State v. Langlois

STATE_V_LANGLOIS.94-031; 164 Vt 173; 667 A.2d 46

[Filed 01-Sep-1995]

       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. 94-031


State of Vermont                                  Supreme Court

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

Brian D. Langlois                                 June Term, 1995


Gordon P. Black, Acting, J.

       William D. Wright, Bennington County State's Attorney, and David R.
  Fenster, Deputy State's Attorney, Bennington, for plaintiff-appellee

       Robert M. Paolini of Martin & Paolini, Barre, for defendant-appellant


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


       DOOLEY, J.   Following the entry of a conditional guilty plea,
  defendant Brian Langlois appeals the Bennington District Court denial of
  his motion to suppress evidence obtained in a search of his motor vehicle. 
  Defendant claims on appeal that (1) the trial court erroneously concluded
  that probable cause existed to search his vehicle without a warrant, and
  (2) defendant's consent to search a paper bag found in the vehicle was
  coerced by a misrepresentation of the police officer's power.  We need not
  address the last claim because we conclude that no probable cause existed
  to search the vehicle, and accordingly, reverse.

       On April 28, 1992, a Bennington police officer received a telephone
  call from a man who identified himself by name, but stated he was a
  stranger who would soon leave the area.  The police have never seen or
  heard from the informant since that date.  The caller told the officer that
  defendant was selling marijuana, and was currently "driving around" Main
  Street in Bennington in a 1989 grey, four-wheel-drive, GMC pick-up truck,
  and that the truck had fresh front-end damage.  He said that earlier that
  night he had seen a paper bag filled with marijuana

 

  behind the front seat of the truck.

       The officer ran a registration check on defendant and learned that he
  owned the type of truck the caller had described.  The officer had seen the
  truck recently and remembered noticing it had front-end damage.  Based on
  this information, the officer began patrolling Main Street, and when he saw
  the vehicle, he observed that no front license plate was visible.  In light
  of this fact and the tip from the caller, he stopped defendant's truck.

       The officer verified defendant's identity via his license and
  registration, and then requested that defendant step out of the vehicle. 
  After defendant exited the truck, the officer pushed the seat of the truck
  forward revealing a large paper bag.  The bag could not be seen with the
  seat in the upright position.  The officer asked defendant what was in the
  bag, and defendant responded by asking the officer if he had a warrant. 
  The officer informed defendant that he did not have a warrant, but that
  unless defendant consented to a search of the bag, the officer would seize
  the truck and then obtain a search warrant to search the truck.  Defendant
  consented to the search of the paper bag, and the officer discovered that
  it contained several individual baggies of a substance that appeared to be
  marijuana.

       Defendant was charged with possession of marijuana, 18 V.S.A. §
  4230(a)(2), and moved to suppress the bag and its contents.  Following an
  adverse ruling on the motion, he entered a guilty plea conditional on his
  right to appeal the denial of the motion to suppress.  He was sentenced to
  six months to three years in prison, all but sixty days suspended.  This
  sentence was stayed pending appeal.

       Defendant claims that the search of the vehicle which revealed the bag
  was unlawful under both the Fourth Amendment to the United States
  Constitution and Chapter I, Article 11 of the Vermont Constitution because
  the officer lacked both a warrant and probable cause to search.  Although
  the officer was justified in stopping defendant's vehicle because the front
  license plate was not visible, see State v. Crandall, ___ Vt ___, ___, 644 A.2d 320, 323 (1994) (stop can be made based on reasonable belief that
  suspect is engaged in criminal activity); 23

 

  V.S.A. § 511 (describing manner in which license plates must be
  displayed), the parties agree that the warrantless search of the vehicle
  must be based on probable cause.(FN1)  State v. Goyette, 156 Vt. 591, 594-95,
  594 A.2d 432, 434 (1991).  Probable cause exists if "there is a substantial
  basis for the police's belief that there was a fair probability of finding
  evidence of a crime in a particular place."   Goyette, 156 Vt. at 595, 594 A.2d  at 435.  Vermont uses a "totality of the circumstances" standard to
  evaluate whether the police have a substantial basis to believe that
  evidence of a crime will be found in a particular place.  Id.  Where the
  belief is based on information from an informant, at least in part, we
  consider the reliability of the informant, the basis of the informant's
  knowledge, independent police corroboration of the information provided,
  and other factors which may give rise to suspicion in determining whether
  probable cause for a warrantless car search exists. See id (describing
  various factors to consider in applying totality of circumstances test);
  see also Illinois v. Gates, 462 U.S. 213, 232 n.7, 237-38 (1983)
  (describing factors that support probable cause under a totality of
  circumstances test).

       The primary case evaluating the significance of an informant's tip in
  determining probable cause is Illinois v. Gates, 462 U.S. 213 (1983).(FN2)
  Prior to Gates, the United States Supreme Court had applied a 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) to the informant information
  requiring a showing that the informant was reliable and that the informant
  had a factual basis

 

  for the information provided.  See State v. Emmi, 160 Vt. 377, 380-81,
  628 A.2d 939, 941-42 (1993) (application of Aguilar and Spinelli test in
  warrant situations).

       Gates abandoned this test in favor of an examination of the totality
  of the circumstances. Gates, 462 U.S.  at 233.  The Court reasoned that a
  deficiency in one of the prongs of the Aguilar and Spinelli analysis could
  be compensated for by a strong showing as to the other, or by some other
  indicia of reliability.  Id.  The Court noted that strict adherence to the
  "two-pronged test" would effectively prevent the police from ever relying
  on an anonymous informant's tip because neither the informant's reliability
  nor his basis of knowledge could ever be conclusively established.  Id. at
  237.  The Court concluded that this type of formalistic approach is not
  necessary if the details of the informant's tip can be corroborated by
  independent police work.  Id. at 241-42.

       Gates dealt with a single anonymous letter that provided many details
  of future drug-trafficking actions to be taken by the defendant and his
  wife.  See id. at 225.  Their typical mode of operation was for the wife to
  drive to Florida from their home in Illinois, where she would leave the car
  stocked with drugs and fly home; the defendant would then fly to Florida
  and drive the car home.  The informant provided the police with a specific
  date upon which this activity would occur.  The Court concluded that
  independent police corroboration of much of this activity verified the
  accuracy of the informant's tip.  Id. at 245.  The Court reasoned that the
  level of detail provided suggested that the informant was someone who had
  access to reliable information about the couple's illicit activities.  Id.

       In State v. Goyette, we adopted the Gates analysis for evaluating
  warrantless searches under the Fourth Amendment.  156 Vt. at 595, 594 A.2d 
  at 434.(FN3)  Goyette is the only Vermont

 

  case to have directly considered whether an informant's tip
  establishes sufficient probable cause to conduct a warrantless car search. 
  In Goyette, this Court concluded that probable cause existed when a known
  and previously relied-upon informant told police that an out-of-state
  individual (defendant), staying with a named Vermonter, would be
  transporting cocaine into Vermont.  The police corroborated this
  information by observing an out-of-state vehicle parked outside the
  Vermonter's home.  In a second phone call, the informant notified the
  police that a substantial drug deal would occur the following day between
  the defendant and a suspected drug dealer living in Chester, Vermont, and
  they would be introduced by another individual who was known to the police
  from previous drug investigations.  The police observed the defendant,
  accompanied by the individual who was to do the introductions, arrive at
  the dealer's residence, stay for approximately two hours, and then depart. 
  The police followed the car for a few miles, and while they were pulling it
  over, they noticed defendant duck down as if to hide or retrieve something
  from under his seat.  The Court concluded that all of these facts taken in
  concert established probable cause for a warrantless search of the vehicle,
  in which cocaine was found under the passenger seat.  Id. at 596, 594 A.2d 
  at 435.

       The Goyette facts differ significantly from those in this case.  The
  informant here was unknown to the police, and the police had no means of
  ascertaining or establishing the reliability of his information.  Nothing
  established the basis for the information other than the conclusory claim
  that he had seen the bag.  Although, as Gates held, these traditional
  indications of reliability are not requirements, we see little to make up
  for their absence.

       Other than the claim that defendant had drugs, the information the
  informant provided was readily available to any member of the public who
  could observe defendant's vehicle.  There was nothing particularized or
  predictive about the information, except the unexceptionable fact that
  defendant was "presently driving around Main Street in Bennington" in his
  truck. The

 

  informant did not provide police with the type of information that
  could be independently corroborated, such as specific accounts of travel
  plans, routes to be taken, descriptions of accompanying passengers, or
  other such details.  Nor did the officer observe defendant engaged in any
  suspicious activity, and defendant did not make any unusual or furtive
  gestures while he was being pulled over.

       Our review of decisions from other jurisdictions supports a conclusion
  that the officer here did not have probable cause to conduct a warrantless
  search of the vehicle.  See United States v. Ornelas-Ledesma, 16 F.3d 714,
  718 (7th Cir. 1994) (unknown informant's uncorroborated tip cannot by
  itself furnish probable cause to search); State v. Miller, 397 S.E.2d 508, 509 (Ga. Ct. App. 1990) (no probable cause to search vehicle where
  anonymous caller identified it and its occupants and stated it was carrying
  cocaine from a named city to another named city); State v Phillips, 696 P.2d 346, 350 (Haw. 1985) (no probable cause to search where anonymous
  informant specifically described vehicle allegedly involved in criminal
  activity, but where police observed no such activity when they reached
  scene); Glass v. State, 681 S.W.2d 599, 601 (Tex. Crim. App. 1984)
  (anonymous telephone call "standing alone" will never provide probable
  cause to search automobile).

       It is noteworthy that the Supreme Court of New Hampshire has held that
  similar information provided by an informant, with similar corroboration,
  was insufficient for even an investigatory stop requiring only reasonable
  suspicion of criminal activity and not probable cause.  In State v.
  Kennison, 590 A.2d 1099, 1100 (N.H. 1991), the Court held that an
  investigative stop was not warranted based upon an anonymous informant's
  tip that he had seen marijuana in the trunk of defendant's blue Cadillac,
  and where the informant identified where defendant worked and at what time
  she would leave her place of employment.  The caller stated that defendant
  would drive home from work and would thereafter make deliveries of
  marijuana.

       The New Hampshire Court emphasized exactly the factors we find
  significant here: (1) an unknown informant has no "track record," and
  therefore lacks proof of reliability, id. at

 

  1101; (2) the basis of knowledge was "minimally shown" by a statement
  that the caller had seen drugs in the car without an explanation of how he
  could make such an observation, id.; (3) the factual information provided
  was "of a kind readily available to many people," id.; (4) the
  corroboration was of "mundane, innocent facts easily available to
  co-workers or friends" and not of any of the incriminating allegations,
  id.; (5) the police saw no suspicious or incriminating activity in their
  surveillance of defendant, id.; and (6) the tip did not contain "the wealth
  of intimate detail" necessary to make it self-verifying, id. at 1102.  See
  also Commonwealth v. Lyons, 564 N.E.2d 390, 393 (Mass. 1990) (no reasonable
  suspicion for investigatory stop where anonymous informant told police that
  two white men possessing narcotics would be headed north on particular
  highway in silver Hyundai bearing specifically identified Maine license
  plate number).(FN4)

       The only distinction between this case and many of the decided cases
  from other jurisdictions is that the caller here gave a name.  We find this
  to be a distinction without a difference, where the police cannot verify
  the name and make no attempt to do so.  There is nothing to indicate that
  the name was not fictitious.  Even if the name were accurate, and the
  caller risked some adverse consequences from providing inaccurate
  information, there is still no track record of reliability.  See Kennison,
  590 A.2d  at 1101.

       We conclude that the information provided by the informant, and the
  limited corroboration developed by the police, was insufficient to
  establish probable cause to search defendant's vehicle.  The bag, and the
  marijuana within it, discovered during the search must be excluded from
  evidence.

 

       Reversed.
                              FOR THE COURT:



                              _______________________________________
                              Associate Justice


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                                  Footnotes


FN1.  The marijuana was not in plain view and there was no claim by
  the State that a protective search was justified.  On the latter point, the
  police officer testified that he had "no reason to be concerned for [his]
  safety."

FN2.   Although Gates considered whether an informant's tip provided
  sufficient probable cause to obtain a warrant, as opposed to conducting a
  warrantless search, its analysis solely regarding the legitimacy of an
  informant's tip, is equally applicable here.  Indeed, we noted in State v.
  Goyette, that the "totality of the circumstances" standard announced in
  Gates is "generally accepted as the probable cause benchmark in warrantless
  situations."  156 Vt. 591, 595 n.2, 594 A.2d 432, 434 n.2 (1991) (citing 1
  W. LaFave, Search and Seizure § 3.1(c), at 551 (2d ed. 1987)).

FN3.  We have retained the two-prong test in determining whether a
  search warrant is supported by probable cause because that test is required
  by V.R.Cr.P. 41(c).  See State v. Emmi, 160 Vt. 377, 381, 628 A.2d 939,
  941-42 (1993); State v. Ballou, 148 Vt. 427, 434, 535 A.2d 1280, 1284
  (1987).  We have never determined how probable cause must be shown for
  warrantless searches under Article 11.  In view of our disposition, we do
  not need to address that issue here. We assume that the Gates analysis
  applies under Article 11.

FN4.  Massachusetts has rejected the "totality of the circumstances"
  standard for determining either probable cause or reasonable suspicion. 
  However, the court observed in a footnote that even under the flexible
  "totality of the circumstances" standard, these facts would not necessarily
  establish reasonable suspicion.  See Lyons, 564 N.E.2d  at 393 n.5. Like the
  facts in this case, no future behavior was verified, and the only facts
  corroborated were descriptive obvious details. Id.  The information did not
  reveal any "inside information" or any details indicating special
  familiarity.  Id.