State v. Demers

State v. Demers  (96-452); 167 Vt. 349; 707 A.2d 276

[Filed 26-Dec-1997]

       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. 96-452


State of Vermont                             Supreme Court

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

Michael J. Demers                            June Term, 1997


Walter M. Morris, Jr., J.

       Robert Butterfield, Caledonia County Deputy State's Attorney, St.
  Johnsbury, for Plaintiff-Appellee.

       Robert P. Keiner of Keiner & Dumont, P.C., Middlebury, for
  Defendant-Appellant.


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


       AMESTOY, C.J.   Defendant appeals the Caledonia District Court's
  denial of his motion to suppress evidence of marijuana found when officers
  searched a freezer in his home pursuant to a warrant issued on suspicion
  that defendant had illegally shot a deer.  Defendant contends there was
  insufficient probable cause to issue the deer meat warrant because (1) the
  game warden's affidavit did not contain sufficient information to find
  probable cause, (2) the affidavit contained factual inaccuracies and
  omissions that misled the judge, and (3) the six-month time delay from the
  alleged deer jacking to issuance of the search warrant made the affidavit's
  information too stale to support probable cause.  We affirm.

       On the evening of November 15, 1994, in the town of Hardwick, officers
  with the Vermont Fish and Wildlife Department received a report of weapons
  fired in an area known for illegal deer hunting.  Approximately twenty
  minutes after the report, in the immediate vicinity of the suspected
  shooting, a warden observed defendant's car being driven without headlights
  illuminated.  The warden stopped the car, spoke with defendant, and
  observed a fresh

 

  semicircular cut above defendant's eye, which the warden believed came from
  the scope of a recoiling gun.  Defendant, a resident of the area, explained
  that he and his two passengers were driving without headlights because they
  believed suspicious activity was taking place in the vicinity.  He
  explained that the cut above his eye was from clearing bushes.  The warden
  requested and received defendant's permission to search the vehicle. 
  Although he did not find a deer carcass or weapons in defendant's vehicle,
  the warden found in the trunk fresh deer blood and hair, samples of which
  he took for DNA testing.

       The next day, in searching the field where the suspected shooting had
  occurred, a game warden discovered the distinct marks of a deer dragged
  from the field to the road.  The warden observed tire tracks at the end of
  the drag marks.  Taking samples of deer blood and hair from the marks, the
  warden then proceeded to defendant's home, where he discovered and took
  similar samples of marks from a deer dragged across defendant's front yard. 
  The warden observed that the tire marks on the road were similar to the
  pattern on defendant's car tires.

       Approximately four weeks after the suspected deer jacking, a game
  warden sent the deer hair and blood samples to an out-of-state wildlife
  forensics laboratory for DNA analysis.  The warden testified later that the
  delay in sending out the samples was attributable to the high volume of
  activity surrounding hunting season in Vermont.

       Test results from the forensics laboratory came back on May 8, 1995,
  and indicated that the same deer had been the source of the samples taken
  at the scene of the alleged deer jacking and those taken from drag marks in
  defendant's yard.  The results showed, however, that the deer blood and
  hair found in defendant's car trunk had come from a different deer.

       The game warden then prepared an affidavit to support a warrant to
  search defendant's home for evidence of the illegally-taken deer.  The
  judge issued the warrant on May 18, 1995, six months after the suspected
  deer jacking.

       In the course of searching defendant's home on May 21, 1995, wardens
  discovered marijuana in defendant's home freezer.  Pursuant to a second
  search warrant based on that discovery, police officers discovered
  substantial quantities of marijuana in a trailer located on

 

  defendant's property.  After the district court denied defendant's motion
  to suppress the marijuana evidence found as a result of the searches,
  defendant entered a conditional plea of nolo contendere to felony charges
  of marijuana possession and cultivation.

       Defendant's central argument on appeal is that the district court
  erred in not suppressing the marijuana evidence found pursuant to the May
  18, 1995 deer meat search warrant and subsequent searches.  Defendant
  advances three principal reasons why probable cause to issue the search
  warrant did not exist: (1) the warden's affidavit supporting the search
  warrant did not allege sufficient facts to find probable cause that
  defendant had illegally shot a deer; (2) even if the affidavit set forth
  sufficient information, it contained false information and omissions that
  misled the issuing judge to find probable cause; and (3) the six-month time
  lapse between the alleged deer jacking and the warrant's issuance made the
  information supporting the warrant stale.

       A search warrant may be issued only upon a finding by a judicial
  officer of probable cause that a crime was committed and that evidence of
  the crime will be found at the place to be searched.  V.R.Cr.P. 41(c).  In
  determining whether probable cause to issue the warrant exists, the "key
  inquiry is `whether the information provided in the affidavit reveals
  circumstances from which a person of reasonable caution would conclude that
  a crime has been committed and that evidence of the crime will be found in
  the place to be searched.'"  State v. Cooper, 163 Vt. 44, 51, 652 A.2d 995,
  999 (1994) (quoting State v. Platt, 154 Vt. 179, 185, 574 A.2d 789, 793
  (1990)).  We will give great deference to a judicial officer's
  determination of probable cause, and not undertake "hypertechnical
  scrutiny" of supporting affidavits.  State v. Ballou, 148 Vt. 427, 434, 535 A.2d 1280, 1284 (1987).

       We do not agree with defendant's contention that the affidavit on its
  face did not support a finding of probable cause that defendant committed a
  crime.  The affidavit indicated that defendant was observed driving at
  night with no headlights in the immediate vicinity of where a gun shot had
  recently been heard, and that he had a fresh cut, apparently from a rifle
  scope, above his eye.  A game warden found evidence of a killed deer in the
  field where the shots were

 

  heard, but found no evidence that the deer had been field dressed, a
  scenario described by the warden as consistent with an illegally-taken
  deer.  DNA tests established a match between the deer killed in the field
  and the one dragged across defendant's yard within a day of the suspected
  deer jacking.  We conclude that a common sense reading of the affidavit
  supports a finding of probable cause that defendant had illegally shot a
  deer.

       Defendant next argues that, even if the affidavit supports a finding
  of probable cause, the game warden omitted exculpatory information and
  provided erroneous information in his affidavit.  As a result, according to
  defendant, the court received a distorted view of the facts and improperly
  found probable cause.  Defendant contends that the warden omitted several
  key facts from the affidavit: (1) that samples of deer blood and hair taken
  from defendant's car trunk did not match samples taken from the field and
  from defendant's yard, (2) that two other men were in the car with
  defendant when he was stopped by the warden, (3) that the warden found no
  firearms or flashlights in defendant's car, and (4) that defendant had
  supplied explanations for his driving without headlights and for the cut
  over his eye.  Defendant also asserts that the warden falsely stated in the
  affidavit that Vermont Fish and Wildlife records did not reveal defendant's
  report of a legally taken deer after November 15, 1994.

       In order to challenge a probable cause finding on grounds that the
  supporting affidavit contains false information or omissions, defendant
  must establish by a preponderance of the evidence that the government agent
  who produced the affidavit made the false statements or omissions
  intentionally, knowingly, or with reckless disregard for the truth.  United
  States v. Mankani, 738 F.2d 538, 545 (2d Cir. 1984); Franks v. Delaware,
  438 U.S. 154, 155-56 (1978). If defendant satisfies this initial burden,
  the reviewing court, in order to determine whether probable cause was
  established, will consider the supporting affidavit as though the omitted
  information had been supplied and as though accurate, rather than
  inaccurate, information had been included.  See Mankani, 738 F.2d  at 545;
  Franks, 438 U.S.  at 156.  Reviewing issuance of the May 18, 1995 search
  warrant, the Caledonia District Court heard argument and testimony about
  the warden's preparation of the affidavit.  The court found that, while the
  warden had

 

  been negligent in his preparation of the affidavit, he had not acted with
  any intent to deceive or with reckless disregard for the truth.  See United
  States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984) (inaccurate facts or
  omissions in supporting affidavit, if made negligently, do not satisfy
  Franks requirement of intentional or reckless behavior).  We find nothing
  in defendant's argument on appeal to persuade us that the district court
  was clearly erroneous in its finding, and accordingly, we will not disturb
  its ruling.

       Moreover, we agree with the district court that the omitted and
  purportedly erroneous information in the affidavit did not influence the
  finding of probable cause.  First, the fact that samples from defendant's
  car did not match those from the field and from defendant's driveway was
  not relevant to probable cause.  The central fact supporting probable cause
  was the match between samples from the field and defendant's driveway, and
  the fact that a different deer had been in defendant's car did not alter
  the conclusion reasonably drawn from the evidence. Similarly, the existence
  of two other men in defendant's car and the absence of weapons and
  flashlights in the car would not have bolstered a finding of probable
  cause, but neither would those facts have undermined the other evidence
  supporting probable cause.  Inclusion of defendant's explanation for the
  cut above his eye would have similarly added detail to the report, but
  would have been of little import in the probable cause calculus.  Lastly,
  even if the affidavit had indicated that defendant reported a legally taken
  deer on November 28, 1994, the suspicion that defendant illegally shot a
  different deer on November 15 would still have been entirely reasonable. 
  See State v. Breest, 367 A.2d 1320, 1329 (N.H. 1976) (mere possibility that
  undisclosed information might have helped defendant did not create
  requirement that it be disclosed in affidavit for search warrant).

       Defendant next argues that the trial court erred in finding probable
  cause because the information in the affidavit was stale.  He contends that
  a person of reasonable caution would not have concluded that the contraband
  deer meat was likely to have been found in defendant's home six months
  after the alleged illegal taking of the deer.

 

       A valid search warrant must be based upon probable cause that items
  sought will actually be at the place sought to be searched at the time of
  the search.  See Sgro v. United States, 287 U.S. 206, 210 (1932).  Clearly,
  that probability can be lessened by the passage of time.  See State v.
  Driscoll, 137 Vt. 89, 97, 400 A.2d 971, 976 (1979).  Determining the
  timeliness of information, however, is not accomplished by merely counting
  the days that have elapsed between the facts relied on and the issuance of
  the warrant.  See State v. Towne, 158 Vt. 607, 615, 615 A.2d 484, 488-89
  (1992) (totality of circumstances must be examined to determine if probable
  cause exists to issue warrant); State v. Maguire, 146 Vt. 49, 55, 498 A.2d 1028, 1031-32 (1985) (same); United States v. Wagner, 989 F.2d 69, 75 (2d
  Cir. 1993) (no bright line test exists to determine staleness); Sgro, 287 U.S.  at 210-11 (whether information is too stale to support finding of
  probable cause is determined by circumstances of each case).

       Whether information is too stale to establish probable cause depends
  on an assessment of the totality of the circumstances, with consideration
  given to the nature of the criminal activity, the duration of that
  activity, the nature of the property to be seized, and the nature of the
  location to be searched.  See United States v. Snow, 919 F.2d 1458, 1460
  (10th Cir. 1990) (timeliness depends on nature of criminal activity, length
  of activity, and nature of property to be seized); United States v. Dozier,
  844 F.2d 701, 707 (9th Cir. 1988) (mere passage of substantial amount of
  time is not controlling); Andresen v. State, 331 A.2d 78, 106 (Md. Ct. App.
  1975) (considerations for timeliness of search include character of crime,
  criminal, thing to be seized, and place to be searched).

       In this case, the totality of the circumstances supports the
  reasonableness of the court's conclusion that some of the contraband deer
  meat would likely be found at defendant's home when the warrant issued. 
  First, the affidavit contained credible representations by an experienced
  game warden that illegally taken deer are usually transported to a
  residence, processed, stored in a home freezer, and consumed over a period
  of six to twelve months.  See United States v. Marriott, 638 F. Supp. 333,
  336 (N.D. Ill. 1986), aff'd, 826 F.2d 1067 (7th Cir. 1987)
  (thirteen-month-old invoice not stale information where officer said that
  in his

 

  personal experience items in invoice would remain at person's residence for
  long period of time).  Second, common sense bolsters the court's finding. 
  Daily life frequently involves freezing quantities of perishable food too
  abundant for consumption within a short time-frame. Once frozen, food can
  remain usable for months and even years into the future.  See Langle v.
  Bingham, 447 F. Supp. 934, 937 (D. Vt. 1978) (game wardens seized sixty
  pounds of frozen deer meat; defendant intended to consume meat over ensuing
  months).  Also, the likelihood that evidence is not destroyed over the
  passage of time is further strengthened where defendant exercises control
  over the place to be searched.  See Towne, 158 Vt. at 616, 615 A.2d  at 489
  (presence of evidence sought is more likely if place to be searched "is one
  over which the defendant exercises control").  Unlike, for example, illegal
  weapons or illegal drugs, which are incriminating in and of themselves,
  deer meat is not incriminating per se.  Where the evidence sought is
  innocuous, the passage of time does not diminish the likelihood that it
  will be found at a given location as much as it would if the items sought
  were incriminating.(FN1)  See State v. Carbone, 374 A.2d 215, 221 (Conn.
  1977) (where item sought is innocuous, probable cause not reduced as much
  by passage of time); United States v. Baker, 888 F. Supp. 1521, 1527 (D.
  Haw. 1995) (eighteen month-old information about clothing to be searched
  for not stale because clothing itself not incriminating).

 

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Chief Justice


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                                  Footnotes



FN1.  Defendant argues that it was unreasonable for the trial court to
  conclude that the incriminating evidence would be at defendant's home,
  because defendant had known for six months that he was under suspicion for
  illegally taking a deer.  This amounts to a claim that a search warrant can
  be invalidated by asserting that no reasonable criminal would leave
  incriminating evidence to be seized, once he knew he was suspected of a
  crime.  While such a proposition may be consistent with logic, it is
  inconsistent with experience and without legal support.  Moreover, the most
  plausible explanation of why a risk in retaining the meat of an illegally
  seized deer was not foreseen may be in defendant's succinct response to the
  game warden's warning that DNA testing could be done on deer meat: "That's
  a bunch of crap, too."