State v. Blais

Annotate this Case
STATE_V_BLAIS.94-148; 163 Vt 642; 665 A.2d 569

[Filed 19-Jun-1995]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 94-148

                             MARCH TERM, 1995

State of Vermont                     }          APPEALED FROM:
     v.                              }          District Court of Vermont,
                                     }          Unit No. 1, Windsor Circuit
Jeffrey Blais                        }
                                     }          DOCKET NO. 805-9-93Wrcr

                    In the above-entitled cause, the Clerk will enter:

          The State brings this interlocutory appeal from a district
court judgment, which suppressed testimonial and physical evidence
acquired following defendant's warrantless arrest on the ground there was 
no probable cause for the arrest.  We affirm.

          The trial court made the following findings.  In a "fly-over,"
state police officers observed what they suspected was marijuana growing
in a thickly wooded area between a corn field and a campground.  Two
police officers went to the area, via a thirty-to-forty-foot path from
the campground, and found about eighty-five marijuana plants, in a
clearing, along with gardening tools and fertilizer.  One officer
followed another path out of the clearing to a brook, where he found a
hose. The officers left the plot, and one officer returned the next day
to indicate its location to two other officers.  They saw no one on
either day.  On the third day, the officers installed two ground sensors,
one located on the entrance path and the second located in the plot.  The
monitors did not work that day; they were too sensitive and alerted
frequently when it rained.

          On the fourth day, the officers experienced the same problems
with the monitors but then adjusted them for sensitivity.  After three
hours, they handed surveillance over to two other officers who hid behind
a knoll thirty-to-forty feet from the plot.  About one hour later, the
sensor on the path alerted and then the sensor in the plot alerted, and
continued to alert every five minutes.  One-half hour after the first
alert, defendant came down the path toward the officers and was arrested
at gunpoint.

          Defendant moved to suppress all evidence acquired following his
arrest on the ground that the police violated the Fourth Amendment to the
United States Constitution and Chapter 1,


Article 11 of the Vermont Constitution because they lacked probable cause
to arrest him.  The trial court held that there was no probable cause to
arrest defendant, and the State brings this interlocutory appeal.

          Defendant contends that we must give deference to the trial
court's determination that the law enforcement officials had no probable 
cause for his arrest.  He relies on State v. Maguire, in which we applied
this standard of review in considering the challenge to probable cause
for issuing a search warrant.  146 Vt. 49, 53, 498 A.2d 1028, 1030
(1985).  As we noted in Maguire, this deferential standard of review is
appropriate when a defendant is challenging a warrant because it furthers
the strong constitutional preference for warrants.  Id.  "[W]hen courts 
subject affidavits [in support of a warrant] to too strict scrutiny,
police may be encouraged to resort to warrantless searches, in hopes of
relying on consent or some other exception to the warrant requirement."  

          In this case, however, we are not reviewing the issuance of a
warrant.  In reviewing a determination on probable cause for a
warrantless arrest, we rely on the trial court's findings of fact unless 
clearly erroneous; review of the probable cause determination is,
however, de novo.  See United States v. Ingrao, 897 F.2d 860, 862 (7th
Cir. 1990); United States v. Carrillo, 902 F.2d 1405, 1412 (9th Cir.

          Defendant concedes that the officers had reasonable suspicion
to detain him temporarily to inquire into his activity, but maintains
that the evidence did not establish probable cause for arrest.  Probable
cause for a warrantless arrest requires the same evidence required for
issuance of a warrant under V.R.Cr.P. 4(b).  V.R.Cr.P. 3(a).  Rule 4(b)
provides that a judicial officer may issue a warrant upon finding "that 
there is probable cause to believe that an offense has been committed and
that the defendant has committed it."  A finding of probable cause must 
be based on substantial evidence.  V.R.Cr.P. 4(b); see also State v.
Towne, 158 Vt. 607, 615, 615 A.2d 484, 489 (1992) (holding that court
must examine totality of circumstances to determine whether substantial
evidence supports issuance of search warrant).

          Thus, law enforcement officers may arrest a person without a
warrant where they have probable cause to believe that the suspect has
committed or is committing a felony.  State v. Stanislaw, 153 Vt. 517,
527, 573 A.2d 286, 292 (1990); see also V.R.Cr.P. 3(a) (listing
circumstances under which officers may arrest without warrant). "The 
concept of probable cause is a practical, nontechnical one that we
evaluate in a common sense manner."  Stanislaw, 153 Vt. at 527, 573 A.2d  
at 292.  In this case, the officers knew that a felony was being
committed because they had seen a plot containing about eighty-five
manicured marijuana plants.  The issue is whether the arresting officers
had knowledge of sufficient facts to support a reasonably cautious belief
that defendant had committed the felony.  See id.

          "The mere presence at the location of criminal activity cannot, 
in and of itself, constitute probable cause for arrest."  United States. 
v. Villegas, 700 F. Supp. 94, 99 (N.D.N.Y. 1988); accord Ingrao, 897 F.2d 
at 863 (physical proximity to suspected crime, without other indicia of
involvement, is insufficient to support finding of probable cause); see
also People v. Marrero,


544 N.Y.S.2d 198, 200 (N.Y. App. Div. 1989) (detectives had at most
reasonable suspicion to detain and question defendant where he had been
seen carrying television on street in front of apartment building on day
television set had been stolen from one of the apartments).  The State
argues that defendant's presence alone was sufficient to establish 
probable cause in this case because of the remoteness of the plot, the
difficulty in locating the access path, the absence of other people
during the periods of observation, and the activation of the ground
sensors in the plot during one-half hour of monitoring.  We disagree.

          In Vega v. State, 762 S.W.2d 1 (Ark. Ct. App. 1988), law
enforcement officials discovered stolen articles under an abandoned
building and staked out the building hoping that the burglars would
return to retrieve the stolen property.  At about 9:30 that evening, a
car stopped in front of the abandoned building.  The passenger got out of
the car, looked in both directions, and then walked toward the building.
In the darkness, the officers were unable to see the suspect enter the
building.  When the suspect reemerged from the darkness, the officers
arrested him.  When the car returned, the driver was arrested as well.

          The Vega court held that the record was insufficient to show
probable cause to make the arrest.  Id. at 3.  As the court noted, "the 
officers had no reason to arrest the [defendant] other than his presence
near an abandoned building in which stolen goods had earlier been
discovered."  Id. at 2.  The officers arrested the two men merely because 
they were suspected of a crime.  Although the defendant's presence at an 
abandoned building where stolen goods were hidden may have supported a
brief detention, it was insufficient to establish probable cause for
arrest.  Id.  But see United States v. Raborn, 872 F.2d 589, 594 (5th
Cir. 1989) (upholding probable cause determination under clearly
erroneous standard where defendant visited isolated farmhouse, where
agents had probable cause to believe that controlled substances were
manufactured, and where no traffic had been observed for several weeks).

          In Ingrao, law enforcement agents observed the defendant,
carrying a black bag, emerging from a gangway that was shared by two
houses.  897 F.2d  at 863.  One of the houses was occupied by a known
narcotics trafficker; however, officers were unable to see the exit from
their stake-out position.  The defendant made furtive gestures before
crossing the street to his car.  The officers followed the defendant and
observed him make stops at two social clubs and then arrested him.  The
court held that these observations were insufficient as a matter of law
to establish probable cause for arrest.  Id. at 865.  The Ingrao court
noted that "none of the agents observed [the defendant] engage in any 
illegal activity and none recognized him as anyone they knew anything
about."  Id. at 864.  Thus, the defendant could arguably have been "an
innocent acquaintance of [the known trafficker], or a resident or visitor
of another house, or a salesman, or someone merely walking down the
street."  Id.  The officers' suspicions may have been sufficient to 
support a Terry stop; however, they were insufficient to support the
intrusion of a full-blown arrest.  Id. at 865-66.

          The instant case is analogous to Vega and Ingrao.  At the time
of the arrest, the officers knew that marijuana was being cultivated in a
visually screened area that was connected to a busy campground via a path
through heavy vegetation.  The officers heard the ground sensors


activate, indicating someone's presence in the marijuana plot.  The 
ground sensors activated every five minutes for about one-half hour and
then defendant exited the path toward the campground.  As in Vega and
Ingrao, however, the officers were unable to see the plot from their
stake-out, and  none of the officers recognized defendant or observed him
engage in illegal activity.  The officers never even saw defendant until
they arrested him.

          The State contends that defendant seemingly had no reason to be
walking through the heavy vegetation on a path leading to the plot.
While defendant's presence may have raised suspicions sufficient to allow 
a brief detention to inquire of his activities, "mere suspicion is not
enough" to show probable cause for a warrantless arrest.  Ingrao, 897 F.2d  at 862; cf. State v. Cremer, 563 So. 2d 817, 819 (Fla. Dist. Ct.
App. 1990) (presence at isolated scene coupled with implausible story
supports probable cause for arrest); Scretchen v. State, 385 S.E.2d 115,
117 (Ga. Ct. App. 1989) (lack of reasonable explanation for suspicious
activity may elevate reasonable suspicion to probable cause); In re A.P.,
617 A.2d 764, 769-71 (Pa. Super. Ct. 1992) (proximity to crime coupled
with other factors such as flight or unsubstantiated explanation for
presence may support probable cause for arrest).  The officers did not
observe defendant in the plot, nor did they investigate the area for
other people until after they had arrested defendant.  Cf. People v.
Rosa, 589 N.Y.S.2d 413, 414 (N.Y. App. Div. 1992) (upholding probable
cause determination where, prior to arrest, one officer detained
defendant at apartment entrance while other checked apartment and found
it ransacked and no one there).

          The only information specific to defendant was that he was
walking on the path coming from the plot following some activity that
alerted the sensors in the plot.  Walking down a path through the woods
next to a busy campground is, however, completely consistent with
innocent behavior.  See Ingrao, 897 F.2d  at 863-65 (no probable cause
where suspect's action is consistent with innocent behavior); United 
States v. Robertson, 833 F.2d 777, 782 (9th Cir. 1987) (no probable cause
where presence on scene of criminal activity was consistent with behavior
of innocent visitor).  A path leading from a busy campground several feet
into the vegetation is not so remote as to raise suspicions to a level
necessary for probable cause.


          Morse, J. dissenting.     I would reverse and remand.  There
was probable cause to believe that it was defendant cultivating the
marijuana plants.  The Court has applied too high a standard to these

          There is no question based on the electronic monitoring that
someone was in the marijuana patch for one-half hour.  Defendant's basic 
argument, and the one adopted by the Court, is that someone else might
have been on the path and tended the plants.  The Court concludes that
the State did not prove that defendant was the one.  The Court suggests
that defendant may have just stumbled upon a marijuana patch while
meandering through the dense forest.


          This case is not one of mere physical proximity to a crime.
The plot was remote.  The path was not well-travelled, at least not
during the three days of police observation.  During that time, no one
but defendant was observed in the area.  The access path was difficult to
locate, being more like a tunnel through the underbrush than a path.
Someone triggered not only the monitor on the access path but also a
monitor in the marijuana plot.  These sensors signaled the officers of
someone's presence for a half hour's time.  Immediately upon the heels of
these signals, defendant exited the plot and walked down the path toward
the officers.  As the trial court stated, "when the Defendant exited the 
plot from one of the tunnels through the vegetation, the [officers] . . .
arrested the Defendant."  Looking at the facts in a nontechnical 
common-sense manner, the officers had enough facts to support a
reasonably cautious belief that it was defendant who was cultivating the
marijuana plants.  What else would defendant be doing for half an hour in
a patch containing eighty-five manicured marijuana plants?

                            BY THE COURT:

                                     Frederic W. Allen, Chief Justice

_______________________________      _______________________________________
James L. Morse,                      Ernest W. Gibson III, Associate Justice
Associate Justice

                                     John A. Dooley, Associate Justice

                                     Denise R. Johnson, Associate Justice

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