State v. Defranceaux

State v. Defranceaux (98-210); 170 Vt. 561; 743 A.2d 1074

[Filed 28-Oct-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-210

                               JUNE TERM, 1999


State of Vermont                       }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	District Court of Vermont,
	                               }	Unit No. 3, Caledonia Circuit
Carter Defranceaux	               }
	                               }	DOCKET NO. 148-2-96 Cacr


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


       Defendant appeals from a conviction for possession of marijuana,
  pursuant to a conditional  plea under which he may appeal the denial of a
  motion to suppress certain evidence gathered  pursuant to a search warrant. 
  We affirm.

       The facts are not in dispute.  On June 12, 1995, an employee of Mail
  Boxes, Etc., in  Tucson, Arizona, contacted the local police narcotics
  squad to investigate two suspicious  packages to be delivered to Vermont. 
  The packages were opened pursuant to a policy of Mail  Boxes, Etc.  A
  Tucson officer responded and took the packages.  Believing them to contain 
  contraband, the officer contacted police in Vermont and eventually
  communicated with the  Vermont State Police.  The officer told the trooper
  that each package contained a white, five-gallon, plastic bucket in which
  there was a large bundle of marijuana wrapped in duct tape, and  that the
  total weight of the marijuana was about twenty pounds. The officer also
  indicated that  the return address was fictitious and that the listed
  sender was "T-SHIRT DESIGN AND  COLOR," a business that could not be
  located by Tucson directory assistance.  The listed  contents of the
  package were t-shirts and dye.  The officer took a sample of the marijuana
  and  photographed the packages before sending them to Vermont.


       The addressee of the packages was Jason Marshall of RD#3, Box 83A, St.
  Johnsbury,  Vermont.  The trooper investigated but could not find a mailbox
  identified as 83A.  The  packages arrived at the state police barracks on
  June 14, and troopers, posing as UPS carriers,  attempted a delivery on
  June 15.  By that time, a formerly unmarked mailbox was marked as  Box 83A,
  and the troopers delivered to the house corresponding to the mailbox.  When
  the  troopers knocked, defendant answered and indicated he would sign for
  Jason Marshall, who was  not there at the time.  The troopers noted that
  defendant was "very nervous" but appeared glad to  receive the packages.

 

       The troopers left a surveillance team on the road from the house and
  drove away.  Shortly  thereafter, the surveillance team indicated that a
  truck was leaving the house.  Troopers stopped  the truck, which contained
  defendant and one other person, and returned with it to the house.  
  Meanwhile, the delivery troopers returned to the house and entered it,
  determining that the  packages were within the house, unopened.

       Based on the above information, the investigating trooper obtained a
  search warrant for the  house and the truck.  Marijuana, in addition to
  that shipped, was found in the house and in the  truck.  Defendant moved to
  suppress the fruits of the search on four main theories: (1) the  affidavit
  in support of the warrant application was insufficient to establish
  probable cause because  it did not show how the substance in the package
  was identified as marijuana; (2) the affidavit  was based on information
  gathered in the initial, unwarranted search of the house by the delivery 
  troopers, and that search was unlawful; (3) the description of items to be
  searched for was over-broad; and (4) the search warrant did not authorize
  a search for the marijuana delivered to the  house or for other contraband. 
  The district court rejected each of these contentions, and  defendant
  renews them on appeal.

       The standard for probable cause for a search is whether "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. Platt, 154 Vt. 179, 185, 574 A.2d 789, 793 (1990).   Affidavits in
  support of probable cause "must be viewed in a common sense manner and not
  be  subject to hyper-technical scrutiny."  State v. Ballou, 148 Vt. 427,
  434, 535 A.2d 1280, 1284  (1987).  In determining whether probable cause is
  present, we must examine the totality of the  circumstances.  See State v.
  Emmi, 160 Vt. 377, 381, 628 A.2d 939, 942 (1993).  The  magistrate's
  determination of probable cause is entitled to great deference, and we
  review to  ensure that the magistrate had a substantial basis for
  concluding that probable cause existed.  See  State v. Maguire, 146 Vt. 49,
  53, 498 A.2d 1028, 1030-31 (1985).

       Defendant's first challenge focuses exclusively on the identification
  in Arizona of the  content of the packages as marijuana.  Defendant argues
  that the affidavit is deficient because it  fails to specify who identified
  the contents as marijuana and how that determination was made.   Viewing
  the affidavit in a common sense manner, as we must, we think it fairly
  conveys that the  identification was made by the officer of the Tucson
  Narcotics Trafficking Interdiction Squad.   We agree with defendant,
  however, that although we can rely on the "experience and training of  an
  officer" to make such an identification, State v. Pierce, 463 A.2d 977, 981
  (N.J. Super. Ct.  1983), the affidavit is deficient in failing to specify
  what skill, experience or training the Tucson  officer possessed.  See
  State v. Matlock, 616 P.2d 684, 687 (Wash. Ct. App. 1980).  If the 
  identification were the only evidence to support the probable cause
  determination, we would  have to reverse the denial of the motion to
  suppress.

       We must, however, rely on the totality of the circumstances to
  determine whether there  was substantial evidence.  See Emmi, 160 Vt. at
  381, 628 A.2d  at 942.  Here, there is additional  evidence to support the
  probable cause determination.  The packages came from a false address  and
  an apparently false sender.  The sender misstated the contents. 
  Defendant's 

 

  mailbox was marked for delivery only on the day of delivery.  The person to
  whom the packages  was addressed was not at the delivery address.  Although
  defendant accepted the packages, he  later said the addressee had not been
  present at the address for five months.  Defendant was  "very nervous"
  while accepting the packages.  We conclude that all of the information in
  the  affidavit was sufficient for the magistrate to determine that the
  crime of possession of marijuana  had been committed and evidence of that
  crime was in the house.

       Second, defendant challenges the search warrant because the supporting
  affidavit included  information obtained during the warrantless search of
  the house.  Defendant argues that because  the warrantless search was
  unlawful, the affidavit is defective and cannot support a finding of 
  probable cause.  

       The only information derived from the warrantless search of the house
  was that the  delivered marijuana boxes were stacked on the floor unopened
  in the living room area.   Assuming this search was unlawful, it does not
  necessarily invalidate the search warrant.  Where  a search warrant
  affidavit contains information from illegally-obtained evidence, as well as 
  information obtained from independent and lawful sources, a valid search
  warrant may issue if  the lawfully-obtained information is sufficient to
  establish probable cause.  See State v. Morris,  165 Vt. 111, 128-29, 680 A.2d 90, 102 (1996).  In this case, the information obtained from the 
  warrantless search added little, if anything, to the other information in
  the affidavit, especially  because the warrant covered both the house and
  the car, and the delivered contraband had to be  in one of those places. 
  We conclude that even if the warrantless house search was unlawful, the 
  affidavit established probable cause without the fruits of that search, and
  the warrant was  therefore valid.

       Third, defendant argues that the warrant was over-broad because it
  authorized a general  search for items unconnected to the contraband.  The
  affidavit indicated that the quantity of  marijuana involved was worth over
  $40,000 at street value and was an amount associated with  drug sales, not
  casual use.  It further indicated that based on the trooper-affiant's
  experience as  an investigator of complex crimes, drug sellers would have
  records of the sales operation, cash  or negotiable instruments, names and
  addresses of purchasers, photographs, and expensive  possessions and would
  secrete such property in their residence.  On this basis, the warrant 
  broadly authorized a search for the above types of property.  The warrant
  had to identify "the  property or other object of the search and naming or
  describing the person or place to be  searched," V.R.Cr.P. 41(c), and this
  warrant met the requirements of the rule.  There must be a  sufficient
  nexus between the items to be seized and the alleged criminal behavior so
  that it is  shown that the evidence sought "will aid in a particular
  apprehension or conviction."  Warden v.  Hayden, 387 U.S. 294, 307 (1967). 
  In light of the affidavit in this case, the items specified in  the warrant
  met that standard, and the warrant was valid.

       Finally, defendant argues that the warrant did not authorize the
  officers to seize the  contraband that came from Arizona, or other
  contraband.  In fact, the warrant authorized the  officers to search for
  and seize the two shipping boxes addressed to Jason Marshall at the 
  delivery address.  As to other contraband, the officers could seize an
  article of incriminating 

 

  character that was in plain view in the course of their lawful search.  See
  Coolidge v. New  Hampshire, 403 U.S. 443, 465 (1971).  Defendant makes no
  claim that the additional marijuana  found in the search was not in plain
  view under Coolidge.  Thus, there was no error in failing to  suppress it.

       Affirmed.






	                               BY THE COURT:



	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
	                               John A. Dooley, Associate Justice

	                               _______________________________________
	                               James L. Morse, Associate Justice

                                       _______________________________________
	                               Denise R. Johnson, Associate Justice

	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice