ORDER ON MOTION TO SUPPRESS
ALLEN HUNTER, ACTIVE RETIRED JUSTICE MAINE SUPERIOR COURT.
before the court is the Defendant's Motion to Suppress.
The Defendant stands charged with two counts of Unlawful
Trafficking in Scheduled Drugs (Class B). He seeks an Order
from the court suppressing as evidence against him in any
subsequent trial any evidence obtained from a search of his
cell phone. For the reasons set forth herein, the court
denies this motion.
charges in this matter stem from two "controlled
buys" of cocaine from the Defendant. The Maine Drug
Enforcement Agency (MDEA) was investigating the Defendant for
unlawful trafficking in scheduled drugs. MDEA agents Forrest
Dudley and Joey Seeley were leading the investigation and had
secured the cooperation of a "Cooperating
Individual" (CI) to assist them in their efforts.
engaging in the usual preliminaries prior to a controlled
buy, the agents instructed their CI to make a telephone call
to the Defendant to arrange for the purchase of cocaine. On
October 23, 2016, the CI called a number that he believed to
be the Defendant's cell phone number (207-554-0428) and
made contact with the Defendant. He made arrangements to buy
a quantity of cocaine. Under the supervision and monitoring
of the MDEA agents by Electronic Transmitting Device (ETD);
the CI went to the Defendant's home in Presque Isle and
purchased what is alleged by the State to be cocaine. The
agents decided to arrange for a second purchase of cocaine
from the Defendant and again instructed the CI to telephone
the Defendant at the same number and the CI did so on October
26, 2016. The CI then went again to the
Defendant's home and completed the purchase under the
same kinds of supervision that were designed and intended to
assure the integrity of any evidence obtained.
interests of concealing the identity of the CI for as long as
they could and for purposes of preserving and promoting the
safety of the CI, consistent with MDEA's usual practice
and policy, the agents did not immediately arrest the
Defendant although they had probable cause to do so.
agents did proceed to arrest the Defendant on November 23,
2015, for the felony level offenses of Unlawful Trafficking
in Scheduled Drugs. With the express intention of immediately
arresting the Defendant, both agents went to the
Defendant's small (24' by 24') home at 70 Chapman
Street in Presque Isle on that date. They traveled there in
an unmarked vehicle. Both agents were attired in casual
clothing. They went to the front door of the home and
knocked. The Defendant responded by opening the front door.
Although he was dressed, he was not wearing shoes.
agents confirmed that the Defendant was Joseph Haley and then
identified themselves as law enforcement officers and
indicated that they were placing him under arrest for the
offense of Unlawful Trafficking of Scheduled
Drugs. The agents indicated that they would be
calling the bail commissioner so that the Defendant could be
released on an unsecured bond. They asked the Defendant if he
had $60 for the bail commissioner and the Defendant responded
that he did. The Defendant indicated that he wanted to get
his shoes; the agents agreed and stepped into the small
(10' by 10') living room area. The Defendant's
wallet and cell phone were on a coffee table a few feet away.
The Defendant picked up both his wallet and his cell phone
and put on his shoes. The agents did a quick cursory check of
his wallet for weapons and then returned it to him. The
Defendant put both his wallet and his phone into his pockets
and accompanied the agents back outside to their vehicle. The
driveway area was icy and the agents elected not to place
handcuffs on the Defendant until they got to the vehicle, at
which point they placed handcuffs on the Defendant with the
cuffs in front of his person.
agents then transported the Defendant to the Fort Fairfield
Police Department. They did not interact on the way to the
station. After arriving at the police station, the agents
provided the Defendant with his Miranda warnings and inquired
if he wished to answer questions. The Defendant indicated
that he wished to exercise his rights and declined to answer
the Defendant emptied his pockets during the standard intake
processing, it was apparent that the Defendant had his wallet
and cell phone (and some loose change) on his person. The
officers asked if the Defendant would consent to a search of
his cell phone. The Defendant did not consent. The agents
then told the Defendant that they were going to seize the
cell phone as potential evidence and that they would get a
search warrant authorizing their later search of the phone.
that the Defendant withheld consent to search of his phone,
the officers asked the Defendant if he would disclose the
"security code" for the telephone so that they
could unlock it and put it in "airplane mode"
thereby preventing any incoming data to the phone and also
preventing any deletion of data from the phone. The Defendant
consented to provide the "pass code pattern" and he
testified that Agent Dudley held the phone up for him while
he swiped his finger along the "passcode pattern"
on his own. Agent Dudley put the cell phone in
"airplane mode" but did not otherwise access its
contents. He told the Defendant that he would be seeking a
search warrant authorizing that access.
Dudley did ultimately obtain a search warrant permitting a
search of the cell phone, but he did not accomplish this
until January 5, 2017, and he did not actually
"search" the phone until January 6, 2017. When
asked why he had the Defendant's cell phone in his
possession for 43 days before seeking a warrant,
Agent Dudley in essence explained that he had been too
Dudley also testified that he was not sure if he had asked
the Defendant what his telephone number was after giving the
Defendant his Miranda warnings. It seems clear that the Bail
Commissioner did ask for all of the Defendant's contact
information and entered this information, ...