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| This has got to be evidence of something. |
By Elizabeth Kruska
Warning: law nerd post ahead. This is going to be full-on criminal procedure discussion from here on out. It may not be as fun or cheeky as some of our other posts. That’s because sometimes cases can be cheeky, but sometimes we like to nerd out. This is the latter.
Our friends the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution deal with unreasonable searches and seizures. A search warrant, supported by probable cause, is needed for searches in homes. Search warrants are needed for other kinds of searches, too, but since this is a case about a home, I’m honing in on homes.
Warrants must be issued by a neutral and detached magistrate (or judge, but 4A says “magistrate” so that’s the word we’ll use. James Madison was no fool and drafted these amendments using particular words for very good reason; I see no reason to second-guess.). The magistrate can only issue such a warrant if the request from law enforcement is supported by sworn affidavits that establish probable cause to support a belief that evidence of a crime will be found in the place to be searched. Warrants have to be particular in describing what is being searched and what police are able to look for. If it’s too vague, it looks like a general warrant, which we collectively decided was no good in or around the late 1700s.
So, how do we get to probable cause? Sometimes police have firsthand knowledge of evidence of a crime. I’ll make up some facts. Suppose a police officer responds to a call at 123 Fake Street. While she’s at 123 Fake Street, she turns her head and sees non-emergency criminal activity going on through an open window at 125 Fake Street. Curious, she drives down Fake Street a few times over the next couple of days and makes additional observations that are entirely consistent with criminal activity. She wants to get inside 125 Fake Street, but she can’t just bust in, so she gets a warrant. She will write an affidavit, swearing under the pains and penalties of perjury, to what she saw firsthand, and why that supports the need for a warrant to go into the house and seize relevant fruits of unlawful activity.
But, as we all know, police can’t be everywhere at once. They sometimes have to rely on other information in doing their investigations. And that’s where we have a problem. If police hear from Informant that Defendant did X, and they want to use Informant’s statement to prove that in support of a warrant, that’s good ol’ fashioned hearsay. And the problem with hearsay – other than that it’s greatly misunderstood – is that it isn’t always reliable. And that’s because people don’t always tell the truth. There’s really no way for a police officer to say whether someone is telling the truth or not, absent independent verification (which isn’t always available). And if an officer is going to submit an affidavit to try to establish probable cause, it’s got to be truthful, or at least as close to the truth as possible.
So now we have a problem. Police can’t say “this is the truth” because they don’t know that it’s the truth. They can say, “I learned X from Informant.” The Neutral and Detached Magistrate (NDM) is going to read this and say, “how do I know Informant isn’t full of baloney or somehow angling for something for himself? Give me reasons why I should believe this hearsay.”
Here in Vermont we follow what’s known as the Aguilar-Spinelli test (Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969)) for the NDM to determine whether the hearsay contained in the search warrant affidavit is sufficiently credible for a warrant to be issued. There needs to be something from the officer that speaks to the credibility of the informant, as well as to the veracity of the informant. It can’t just be, “Informant seems like a good egg, therefore it’s true.”
In talking about credibility, often police can point to times in the past when the informant has provided information that turned out to be reliable. This also happens when an informant has no skin in the game. If a concerned citizen approaches police and says, “that guy over there is selling drugs out of his car, I know because I saw [whatever he saw]. I don’t know them or anything about it, but it’s bad for my town and I’m worried,” then this tends also to be credible.
Let’s get to reliability. If an informant gives information that is against his or her own penal interest – meaning that turning over information that could ultimately hurt themselves – that tends to be considered in terms of determining the reliability of the statement. People generally aren’t giving up information that hurts them if it isn’t true.
If the NDM is sufficiently satisfied that the hearsay meets these two tests, the NDM can issue a warrant supported by those statements.
And let’s not even get in to the “totality of the circumstances” test from Illinois v. Gates, which is what the feds, and many other states use. Gates is a great case in that it really had good facts to establish that particular point of law, but it isn’t the test we use in Vermont, so it’s somewhat irrelevant for our purposes today.
And now, after a page and a half of lawyer nerding, here comes today’s case.
Doug Finkle got charged in the summer of 2016 with a drug charge. Someone (let’s call him “Informant,” because that’s what he turned out to be) overdosed on heroin and was revived with Narcan. Upon being revived he said the person who sold him the heroin that caused the overdose was someone named “Joe.” A couple weeks later, Informant talked to police again, and this time said he got the heroin in question from Doug. He described the outside and inside of Doug’s house. He also said Doug had a neck tattoo. He also said that after the overdose, he subsequently bought more heroin from Doug. During that second conversation with police, Informant got some little baggies out of his pocket, perhaps as evidence of that purchase.
Police used this information to go get a search warrant for Doug’s house. In it, the officer included the information from Informant. The officer also indicated that he was personally familiar with Doug, and he had firsthand knowledge that Informant’s description of Doug’s house matched what he knew Doug’s house to look like. He also said that Doug has a neck tattoo. This is important, because there are 2 Doug Finkles in town; Doug, Sr., and Doug, Jr. The officer said he knows Sr. (the Doug in question) to have a neck tattoo, and Jr. not to have a neck tattoo.
This isn’t correct; Doug, Sr. doesn’t have a neck tattoo. It’s a little unclear why the officer said he does or says he knows that he does. (if this were the kind of joint where we used emojis, I’d insert this emoji 🤷 here)
Our friends the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution deal with unreasonable searches and seizures. A search warrant, supported by probable cause, is needed for searches in homes. Search warrants are needed for other kinds of searches, too, but since this is a case about a home, I’m honing in on homes.
Warrants must be issued by a neutral and detached magistrate (or judge, but 4A says “magistrate” so that’s the word we’ll use. James Madison was no fool and drafted these amendments using particular words for very good reason; I see no reason to second-guess.). The magistrate can only issue such a warrant if the request from law enforcement is supported by sworn affidavits that establish probable cause to support a belief that evidence of a crime will be found in the place to be searched. Warrants have to be particular in describing what is being searched and what police are able to look for. If it’s too vague, it looks like a general warrant, which we collectively decided was no good in or around the late 1700s.
So, how do we get to probable cause? Sometimes police have firsthand knowledge of evidence of a crime. I’ll make up some facts. Suppose a police officer responds to a call at 123 Fake Street. While she’s at 123 Fake Street, she turns her head and sees non-emergency criminal activity going on through an open window at 125 Fake Street. Curious, she drives down Fake Street a few times over the next couple of days and makes additional observations that are entirely consistent with criminal activity. She wants to get inside 125 Fake Street, but she can’t just bust in, so she gets a warrant. She will write an affidavit, swearing under the pains and penalties of perjury, to what she saw firsthand, and why that supports the need for a warrant to go into the house and seize relevant fruits of unlawful activity.
But, as we all know, police can’t be everywhere at once. They sometimes have to rely on other information in doing their investigations. And that’s where we have a problem. If police hear from Informant that Defendant did X, and they want to use Informant’s statement to prove that in support of a warrant, that’s good ol’ fashioned hearsay. And the problem with hearsay – other than that it’s greatly misunderstood – is that it isn’t always reliable. And that’s because people don’t always tell the truth. There’s really no way for a police officer to say whether someone is telling the truth or not, absent independent verification (which isn’t always available). And if an officer is going to submit an affidavit to try to establish probable cause, it’s got to be truthful, or at least as close to the truth as possible.
So now we have a problem. Police can’t say “this is the truth” because they don’t know that it’s the truth. They can say, “I learned X from Informant.” The Neutral and Detached Magistrate (NDM) is going to read this and say, “how do I know Informant isn’t full of baloney or somehow angling for something for himself? Give me reasons why I should believe this hearsay.”
Here in Vermont we follow what’s known as the Aguilar-Spinelli test (Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969)) for the NDM to determine whether the hearsay contained in the search warrant affidavit is sufficiently credible for a warrant to be issued. There needs to be something from the officer that speaks to the credibility of the informant, as well as to the veracity of the informant. It can’t just be, “Informant seems like a good egg, therefore it’s true.”
In talking about credibility, often police can point to times in the past when the informant has provided information that turned out to be reliable. This also happens when an informant has no skin in the game. If a concerned citizen approaches police and says, “that guy over there is selling drugs out of his car, I know because I saw [whatever he saw]. I don’t know them or anything about it, but it’s bad for my town and I’m worried,” then this tends also to be credible.
Let’s get to reliability. If an informant gives information that is against his or her own penal interest – meaning that turning over information that could ultimately hurt themselves – that tends to be considered in terms of determining the reliability of the statement. People generally aren’t giving up information that hurts them if it isn’t true.
If the NDM is sufficiently satisfied that the hearsay meets these two tests, the NDM can issue a warrant supported by those statements.
And let’s not even get in to the “totality of the circumstances” test from Illinois v. Gates, which is what the feds, and many other states use. Gates is a great case in that it really had good facts to establish that particular point of law, but it isn’t the test we use in Vermont, so it’s somewhat irrelevant for our purposes today.
And now, after a page and a half of lawyer nerding, here comes today’s case.
Doug Finkle got charged in the summer of 2016 with a drug charge. Someone (let’s call him “Informant,” because that’s what he turned out to be) overdosed on heroin and was revived with Narcan. Upon being revived he said the person who sold him the heroin that caused the overdose was someone named “Joe.” A couple weeks later, Informant talked to police again, and this time said he got the heroin in question from Doug. He described the outside and inside of Doug’s house. He also said Doug had a neck tattoo. He also said that after the overdose, he subsequently bought more heroin from Doug. During that second conversation with police, Informant got some little baggies out of his pocket, perhaps as evidence of that purchase.
Police used this information to go get a search warrant for Doug’s house. In it, the officer included the information from Informant. The officer also indicated that he was personally familiar with Doug, and he had firsthand knowledge that Informant’s description of Doug’s house matched what he knew Doug’s house to look like. He also said that Doug has a neck tattoo. This is important, because there are 2 Doug Finkles in town; Doug, Sr., and Doug, Jr. The officer said he knows Sr. (the Doug in question) to have a neck tattoo, and Jr. not to have a neck tattoo.
This isn’t correct; Doug, Sr. doesn’t have a neck tattoo. It’s a little unclear why the officer said he does or says he knows that he does. (if this were the kind of joint where we used emojis, I’d insert this emoji 🤷 here)
Informant went on to say that he said he bought the bad heroin from “Joe” because he was afraid of Doug. But, he also said he only buys heroin from Doug. Informant didn’t have a Vermont criminal record, but had previously been charged with heroin possession in Connecticut. He voluntarily gave up the information about Doug to the police and didn’t provide it in exchange for any sort of deal on any pending Vermont charges.
Maybe I missed this, but it’s a little unclear to me why Informant was talking to police a couple weeks later, anyway. (more 🤷🤷 emoji)
Anywhoo, police used this little basket of information to get a search warrant for Doug’s house. They searched and didn’t find any heroin. But, they talked to a woman who was living there, and based on information they gathered (unclear if it was from her or some other way), they sought a second warrant for Doug’s cars. Doug got stopped a few days later, police searched his car pursuant to the second warrant, and arrested him for various drug crimes based on the fruits of that search.
Doug got charged with these offenses, and sought to suppress all the evidence from the search. The basis for the motion to suppress was that the affidavit in support was full of inaccuracies (neck tattoo being one of them), and thus the warrant shouldn’t have been issued. The motion was denied without a hearing, and Doug appealed.
Yipes, stripes, this is a long way to get to the fact that SCOV affirmed and said this warrant was okay.
First of all, they said the factual basis prong was just fine. There was an actual source of the information (this is before getting to the veracity of the information). There were some details given based on personal, firsthand information the Informant actually had.
Doug says, “back up the truck. Informant can say all the details they want, but they have to be true, and it’s no good that the officer backed up these details even though they’re false.” SCOV points out the burden is on the defendant to show by a preponderance of the evidence that the government agent making those statements – here, the police officer saying he knows Doug, Sr., has a neck tattoo – was done so “intentionally, knowingly, or with reckless disregard for the truth.” The remedy there is for the court basically to strike the incorrect information and see if there’s still probable cause based on what’s left. You know, I get that. Sometimes people, even law enforcement, make mistakes. It might make the most sense to cross out the mistake and see what’s left.
Doug also objected to the finding that Informant was credible. He only knew fairly mundane facts about Doug that many people would be able to know or figure out. SCOV says yes, that’s true, but he also gave statements against his own penal interest. He ponied up some heroin baggies, and probably could have been charged with possession. Based on the circumstances surrounding his giving the statement about Doug, that tends to enhance the reliability of the contents of the statement.
Doug also argued that there were some inconsistencies in the affidavit: the neck tattoo, the timing of a prior arrest, the fact Doug was not convicted of certain prior charges (that was omitted). He says there should have been a hearing about this. Instead, the trial court just ruled on the motion. SCOV says this was ok, because even without these inconsistencies there’s enough for probable cause for a warrant. SCOV affirms the lower court.
There’s a dissent. If you’re still reading, bless your heart.
Justice Skoglund, joined by Justice Robinson, isn’t having it. The dissent says that Informant really didn’t have any substantive information other than that he allegedly bought heroin from Doug. He knew some “innocent details” about Doug’s home, which the dissent points out isn’t enough to establish the credibility of hearsay evidence. Even though the police officer seemed to corroborate Informant’s information by saying he, too, had been to the house and knew what it looked like, it wasn’t clear when he had gone there. And these details – that the house was messy with clothes everywhere and cabinets by the refrigerator – are not evidence of a crime. If they were, we’re probably all in trouble, because a) clothes on the floor is a pretty common household sight/bad habit, and b) roughly everyone has cabinets next to their refrigerator. Neither of these things is evidence of a crime.
Also, the officer totally got the neck tattoo wrong. He wrote that he knew Doug, Sr. from prior law enforcement interactions and knew about the tattoo. But he just didn’t have a tattoo. And the officer also swore that Doug had been arrested on a particular day. But that just wasn’t true, either. And he omitted a critical piece of information about Doug’s criminal history, which would make it seem like his history was worse than it actually was.
Anywhoo, police used this little basket of information to get a search warrant for Doug’s house. They searched and didn’t find any heroin. But, they talked to a woman who was living there, and based on information they gathered (unclear if it was from her or some other way), they sought a second warrant for Doug’s cars. Doug got stopped a few days later, police searched his car pursuant to the second warrant, and arrested him for various drug crimes based on the fruits of that search.
Doug got charged with these offenses, and sought to suppress all the evidence from the search. The basis for the motion to suppress was that the affidavit in support was full of inaccuracies (neck tattoo being one of them), and thus the warrant shouldn’t have been issued. The motion was denied without a hearing, and Doug appealed.
Yipes, stripes, this is a long way to get to the fact that SCOV affirmed and said this warrant was okay.
First of all, they said the factual basis prong was just fine. There was an actual source of the information (this is before getting to the veracity of the information). There were some details given based on personal, firsthand information the Informant actually had.
Doug says, “back up the truck. Informant can say all the details they want, but they have to be true, and it’s no good that the officer backed up these details even though they’re false.” SCOV points out the burden is on the defendant to show by a preponderance of the evidence that the government agent making those statements – here, the police officer saying he knows Doug, Sr., has a neck tattoo – was done so “intentionally, knowingly, or with reckless disregard for the truth.” The remedy there is for the court basically to strike the incorrect information and see if there’s still probable cause based on what’s left. You know, I get that. Sometimes people, even law enforcement, make mistakes. It might make the most sense to cross out the mistake and see what’s left.
Doug also objected to the finding that Informant was credible. He only knew fairly mundane facts about Doug that many people would be able to know or figure out. SCOV says yes, that’s true, but he also gave statements against his own penal interest. He ponied up some heroin baggies, and probably could have been charged with possession. Based on the circumstances surrounding his giving the statement about Doug, that tends to enhance the reliability of the contents of the statement.
Doug also argued that there were some inconsistencies in the affidavit: the neck tattoo, the timing of a prior arrest, the fact Doug was not convicted of certain prior charges (that was omitted). He says there should have been a hearing about this. Instead, the trial court just ruled on the motion. SCOV says this was ok, because even without these inconsistencies there’s enough for probable cause for a warrant. SCOV affirms the lower court.
There’s a dissent. If you’re still reading, bless your heart.
Justice Skoglund, joined by Justice Robinson, isn’t having it. The dissent says that Informant really didn’t have any substantive information other than that he allegedly bought heroin from Doug. He knew some “innocent details” about Doug’s home, which the dissent points out isn’t enough to establish the credibility of hearsay evidence. Even though the police officer seemed to corroborate Informant’s information by saying he, too, had been to the house and knew what it looked like, it wasn’t clear when he had gone there. And these details – that the house was messy with clothes everywhere and cabinets by the refrigerator – are not evidence of a crime. If they were, we’re probably all in trouble, because a) clothes on the floor is a pretty common household sight/bad habit, and b) roughly everyone has cabinets next to their refrigerator. Neither of these things is evidence of a crime.
Also, the officer totally got the neck tattoo wrong. He wrote that he knew Doug, Sr. from prior law enforcement interactions and knew about the tattoo. But he just didn’t have a tattoo. And the officer also swore that Doug had been arrested on a particular day. But that just wasn’t true, either. And he omitted a critical piece of information about Doug’s criminal history, which would make it seem like his history was worse than it actually was.
The dissent finds this to have been sloppy, and frankly, says this does a disservice to law enforcement as a whole. “This case supports the disturbing conclusion that [officer] either was unsure about whom he was identifying, or in the absence of any useful facts, was willing to ‘corroborate’ whatever was necessary to get a warrant.” Zing!
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