Saturday, January 28, 2017

Mr. Blue Sky

State v. Cleland, 2016 VT 128

By Elizabeth Kruska

Mr. Blue Sky . . .

In the summer of 2013 police got wind of Mr. Stuart Cleland’s ongoing attempt to become Vermont’s own Walter White, and did some investigation that led to the issuance of a search warrant. The warrant apparently turned up some evidence that led to Cleland’s being charged with a whole basket of meth-related charges. He filed a motion to suppress the search warrant and to dismiss. Makes sense: if the evidence gets suppressed, there’s no evidence upon which he could be convicted, so the case would have to get dismissed.

The trial court denied his motion to suppress. He appeals on several grounds. First, he says the search warrant, which was for his house, didn’t establish a connection between the house and the alleged crime. Also, there were hearsay statements in the search warrant application affidavit, and he took issue with their reliability and the basis for the statements. SCOV is unpersuaded and affirms.

A search warrant is an investigative tool. It’s not a fishing expedition, nor is it a rubber-stamped free-for-all. If police think there’s something going on and they want to search, they either have to get a warrant, which takes some background work, or find an exception to the warrant requirement. Sometimes that’s as easy as saying, “Hey, can I take a look around?” If the person says yes and evidence is found, it can get used. But there are obviously practical reasons why police might not want to seek consent for a meth lab, not the least of which is that a “meth lab” can fit in a standard-size Hello Kitty backpack and can be easily moved from place to place. Police are going to want to find a way to do the investigation without rousing too much suspicion and to be able to come in and search while the goods are still where they expect them to be.

Over a month or so, police worked with informants who provided information about Cleland and the goings-on at his house. They also got information about the amount of pseudoephedrine Cleland and his domestic partner bought over the prior five months or so. Since pseudoephedrine is a main ingredient in meth, people are limited in the amount they can buy at a time. If you have a head cold, though, nothing’s better than Sudafed to knock that sucker out. It does give you a little bit of a boost. If you’re an Olympic gymnast and you take it before competing in the all-around event, you’re going to lose your gold medal. Long story short: this is a good and useful product, but it’s got its downsides.

Once the police had a combination of pseudoephedrine information and informant information, they applied for a warrant, which was granted. You might say, “Now hold on here, just a dang-blasted second. An informant can tell police whatever they want. It doesn’t make it true. That’s hearsay!” Yes. Yes, it is hearsay. Show of hands, lawyer-friends: how many times have you heard someone say, “They can’t do that! It’s hearsay!” when it patently isn’t hearsay? Then you have to explain the actual definition of hearsay and the person’s eyes glaze over and they respond by saying, “Yeah, well, I still think it’s hearsay.” If I had a dollar for each time I’ve had that conversation I’d be able to pay off my car. Maybe even my mortgage.

Courts are well aware of the fact that generally, hearsay is not admissible because it’s not necessarily reliable. Well, they should be aware of that. They also know that sometimes the only way police get information is based on their network of people on the ground who are willing to tell them things. They also know that informants aren’t hot to provide their identifying information, and that police generally want to protect their informants. Protection ensures safety and also that the informants will continue to provide high-quality information in the future.

Vermont follows the Aguilar-Spinelli test for situations like this. The court has to determine that the informant or informants are inherently credible or provided reliable information in that instance, and that there was a factual basis for the information that came from the informant.

Cleland challenges this, and SCOV says “nice try.” There’s a whole list in the opinion of information provided to the police by various informants. These bits of information, along with the information about the pseudoephedrine purchases, and Cleland’s own statements, all stirred together is enough to get over the hurdle of probable cause. It’s a low hurdle. All the police have to show is that there’s enough information upon which a judge could reasonably conclude a crime had been committed and that evidence of a crime would be found in the place to be searched.

Cleland also challenged the reliability of the informants. It’s not permissible for a court to be backward-looking and to say, “Well, they found mountains of meth in the house, so it must have been reliable information to get the warrant.” Also, if you rename your house “Meth Mountain” that’s probably a dead giveaway you’re making meth there. Pro tip: don’t do that.

It’s necessary to look at what the judge would learn at the time he or she is reading the warrant affidavit before authorizing the search. So, at the time the warrant application is presented to the judge, there’s got to be sufficient information in that affidavit to explain why the informant is reliable. Here, the officer—who swore to the truth of the affidavit—said that in the past this particular informant had provided reliable information about other drug-related activity. Besides, since this warrant wasn’t based solely on the informant’s hearsay statements, those statements are just a part of what added up to probable cause.

Cleland also tried to argue that since one of the informants didn’t witness the actual manufacturing of methamphetamine, that the warrant was deficient with respect to that particular charge. SCOV disagrees. The question is whether there would be evidence of a crime found. There was enough to get to illegal possession of meth, based on all the facts presented in the warrant affidavit. While the police were there they also found evidence of manufacturing, which was perfectly legal to charge. The warrant was like the key to get into the house, and because the evidence of manufacturing was within the scope of the authorized search, it was fine for him to be charged with that. I suppose if the facts were different and if the police were searching for a stolen snowmobile and found evidence of meth manufacturing in a place where nobody could hide a snowmobile (like under a sink or in a Hello Kitty backpack), we’d be having a different conversation.

So, SCOV affirms.

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