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State v. Nunez

Supreme Court of Maine

December 22, 2016


          Argued: September 15, 2016

          Hunter J. Tzovarras, Esq. (orally), Hampden, for appellant Oscar Nunez.

          R. Christopher Almy, District Attorney, and Tracy Collins, Asst. Dist. Atty. (orally), Prosecutorial District V, Bangor, for appellee State of Maine


          HUMPHREY, J.

         [¶1] Oscar Nunez appeals from a judgment entered in the Unified Criminal Docket (Penobscot County, Anderson, J.) convicting him of one count of arson, 17-A M.R.S. § 802(1)(A) (2015), and two counts of criminal threatening, 17-A M.R.S. §§ 209(1), 1252(4) (2015), pursuant to a conditional guilty plea through which he reserved the right to appeal the denial of his suppression motion. Nunez argues that, because it was objectively unreasonable for an officer to believe the search warrant established probable cause, the court erred in applying the good faith exception to the exclusionary rule to deny his motion. We conclude the warrant was supported by probable cause and affirm.[1]

         I. BACKGROUND

         [¶2] On July 22, 2012, Special Agent Lori Renzullo of the Maine Drug Enforcement Agency (MDEA) applied for a warrant to search the alleged home of Oscar Nunez at 45 West Side Drive on Verona Island. Renzullos supporting affidavit alleged the following facts.

         [¶3] Earlier that day, an unidentified individual fired multiple .380 caliber rounds at and set fire to a residence in Orrington belonging to David Ireland. When law enforcement officers responded, they observed marijuana plants on the porch and in the basement, and, with Irelands consent, they searched the property. An investigator found a substance that Ireland admitted was heroin and contacted Renzullo, who arrived at Irelands residence and observed light brown powder consistent with heroin and packaging consistent with crack cocaine.

         [¶4] Ireland told Renzullo that a few months earlier, he worked for an individual known as "Shorty, " whose real name Ireland believed to be Oscar Nunez. Ireland stated that Nunez[2] was a drug dealer who sold crack cocaine and that Ireland had purchased crack from Nunez in the past. He told Renzullo that he worked for Nunez as a driver, but quit after only a week because he was scared. According to Ireland, this upset Nunez, who thereafter accused Ireland of stealing customers, attempted to run Ireland off the road with his car, pepper sprayed Irelands vehicle, and once put a gun to Irelands head in front of his children.

         [¶5] Renzullo also spoke with a man who identified himself as Rolando Cabrera. Cabrera said that he and Ireland were friends and that he was present during the shooting and arson at Irelands residence. Cabrera told Renzullo that he had mutual acquaintances with Shorty, knew him from New York, and that Shortys real name was Oscar Nunez. Cabrera stated Nunez used to live at 117 Union Street in Brewer, but had recently moved to Verona Island. According to Cabrera, before moving to Verona Island, Nunez sold crack on Ohio Street in Bangor as a member of a "Dominican gang" from the end of 2010 to the fall of 2011. After the other gang members were arrested, Nunez returned to Bangor and assumed control of the crack business.

         [¶6] Renzullo averred that Cabrera took two investigators to 45 West Side Drive on Verona Island and identified the home as Nunezs current residence.[3] Cabrera told the investigators that Nunez usually parked a Toyota in the driveway and that Nunez was not home because there was no vehicle.

         [¶7] In the affidavit, Renzullo also stated that, with the foregoing information, she obtained a search warrant for Irelands residence. Investigators searched the residence again and found additional drugs and firearms. Renzullo then spoke to Ireland a second time about his dealings with Nunez.

         [¶8] During the second conversation, Ireland told Renzullo that he drove Nunez around for about a week in vehicles Nunez rented from a Toyota dealership. Ireland stated Nunez had also wanted him to sell drugs and gave him ten bags of crack and heroin. Ireland maintained that he never sold any of the drugs, that Nunez threatened Ireland with a gun after Ireland used some of the heroin, and that Nunez asked Ireland to wire sums of money ranging from $500 to $1, 500 to individuals in New York on ten or twelve occasions over several months. Ireland also told Renzullo he saw Nunez carry twenty to forty bags of crack "in his crotch" on several occasions.

         [¶9] Renzullo further averred that she had interviewed a cooperating defendant (CD) on July 17, 2012. The CD, who was arrested on a drug-related offense, was known to Renzullo and had provided the MDEA reliable information in the past. The CD informed Renzullo that a "new group of Dominicans" was operating in the area with operations believed to be based in Brewer because Shorty arranged for drug buys to occur on School Street in Brewer. The CD had purchased crack from Shorty five to ten times in the previous month and gave Renzullo the telephone number to place a crack order. The CD thought the voice in the numbers voicemail was Shortys, but did not know for sure. The voicemail message informed the caller: "If you are wearing a wire or youre snitching, Ill. blow your brains out."

         [¶10] Renzullo concluded with the assertion that based upon her experience, education, training, and study, [4] it is common for those involved in drug trafficking to keep evidence of their criminal activity at their residences.

         [¶11] On July 22, 2012, the District Court (Ellsworth, Mallonee, J.) issued a warrant authorizing officers to search Oscar Nunezs residence at 45 West Side Drive on Verona Island. The court concluded that based on the Renzullo affidavit, there was probable cause to search for and seize any ...

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