established on the basis of prior illegal conduct.
       Affidavits supporting the issuance of a search warrant "'must be viewed
  in a common sense manner and not be subjected to hypertechnical scrutiny.'"
  State v. Weiss, 155 Vt. 558, 562, 587 A.2d 73, 75 (1990) (quoting Ballou,
  148 Vt. at 434, 535 A.2d at 1284).  The totality of the circumstances must
  be examined to determine whether substantial evidence supports the warrant.
  Weiss, 155 Vt. at 562, 587 A.2d  at 75. Here, viewing the totality of the
  circumstances, we cannot conclude that the informant's prior entries were
  illegal.  Defendant does not allege, and the record does not indicate, that
  defendant's acts might have tainted these visits, nor does he contend that
  the police supervision of the prior entries was deficient, casting possible
  doubt on the source of the marijuana allegedly purchased during one of these
  visits.  What defendant does allege is that the informant was "an extension
  of police presence . . . [and] a situation that is tantamount to robot
  control."
       The State does not deny that the informant acted as its agent.  Rather,
  the State responds to the argument by asserting that the purchase was not
  tainted because the only impermissible conduct identified in the course of
  any of the informant's entries was the use of a body wire, and that the
  information conveyed electronically was not taken into consideration by the
  trial court.  This is consistent with Vermont law and thus we find no
  reversible error.  See State v. Blow, 157 Vt. 513, 518-20, 602 A.2d 552,
  555-56 (1991) (warrantless electronic monitoring conducted in a home
  violates Article 11 of Vermont Constitution and conviction will stand only
  if not dependant on suppressed evidence).
       Moreover, even if the earlier entries did not shed light on the
  informant's credibility, we must determine, as we stated in Ballou, whether
  "the information on which the determination is based is reliable."  148 Vt.
  at 434, 535 A.2d  at 1284.  Rather than strict reliance on the informant's
  credibility, the gathered evidence from a controlled drug purchase may be
  used to establish the reliability of the information received.  This
  approach distinguishes personal credibility of the informant from
  informational reliability gleaned from physical evidence or police
  observation.  See Hignut v. State, 303 A.2d 173, 179-80 (Md. Ct. Spec. App.
  1973); Commonwealth v. Benlien, 544 N.E.2d 865, 867-68 (Mass. App. Ct.
  1989); State v. Wilson, 733 P.2d 54, 58 (Or. Ct. App. 1987).  As the court
  stated in Hignut:

              Although the narrative language [of the affidavit] is trimmed to
              the bone, its clear import is that the affiant . . . searched the
              informant and found him "clean," and sent him into the suspect
              premises, whence he came out "dirty."  This is the typical
              "controlled buy" investigative technique.  So long as the
              controls are adequate, the "controlled buy" alone may well
              establish probable cause to search a suspect premises . . . .
 303 A.2d  at 180 (footnotes omitted).
      Police control of the drug purchase provides the basis for the police
 to conclude that the informant has, in fact, obtained drugs from the claimed
 source and not from some other source, in contrast to an informant who
 simply appears with an illegal substance and makes unverifiable statements
 as to the source of the substance.  Additionally, the fruits of the
 controlled purchase and the supervision by the police of the purchase help
 assure that the judicial officer to whom application for the warrant is made
 "has information from which to make an independent determination of an
 informant's basis of knowledge and veracity." State v. Bruyette, ___ Vt.
 ___, ___, 604 A.2d 1270, 1276 (1992).
      Here, defendant has offered no specific objections to the manner in
 which the police supervised the prior entries to the defendant's home by the
 informant.  The application for the warrant was closely preceded by a
 supervised entry of defendant's home by the same informant who had
 previously executed a controlled buy in the same premises.  Having thus
 obtained marijuana from defendant's apartment under the tightly controlled
 circumstances described in the affidavit, the credibility of the informant
 was buttressed by proof that the information he supplied was reliable and
 the judicial officer could independently conclude that there was an adequate
 basis for the warrant.(FN2)
                                     II.
      Defendant next argues that the court erred in not revealing the
 identity of the confidential informant.  Our rules of evidence give 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).
 There is 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).  "Any issue" includes more than the question of
 guilt or innocence, but also covers the validity of the search warrant
 itself. State v. Veburst, 156 Vt. 133, 140, 589 Vt. 863, 867-68 (1991).
      Defendant points out that this case falls within the scope of the
 exception because here the confidential informant was the source of
 information that led the police officers to search defendant's bedroom,
 where the investigating officers "located a large amount of alleged
 marijuana."  Because the informant is the source of probable cause
 affidavit, defendant argues, his identity should be revealed.  Under the
 reasoning of Veburst, we do not agree that the identity must be disclosed.
 First, the credibility of the informant or the reliability of the
 information is the central issue for the magistrate in the issuance of a
 probable-cause warrant.  Simply because information obtained by the
 informant provided the basis for the police search does not mean that the
 identity must be revealed, absent a sufficient showing by defendant.  As we
 stated in Veburst, "[i]f 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."  156 Vt. at 143, 589 A.2d  at 869.  Second, there was
 no trial issue that required the informant's testimony.  The informant was
 not present during the search executed under the warrant.  And, unlike the
 appellant in Veburst, defendant did not develop any theory under which the
 informant's testimony might have demonstrated potential misconduct by the
 police during the search.  Consequently, the court was correct in denying
 defendant's motion to disclose the identity of the informant.
      Affirmed.


                                         FOR THE COURT:



                                         _______________________________
                                         Associate Justice



FN1.    The affidavit stated in part:
     5.  Within the past 72 hours, the cooperating individual entered
     the residence in question, fitted with an electronic audio
     transmitter.  The State Police searched the person of the CI
     [confidential informant] prior to him/her entering the residence,
     and found them to be free of drugs and contraband. . . . The CI
     was observed to enter the residence in question by this officer.
     Once inside the residence a conversation could be heard on the
     audio transmitter between the CI and a male identified by the CI
     as being Anthony J. "Tony" Emmi.  During this conversation Emmi
     was heard to advise the CI that he would sell him one pound of
     marijuana for $2250.00 . . . The CI was observed to exit the
     residence by this officer and this officer met with the CI shortly
     thereafter.
     6.  The CI advised that while in the residence, he/she observed a
     one pound "brick" of marijuana that was packaged in a large clear
     plastic ziplock bag.  The CI advised that he observed what
     appeared to be a large amount of money in a safe located in a
     first floor bedroom.  The CI believes that additional marijuana is
     located there.  The CI advised that he/she observed several
     baggies of marijuana in this room. . . .
     7.  The CI has entered the Emmi residence on two previous
     occasions in the past under Vermont State Police supervision.  On
     one occasion a quantity of marijuana was obtained from Anthony
     Emmi. . . .

FN2.     Defendant also argues that the State was required to produce the
 transcripts of the electronically transmitted information in order for
 defendant to review the credibility of the informant and the veracity of his
 observations.  Defendant contends that it would "serve justice" to review
 the tape.  Making the tapes available to defendant, however, would not only
 reveal the identity of the informant, but would run counter to our
 determination that the informant was reliable independent of the suppressed
 electronically gathered information.  Furthermore, the court did in fact
 conduct an in camera review of the recording of the transmitted information
 to determine if there was evidence of entrapment, of which it found none.