Argued: February 10, 2016
J. Drake, Esq. (orally), Drake Law, LLC, Auburn, for
appellant David Thompson
T. Mills, Attorney General, and Leanne Robbin, Asst. Atty.
Gen., (orally), Office of the Attorney General, Augusta, for
appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HTELM. and
After David L. Thompson was charged with three drug-related
crimes, he moved to suppress evidence obtained pursuant to a
search warrant. Included in his motion was a request for the
court to hold a Franks hearing to allow him to
challenge the truthfulness of the statements in the affidavit
supporting the warrant application. To determine whether
Thompson was entitled to a Franks hearing, the trial
court (Oxford County, Clifford, J.) held a hearing
where the State examined the affiant, who was a law
enforcement officer involved in the investigation. During the
course of the State's direct examination, the court
stated that, based on its review of the affidavit and the
officer's partial testimony, it determined that Thompson
had not made a sufficient showing to warrant a full
Franks hearing, and denied his request. The court
also rejected Thompson's assertion that the warrant was
not supported by probable cause. Thompson entered conditional
guilty pleas to all charges. On this appeal, we affirm the
court's order denying that part of Thompson's motion
challenging probable cause. We conclude, however, that the
hearing conducted by the court must be treated as the
beginning of a Franks hearing. We therefore vacate
the judgment and remand for the court to hold a full hearing.
Maine Drug Enforcement Special Agent Tony L. Milligan was
involved in an investigation into the manufacture and
distribution of methamphetamine. In February 2014, Milligan
submitted a consolidated application seeking search warrants
for four residences, including Thompson's residence in
Gilead, which he shared with his son, Mico
Thompson. The fifty-page affidavit supporting the
application describes conduct and circumstances involving
Thompson, Mico Thompson, and six other people allegedly
involved in illegal drug activity.
The affidavit contains the following information concerning
Thompson. Three unnamed people ("sources of
information" or "SOI") told Milligan that
Thompson was involved in the manufacturing of
methamphetamine. SOI #1 previously provided the Maine Drug
Enforcement Agency with drug trafficking information that was
independently confirmed. Amanda Thompson, who is
Thompson's daughter and herself makes methamphetamine,
told SOI #1 that Thompson and her brother, Mico, were
involved in producing methamphetamine in the basement of
Thompson's Gilead residence. The affidavit made reference
to an audio-recorded controlled purchase of methamphetamine
by SOI #1 from a third person, who was also a subject of the
warrant application. Milligan stated in the affidavit that
during the transaction, the third person "indicated to
SOI #1 that he was the main distributor for AMANDA THOMPSON .
. . and of his association with others ... that are also
making and selling methamphetamine- ... [including] MICO
THOMPSON and his father in Gilead."
As recited in Milligan's affidavit, two other SOIs also
reported that Mico Thompson's father, whose name they did
not know, was involved in the production of methamphetamine.
SOI #3, who had provided truthful information to law
enforcement in the past, stated that methamphetamine was
being produced in Mico Thompson's father's basement,
although the affidavit does not describe the underlying basis
for the information. SOI #4 is a "concerned
citizen" who provided information about the production
and trafficking of methamphetamine to assist law enforcement,
and acquired information about Thompson's involvement in
methamphetamine production through conversations with a
co-worker who is "a regular methamphetamine
customer." SOI #4 reported other details, including
Thompson's use of the "shake and bake"
production method, his willingness to trade methamphetamine
for commercial ingredients used in the production process,
and his place of employment.
Through the investigation, Milligan learned that Mico
Thompson's father's name is David Thompson and, by
happenstance, subsequently saw Thompson at a local business.
Milligan followed Thompson and saw him meet Amanda
Thompson's boyfriend. Milligan made "observations
[that] were consistent with that of an apparent drug
transaction" between the two.
The warrant applications were granted in early February 2014
by a District Court judge [Carlson, /.), serving as
the reviewing magistrate, and several days later police
executed the warrant and conducted the search. Thompson was
subsequently charged by criminal complaint and, in April
2014, by indictment for two counts of aggravated trafficking
in scheduled drugs (Class A), 17-A M.R.S. §
1105-A(1)(B)(1) (2015),  and one count of conspiracy to commit
aggravated trafficking in scheduled drugs (Class B), 17-A
M.R.S. §§ 151(1)(B), 1105-A(1)(B)(1) (2015).
Thompson pleaded not guilty.
Thompson filed a motion for sanctions based on allegations of
discovery violations by the State. See M.R. Crim. P.
16(d). In the motion, Thompson sought dismissal
of the charges or a court order prohibiting the State from
presenting certain evidence. The court ultimately denied the
Thompson also filed a motion to suppress evidence, asserting
that the information in the warrant affidavit was not
sufficient to support a finding of probable cause and that
the affidavit included intentional or knowing misstatements
or misstatements made in reckless disregard of their truth.
Based on the latter ground, Thompson requested that the court
hold a testimonial Franks hearing. He later filed a
"supplemental motion" that elaborated on his
allegations that the warrant affidavit contained
misstatements. In response, the State filed a
"[consolidated [m]otion" to deny the motion to
suppress and the request for a Franks hearing.
In January 2015, over objections of both parties, the court
held a testimonial hearing associated with Thompson's
suppression motion. At the beginning of the hearing, the court
stated that it wanted to hear testimony from Milligan, and
that the purpose of the hearing was for the presentation of
evidence that would allow it to determine whether Thompson
was entitled to a Franks hearing:
And the reason I'm doing this, I think... the most
efficient way for me to get a grasp as to whether or not
there was an entitlement to a Franks hearing is to listen to
the affiant go through the affidavit to point out the
information on which he ...