State v. Melchior

775 A.2d 901, 172 Vt. 248, 2001 Vt. LEXIS 155

• Court: Supreme Court of Vermont
• Decided: May 11, 2001
• Docket: 00-192
• Status: Published

Opinions

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.¹ 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, 170 Vt. 561, 562, 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.² See United States v. Gaviria, 805 F.2d 1108, 1115 (2d 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.³ See, e.g., Defranceaux, 170 Vt. at 562, 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, 109-10 (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.

1 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.

2 It is perfectly reasonable to expect eases 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.

3 Melchior relies on the Oregon ease 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.