State v. Olsen

 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. 92-028


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windsor Circuit

 Thomas Olsen                                 June Term, 1992


 George F. Ellison, J.

 Jeffrey L. Amestoy, Attorney General, and Jane Gomez, Assistant Attorney
   General, Montpelier, for plaintiff-appellant

 William A. Hunter, Windsor, for defendant-appellee


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


      Dooley, J.   The State of Vermont appeals from a trial court order
 suppressing evidence of marijuana possession obtained in a search of
 defendant's home.  We reverse.
      The facts are not in dispute.  After defendant was arrested and charged
 with delivering marijuana to a confidential informant, members of the
 Southern Vermont Drug Task Force prepared the paperwork for a search warrant
 for defendant's home in Springfield.  The Task Force officers, however,
 found that all of the judges usually available for consideration of warrant
 applications were attending a training conference in Chittenden County,
 including Judge Paul Hudson, who was then assigned to the judicial district
 in question.  At the suggestion of Judge Hudson, who was in telephone
 contact with Officer Douglas Robinson, Robinson prepared a detailed
 affidavit and sent it and the warrant application by telefax to Officer Todd
 McCabe at the Essex Police Department.  In turn, McCabe prepared his own
 affidavit, stating that he had probable cause to believe that defendant had
 committed the crime of possession of marijuana and that the Robinson
 affidavit was attached, which it was.  The McCabe affidavit also stated that
 he had participated in the drug investigation detailed by Officer Robinson
 and that he had conducted the audio surveillance described in the Robinson
 affidavit.  The McCabe affidavit was personally sworn to before Judge
 Hudson.  Judge Hudson issued the warrant, and upon its execution the police
 uncovered marijuana in defendant's home.
      After informations were filed, defendant moved to suppress, alleging
 numerous grounds not at issue here.  The trial court reviewed the appli-
 cation process and ruled sua sponte that the warrant did not meet the
 requirements of V.R.Cr.P. 41(c) because the principal affiant had not
 appeared personally before Judge Hudson. (FN1) As a result, the court concluded
 that the evidence should be suppressed.  The trial court granted permission
 for the present interlocutory appeal pursuant to V.R.A.P. 5(b)(1).
      Almost all of the arguments in this case center on whether suppression
 is the proper remedy for a technical violation of Criminal Rule 41 that does
 not involve constitutional rights of the defendant.  If Officer Robinson
 had faxed his affidavit to Judge Hudson and the judge had issued the search
 warrant based on the faxed affidavit, we would have to reach that issue.  In
 that case, the affidavit would not have been "sworn to by the affiant
 personally before a judicial officer," as required by Criminal Rule 41(c),
 and we would have to decide the consequences of that noncompliance.
      This case is different.  Here, Officer Robinson faxed his affidavit to
 Officer McCabe, who prepared his own affidavit.  Officer McCabe was able to
 personally swear to his own affidavit before Judge Hudson and thus comply
 with Rule 41(c).  The district court found a violation of Rule 41 because
 the "principal affiant" did not appear personally before Judge Hudson.
      Contrary to the district court's conclusion, Rule 41(c) does not
 require that the "principal affiant" personally appear before the judicial
 officer.  The rule requires that the warrant issue "only on an affidavit or
 affidavits sworn to by the affiant personally before a judicial officer and
 establishing the grounds for issuing the warrant."  It goes on to say,
 however, that the court's finding of probable cause can be based on "hearsay
 in whole or in part, provided 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."  Obviously, if the affidavit
 provided to the judicial officer conveys hearsay "in whole," the principal
 source of the information will not personally appear before the judicial
 officer. (FN2) To recognize by implication a principal affiant requirement in
 Rule 41(c) would make the rule internally inconsistent.
      The real issue before the court was not whether the principal affiant
 appeared before Judge Hudson, but instead whether the McCabe affidavit was a
 sufficient basis for Judge Hudson to find probable cause.  In addressing
 that issue, we must view the affidavit "in a common sense manner" and not
 subject it to "hypertechnical scrutiny."  State v. Ballou, 148 Vt. 427, 434,
 535 A.2d 1280, 1284 (1987).  When Officer McCabe stated that he had probable
 cause to believe defendant had committed a crime and the only detail
 provided is the "attached" affidavit, a fair construction is that Officer
 McCabe based his conclusion on the information provided in Officer
 Robinson's affidavit.  That construction is supported by Officer McCabe's
 own statement that he was present for only part of the investigation of
 defendant.  Thus, the question before us reduces to whether the hearsay
 information in the Robinson affidavit meets the standards set out for the
 use of hearsay in Rule 41(c).
      Rule 41(c) sets forth a two-prong test for use of hearsay information.
 Id.  Under the first prong, the judicial officer must find that a
 substantial basis exists for believing that the source of the hearsay is
 credible.  The fact that Officer Robinson is named and is a law enforcement
 officer is sufficient for the judicial officer to find him "credible."   As
 the United States Supreme Court has held, "[o]bservations of fellow officers
 of the Government engaged in a common investigation are plainly a reliable
 basis for a warrant applied for by one of their number."  United States v.
 Ventresca, 380 U.S. 102, 111 (1965); see also 2 W. LaFave, Search and
 Seizure { 3.5(a), at 4 (2d ed. 1987) (after Ventresca, "lower courts have
 consistently held that another law enforcement officer is a reliable source
 and that consequently no special showing of reliability need be made as a
 part of the probable cause determination").
      Under the second prong, there must be a factual basis for the
 information provided.  Therefore, the affidavit must contain sufficient
 detail "so that the judicial officer can perform an independent analysis of
 the facts and conclusions."  Ballou, 148 Vt. at 434, 535 A.2d  at 1284.  It
 is undisputed that the detailed information supplied by Officer Robinson met
 this requirement.  Thus, both prongs of the hearsay test are met in this
 case.
      As further support for the conclusion we have reached, we note that
 cases decided under Federal Criminal Rule 41, upon which our rule is
 modeled, reach the same conclusion.  Although the wording is somewhat
 different, the federal rule similarly requires the affiant to swear to the
 affidavit before the judicial officer who issues the warrant, except in the
 special case of warrants on oral testimony, which is not applicable here.
 See Fed.R.Crim.P. 41(c)(1)(warrant to be issued by "the federal magistrate
 or state judge" before whom the affidavit is sworn) (emphasis added). (FN3)
 The federal rule has been consistently interpreted as allowing one law
 enforcement officer to submit an affidavit that simply conveys information
 provided by another law enforcement officer participating in the same
 investigation.  See, e.g., United States v. Griffin, 827 F.2d 1108, 1111-12
 (7th Cir. 1987); United States v. May, 819 F.2d 531, 536 (5th Cir. 1987).
      In holding that the McCabe affidavit was sufficient to allow Judge
 Hudson to find probable cause, we recognize that multiple officer
 investigations and the occasional unavailability of judges will sometimes
 require the type of procedure that was used here.  We do not endorse this
 practice in general, however, and find wisdom in the advice of the Fifth
 Circuit Court of Appeals:
            A police department does not enhance its ability to
         obtain warrants by consistently submitting affidavits
         signed by an officer possessing no personal knowledge of
         the facts to which he attests.  When, as here, the
         officer-affiant states as fact only what he has learned
         from another officer's statement of what he has learned
         from yet two other informants, one of whom is not a
         police officer, the circuitous transmission of inform-
         ation obfuscates judicial consideration, and invites
         increased judicial scrutiny, of the affidavit.  Police
         should, therefore, seek to provide magistrates with
         warrant applications from the law enforcement official
         most directly involved in the investigation and most
         familiar with the facts stated in the affidavit, rather
         than routinely reserving for one officer the task of
         collecting, signing, and presenting affidavits from
         various officers.

            Nonetheless, it is undisputed that officers may
         submit warrant applications containing hearsay,
         including, of course, information provided by other
         officers.

 Bennett v. City of Grand Prairie, 883 F.2d 400, 407 (5th Cir. 1989)
 (footnote omitted).  A judicial officer who receives an affidavit from an
 officer who has no independent knowledge of the facts is justified in
 refusing to issue the warrant without the direct source.  If the judicial
 officer decides to accept the affidavit, however, we cannot reject the
 affidavit solely because the direct source fails to appear.
      Reversed and remanded.

                                         FOR THE COURT:




                                         Associate Justice


FN1.        V.R.Cr.P. 41(c) states:
     (c) Issuance and Contents.  A warrant shall issue
 only on an affidavit or affidavits sworn to by the
 affiant personally before a judicial officer and estab-
 lishing the grounds for issuing the warrant.  If the
 judicial officer is satisfied that there is probable
 cause to believe that grounds for the application exist,
 he shall issue a warrant identifying the property or
 other object of the search and naming or describing the
 person or place to be searched.  The finding of probable
 cause shall be based upon substantial evidence, which
 may be hearsay in whole or in part, provided there is a
 substantial basis for believing the source of the hear-
 say to be credible and for believing that there is
 factual basis for the information furnished.  Before
 ruling on a request for a warrant the judicial officer
 may examine under oath the affiant and any witnesses he
 may produce, provided that such proceeding shall be
 taken down by a court reporter or recording equipment
 and made part of the affidavit.

FN2.    One can argue from its wording that the rule allows one officer to
 convey information supplied by another officer as long as the information
 supplied by the other officer is not in an affidavit.  This construction is
 irrational.  If the rule allows one officer to state what another officer
 told him, it must allow one officer to transmit the affidavit of the other
 officer as long as the officer who appears before the judicial officer
 asserts that probable cause is present based on the information available to
 him, including the other affidavit.  In the latter case, the evidence
 supporting the finding of probable cause is at least as reliable as in the
 former case.

FN3.    In adapting the federal rule to our circumstances, we authorized the
 affidavit to be sworn to before "a judicial officer" (emphasis supplied),
 and this led to circumstances where the affiant swore before a different
 judicial officer than the one who issued the warrant.  See Reporter's Notes
 to 1977 Amendment to V.R.Cr.P. 41(c).  This Court concluded that we had
 intended that the affiant appear before the officer who issued the warrant
 and added the personal appearance requirement "to make clear the intent of
 the rule as originally promulgated."  Id.  Although the language is
 different, the 1977 amendment restored the substance of Vermont Criminal
 Rule 41(c) to that of the federal rule.