State v. Melchior
Annotate this Case
State v. Melchior (2000-192); 172 Vt. 248; 775 A.2d 901
[Filed 11-May-2001]
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. 2000-192
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Addison Circuit
Lois Melchior November Term, 2000
Dean B. Pineles, J.
John T. Quinn, Addison County State's Attorney, Middlebury, for
Plaintiff-Appellee.
Benjamin H. Deppman and Ebenezer Punderson of Deppman & Foley, P.C.,
Middlebury, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
MORSE, J. Defendant Lois Melchior appeals the judgment of the
Addison District Court denying her motion to suppress evidence procured
pursuant to a warrant which was issued based in part on observations made
by police from a helicopter flying over her property. Melchior argues that
the affidavit submitted in support of the warrant application was
insufficient to support a finding of probable cause once portions of it
were excised as was done by the trial court. We affirm.
On September 9, 1999, police officers Don Sweet and Chris Campbell
flew in a helicopter searching for marijuana cultivation as part of the
Marijuana Eradication Team (MERT) program. National Guardsman James
Valley was piloting the helicopter and was accompanied by another
Guardsman. As part of the MERT program, officers perform flyovers of
particular areas of the state in an effort to detect marijuana growth. If
officers detect marijuana growth, they engage in eradication efforts which
include visiting sites on the ground and pulling plants. There may be
further follow-up, including pursuing charges against individuals that can
be linked to the marijuana sites.
James Valley flew the officers over the area of Melchior's property
because he thought he had observed marijuana growth there as he was on his
way to pick up the officers at the Middlebury Airport. According to the
officers, the aircraft was over the property for between one and five
minutes at a height of roughly 525 to 650 feet. Following their
observations, they returned to the Middlebury Airport to follow up with
eradication efforts, including paying a visit to Melchior's property.
The group pulled onto a neighboring property in order to observe the
Melchior property. The entrance to the access road, however, was marked
with a sign indicating the land was posted and forbidding trespassing for
any reason. After observing the same marijuana plants from the ground,
the officers knocked on the doors of the residences located on the Melchior
property, but received no response. Trooper Campbell then applied for and
was granted a warrant to search the property. Melchior was subsequently
charged with possession and cultivation of marijuana.
Melchior moved to suppress the evidence on a number of theories.
Ultimately, the trial court denied the motion, determining that the
information acquired in the course of the aerial observation contained in
the warrant application was sufficient alone to support a finding of
probable cause. In so doing, the court disregarded the additional
information in the affidavit regarding Trooper
Campbell's observations from the ground. After entering a conditional plea
of guilty, Melchior appealed to this Court.
The State does not contest the trial court's limited consideration of
the information in the warrant application, namely that garnered from
Trooper Campbell's aerial observations. We are therefore presented with
the simple question of the whether the statements in Trooper Campbell's
affidavit regarding his training and experience, taken in conjunction with
his statements regarding his observations of the Melchior property from
the air, support a determination of probable cause. Specifically, he
states in his affidavit with regard to his aerial observations:
On 09-09-99 I was engaged in a MERT flyover in Addison County. . .
. The purpose of this flight was the detection of Marijuana
plants. In the area of Vt. Rt. 116 in the town of Bristol north
of the Middlebury town line I observed a stand of plants
consistent in color, shape and texture with Marijuana plants.
Upon closer examination from the air it was determined that the
plants were situated within a vegetable garden on the property of
what was later identified as the [Lois Melchior] property.
(Emphasis added.)
Melchior argues that the statement that Trooper Campbell observed
plants "consistent in color, shape and texture" with marijuana plants is
insufficient and that, absent a statement that Trooper Campbell
affirmatively believed the plants to be marijuana, the trial court could
not have concluded that the affidavit supported a finding of probable
cause. (FN1) We have cautioned against hypertechnical scrutiny of the
language in an affidavit, however, and have instead encouraged a
common sense reading when making determinations of probable cause. State
v. Demers, 167 Vt. 349, 353, 707 A.2d 276, 278 (1997).
Furthermore, when considering statements in an affidavit made in
support of a warrant application, the question is not whether the officer
making out the affidavit subjectively inferred from the facts included the
presence of criminal activity. Rather, the question is whether a
magistrate objectively may infer from the facts in the affidavit that "a
crime has been committed and that evidence of the crime will be found in
the place to be searched." State v. Zele, 168 Vt. 154, 157, 716 A.2d 833,
835-36 (1998). Courts have in fact criticized conclusory statements in
affidavits and have instead demanded that specific details be included to
support such conclusions, so that a magistrate can make an independent
determination of probable cause. See, e.g., Illinois v. Gates, 462 U.S. 213, 239 (1983) ("Sufficient information must be presented to the
magistrate to allow that official to determine probable cause; his action
cannot be a mere ratification of the bare conclusions of others."); United
States v. Settegast, 755 F.2d 1117, 1121 (5th Cir. 1985) ("a wholly
conclusory statement unsubstantiated by underlying facts is not sufficient
to support a determination of probable cause"); State v. Howe, 136 Vt. 53,
61, 386 A.2d 1125, 1130 (1978) ("[A]n affidavit, in order to enable the
magistrate reviewing the request for the warrant to make an independent
determination of the existence of probable cause, must set out underlying
facts so that the magistrate can weigh the reasonableness of the
conclusions drawn.") (emphasis added). In this case, the affidavit
included the details which led the officer to apply for a warrant, i.e.,
his observation of plants, "situated within a vegetable garden,"
consistent in "color, shape and texture" with marijuana, without including
the explicit conclusion, i.e., that the plant he observed was in all
likelihood marijuana.
We also note that the standard for a finding of probable cause,
"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. DeFranceaux, ___Vt. ___, ___, 743 A.2d 1074,
1075 (1999) (mem.) (quoting State v. Platt, 154 Vt. 179, 185, 574 A.2d 789,
793 (1990)), requires something less than the more-likely-than-not
standard we rejected in State v. Towne, 158 Vt. 607, 613-14, 615 A.2d 484,
487-88 (1992) (noting that "probable cause" can be equated with "reasonable
cause"); see also State v. Morris, 165 Vt. 111, 129, 680 A.2d 90, 102
(1996). And certainly absolute certainty is not required for a warrant to
issue. (FN2) See United States v. Gaviria, 805 F.2d 1108, 1115 (2nd Cir.
1986) ("the probable cause standard 'does not deal with hard certainties,
but with probabilities.'") (quoting Gates, 462 U.S. at 231).
A common sense reading of the quoted portion of Trooper Campbell's
affidavit, in conjunction with the officer's statements regarding his
training and experience, would permit a person of reasonable caution not
only to infer that the officer subjectively believed that what he observed
in Melchior's garden was probably marijuana, but also, and more
importantly, to objectively infer that what the officer observed was
likely in fact to be marijuana, and, therefore, that a crime was being
committed.
It would certainly have been odd behavior for the officers to return
to the "scene of the crime" on foot if they believed that they were
unlikely to find marijuana there. In fact, the Melchior property was one
of several locations the officers visited in their eradication efforts, all
of the follow-up visits being based solely on aerial identification.
Furthermore, the officer's statement in his warrant application that he
"ha[d] probable cause to believe" that marijuana plants would be found on
the Melchior property, also bolsters the implicit conclusion to be drawn
from his statements regarding what he observed: that he subjectively
believed that the plants he saw were marijuana.
In sum, reading the warrant application and accompanying affidavit on
its face and as a whole (while excising the portions not considered by the
trial court) establishes the following: the officer was taking part in an
operation specifically aimed at detecting marijuana from the air; he
observed plants that he determined, based on training and experience,
possessed traits characteristic of marijuana; a closer examination of the
location from the air revealed that the plants were situated with a
cultivated plot of land; and he believed that marijuana would be found on
the property if a search warrant were granted. Although not a dispositive
determination, it is reasonable to infer that an officer submitting such
an application believes the plants he has seen to be marijuana.
Additionally, the above facts provide "reasonable cause" for a person of
reasonable caution to conclude that marijuana is being cultivated on the
property the officers sought to search.
Melchior would have this Court uphold determinations of probable cause
only when the affidavit submitted in support of the warrant application
includes both the details leading to the application and the conclusions
to be drawn from those details, but to reverse determinations of probable
cause when the implicit conclusions to be drawn from the specific facts
remain just that, implicit. That is just the sort of hypertechnical
distinction that this Court has sought to avoid when
reviewing determinations of probable cause supporting warrants. (FN3) See,
e.g., Defranceaux, ___Vt. at ___, 743 A.2d at 1075-76 (viewing affidavit
in common sense manner and looking at totality of the circumstances, we
determined that although affidavit failed to explicitly identify the
officer who identified contents of a package, identity of officer was
fairly clear); see also United States v. Moore, 562 F.2d 106, 109-110 (1st
Cir. 1977) (although affidavit listing chemicals purchased by defendant
failed to specifically indicate that in officer's experience these
chemicals were used in the production of a Schedule III controlled
substance, common sense reading of affidavit, which included a general
description of the officer's experience and a statement that he believed
that the controlled substance would be found on the premises to be searched
supported implicit conclusion that the listed chemicals were "predictable
precursors of" the controlled substance to be searched for). We decline
to draw such a line.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Melchior also argues that the trial court impermissibly relied on a
finding that both officers agreed that what they observed from the air was
marijuana when making its determination of probable cause. It is clear
from the opinion, however, that the trial court made this finding of fact
as background information and in no way relied upon it in its legal
analysis regarding whether Trooper Campbell's affidavit supported a
finding of probable cause.
FN2. It is perfectly reasonable to expect cases of mistaken identification
like those noted by the dissent to occur from time to time. But this does
not change the legal standard by which probable cause is measured, which
as noted above is even less stringent than a more-likely-than-not standard.
In other words, there may be an equal chance that the facts observed by the
officer have an innocuous explanation as a nefarious one, but a warrant
may still issue to resolve the question.
FN3. Melchior relies on the Oregon case of State v. Carter, 848 P.2d 599
(Or. 1993) to draw such a distinction. Given our analysis, we are not
persuaded by the reasoning of the Oregon court.
------------------------------------------------------------------------------
Dissenting
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. 2000-192
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Addison Circuit
Lois Melchior November Term, 2000
Dean B. Pineles, J.
John T. Quinn, Addison County State's Attorney, Middlebury, for
Plaintiff-Appellee.
Benjamin H. Deppman and Ebenezer Punderson of Deppman & Foley, P.C.,
Middlebury, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
DOOLEY, J., dissenting. For three interrelated reasons, I cannot
agree that the affidavit of the trooper shows probable cause to believe
that defendant was growing marijuana, such that the court could issue a
warrant to search defendant's property based solely on that affidavit. The
trooper's affidavit stated:
I am a full time certified law enforcement officer having
received my Basic Certification through the Vermont Criminal
Justice Training Council in November 1997. I am presently
employed by the Vermont State Police as a Trooper. In addition
to my Basic Certification I attended the Advances [sic] Trooper
School of the Vermont State Police in which I was instructed the
on [sic] the topic of marijuana identification. I have also been
trained in
Marijuana identification and eradication through the MERT program.
The MERT program provides officers with identification of
marijuana from a helicopter flow [sic] by trained Vermont national
Guard members.
In addition to identification and eradication of Marijuana
plants through my training and experience and in conversations
with other law enforcement officers I know that:
indviduals who cultivate marijuana require implements
associated with growing plants such as grow lights, fertilizer,
and potting soil; Additionally[,] individuals cultivating
marijuana commonly maintain distribution records, receipts for
equipment and material purchases, address books, telephone
numbers, photographs, paraphernalia, money, negotiable
instruments, books, records, and ledgers, notes, and other papers
related to the ordering, sale, distribution, and cultivation of
marijuana. Individuals who are cultivating marijuana are known to
secrete [sic] these items in their residences or other buildings
in their control.
Based on the following facts this affiant believes that the
Samuel Whiteside property contains the items to be searched for on
the property to be searched because:
On 09-09-99 I was engaged in a MERT flyover in Addison
County along with Patrolman D. Sweet, and National Guard Pilot J.
Valley. The purpose of this flight was the detection of Marijuana
plants. In the area of Vt. Rt. 116 in the town of Bristol north
of the Middlebury town line I observed a stand of plants
consistent in color, shape and texture with Marijuana plants.
Upon closer examination from the air it was determined that the
plants were situated within a vegetable garden on the property of
what was later identified as the Samuel Whiteside property.
(Ownership of this property was determined by contacting Penny
Sherwood of the Bristol Town Offices).
After landing the helicopter I drove with Patrolman D. Sweet,
and Guardsman J. Valley to the suspect property. Once there we
entered a driveway of an adjacent property which afforded us a
view of the back yard of the Whiteside property. From that
position I observed 15-20 marijuana plants growing in a vegetable
garden. This garden is located within 50 feet of the main house
(white). The lawn around the garden is maintained consistent
with the maintenance of the entire grounds. The lawn was mowed
and the garden attended to.
We next left that driveway and drove onto Vt. Rt. 116 and
parked my marked Vermont State Police car in plain view of the
house. Together with Patrolman D. Sweet I went to the white house
and knocked on the south door. While approaching this doorway I
was able to confirm my observation of the plants, their location,
and proximity to the house. My knock went unanswered. I also
verbally identified myself as a police officer and received no
response.
Based upon the above information I respectfully request
permission to search for and seize the aforementioned items at the
place to be searched.
First, the officer never stated that he believed that he had observed
marijuana. Instead, he stated that "I observed a stand of plants
consistent in color, shape and texture with Marijuana plants." If the
color, shape and texture of marijuana were unique, I could accept, as does
the majority, that the officer was actually saying that he believed he saw
marijuana. But, neither the color, shape or texture of marijuana plants,
nor the combination of the three is unique. Although marijuana plants
have a mature stage where they are covered in flowering buds, they also
have an earlier vegetative stage when they appear just as any other green
leafy plant. A marijuana plant is commonly described as a "[c]oarse,
strong-smelling . . . annual," The Encyclopedia of Herbs and Herbalism 165
(M. Stuart ed., 1979), with male and female flowers on separate plants,
three to fifteen feet tall, attached to the stem at the base or center of
a long, thin, palm-shaped leaf, and having three to eleven narrow
lance-shaped leaflets, that are toothed and are three to five inches long.
See id.; accord D. Wyman, Wyman's Gardening Encyclopedia 184 (rev. ed.,
1986) ("leaves are alternate, digitately compound with 3-7 leaflets up to
9 in[ches] long," with male and female "greenish flowers being present on
different plants"). These physical characteristics describe any number of
five- or nine-palmate green plants, including the houseplant false aralia
(dizygotheca elegantissima and dizygotheca veitchii). We know, of course,
that officers at times mistakenly identify other plants
as marijuana from reported decisions. See State v. Carter, 848 P.2d 599,
601 n.4 (Or. 1993) (common houseplants mistaken for marijuana and search
warrant obtained); State v. Seagull, 632 P.2d 44, 46 (Wash. 1981) (tomato
plant mistaken for marijuana and warrant obtained).
The majority's response is that the officer must have believed that
the plants were marijuana because he went to the property on foot. While
it might be proper police practice to follow up with an on-site
investigation only if an officer has identified a plant as marijuana from
the air, there is nothing in this record to suggest that the police are
required to follow such a procedure. Nor is such a requirement logical.
I think it more likely that an officer, who saw from the air plants of the
right color, shape and texture, would want to investigate further without
having to conclude that the plants were marijuana. That is exactly what
occurred here. Rather than seeking a search warrant based on the sighting
from the air, the officer went to look at the plants from the ground.
Indeed, the State submitted an affidavit that contained the results of
both the flyover identification and the observation from the driveway of
the adjoining landowner, apparently believing both were necessary. Its
argument that the flyover identification is alone sufficient is a fall back
position.
The majority also concludes that the officer must have believed that
he saw marijuana from the air because he said "he ha[d] probable cause to
believe" marijuana would be found on the property. Ante at 4. I would be
concerned about any inference being drawn from the boilerplate of a search
warrant application, but in this case even the boilerplate does not support
the majority's conclusion. The assertion in the warrant application is
based on the officer's affidavit which includes his observations of the
plants from the ground, the observations that were excised by the trial
court. In fact, the officer never stated that he believed he had probable
cause to search the house based on the overflight observations alone; and
we do not know whether he had such a belief.
I also note that the majority's construction of the affidavit is
inconsistent with the language chosen by the trooper. When he believed,
from his observation, that the plants were marijuana he said so, as he did
when he described his observation from the driveway of the adjoining
property: "I observed 15-20 marijuana plants growing in a vegetable
garden." When he did not, he used the consistency language in issue.
In summary on this point, the center of my disagreement is with the
majority's assertion that the officer "believed that marijuana would be
found on the property if a search warrant were granted." Id. If the
officer had ever said what the majority ascribes to him, describing his
observations from the air and not those from the ground, I would not
dissent. In fact, the officer never stated such a belief, and we have no
proper grounds from which to infer such a belief.
The second reason is that the officer was 525 to 600 feet from the
plants when he observed them, approximately the distance of two football
fields. He did not use binoculars or any other aid to his sight. I am
not saying that this distance alone prevents a finding of probable cause.
Instead, the distance provides a clear explanation why an officer would be
tentative in a plant identification, describing consistency of color,
texture and shape, and not rendering an opinion on whether a plant is
marijuana. Put another way, I would be much more likely to accept the
majority's view that he must have thought the plants were marijuana if he
had viewed them from ten feet away.
Third, the affidavit's description of the training and experience of
the officer is very limited, far more limited than we find in other cases.
See People v. Oynes, 920 P.2d 880, 883 (Colo. Ct. App. 1996) (affidavit
described officer's ten years of experience, including over three hundred
hours of narcotics training and a DEA course on marijuana cultivation);
State v. Cord, 693 P.2d 81, 85 (Wash. 1985) (affidavit stated that officer
had thirteen years experience, attended numerous seminars
and marijuana identification school, had experience identifying marijuana
in all stages of growth, and had identified marijuana from a plane on ten
prior occasions that all resulted in marijuana being seized); State v.
Wilson, 988 P.2d 463 466-67 (Wash. Ct. App. 1999) (affidavit stated two
officers were ninety percent sure plants were marijuana, one of whom was
trained in marijuana identification and in three years' experience had
successfully identified and eradicated over thirty separate marijuana
gardens). Again, I might be more inclined to accept the majority's
inference if we had clear evidence that the trooper was thoroughly
trained, and had substantial experience, in marijuana identification.
I believe we should follow the one case which is clearly on point,
State v. Carter, a unanimous en banc decision of the Oregon Supreme Court
largely ignored by the majority. In Carter, the officer's affidavit that
supported the warrant stated that he had observed green plants when he
looked through a window in the defendant's home that were "consistent with"
marijuana in color. 848 P.2d at 599. The officer also stated he had
looked again with binoculars, and that the "color and a plant stem were
'consistent with' marijuana." Id. at 599-600. Like this case, the
affidavit in Carter did not contain a statement that the green plants were
marijuana nor that the officer believed them to be marijuana. In Carter,
however, the officer's affidavit did contain details about his training and
experience. Id. at 600 ("During the last two (2) years I made at least
eleven (11) aerial observations of what I stated was growing marijuana.
On each occasion recovery on the ground confirmed my aerial sighting.").
As I pointed out above, subsequent to the issuance of the warrant, and the
search of the defendant's premises, the green plants observed in the
window by the officer turned out to be common houseplants, and the only
marijuana seized was from a windowless basement area. Id. at 601 n.4.
In reversing, the Carter court held that the affidavit was not
sufficient to establish probable cause for the issuance of the warrant,
id. at 603, and the standard of review in Carter is the same as that used
here by the majority. Compare Carter, 848 P.2d at 602 (whether the
magistrate could have reasonably concluded from the facts included in the
affidavit that there was probable cause to believe the green plant was
marijuana), with ante at 3 ("whether magistrate objectively may infer from
the facts in the affidavit that 'a crime has been committed and that
evidence of the crime will be found in the place to be searched'" quoting
State v. Zele, 168 Vt. 154, 157, 716 A.2d 833, 835-36 (1998)). The Carter
court reasoned:
Omissions are of significance when evaluating an affidavit for a
warrant. Here the affidavit omitted any conclusion drawn as to
the nature of the green plant observed or whether affiant, as a
person trained and experienced in identifying marijuana visually,
drew any conclusion. The affidavit included no information as to
why commonplace observation of a green plant in a residence
window would support a finding, or probable cause to believe that
the plant the observer saw was marijuana. It is not a particular
fact causing one to believe that the seizable thing is there.
Those comments are not a criticism of what the officer put in his
affidavit. Rather, simply stated, what the affidavit included
was not enough, because it did not state that the plant observed
was, or was believed to be, marijuana.
Carter, 848 P.2d at 602 (citations omitted).
Of course, we are not required to follow a decision of the Oregon
Supreme Court. Carter is, however, the only decision directly on point,
is unanimous, and well reasoned. Unfortunately, the majority does not
tell us why it finds Carter unpersuasive.
Reduced to its essence, the holding of the majority is that every time
a police officer flies over a large green plant, with narrow leaves that
shine in the sunlight, and sees it from the air, he can obtain a warrant
to search the home of the landowner where the plant is found. There will
be no
reason for the police to attempt to obtain a positive identification on the
ground. The result, I fear, will be unnecessary and mistaken home
searches, with a clear invasion of the privacy of Vermont homeowners.
I respectfully dissent. I am authorized to state that Justice Johnson
joins in this dissent.
_______________________________________
Associate Justice
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