ORDER ON MOTION
Before
the court is defendant's motion to suppress the evidence
found as a result of a search warrant, dated March 27, 2018,
for the residence and premises of Jennifer Dalessandro
located at 2 Noyes Court Apartment 2, Augusta, Maine. Upon
execution of the search warrant and pursuant to its terms to
include the person of Karon Baker, the defendant was detained
and searched, illegal drugs were found and he was charged
with multiple counts of aggravated trafficking in scheduled W
drugs.
The
Fourth amendment to the Constitution of the United States
says:
"The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." The
Supremacy Clause of the Constitution of the United States
(ART VI) requires obedience by state officials to Fourth
Amendment law. State v. Hawkins, 261 A.2d 255,
citing Duncan v. Robbins, 1 59 Me. 339, 1 93 A.2d
362.
The
affidavit presented to the magistrate must contain all the
information on which the magistrate's judgment is based
as to the existence of probable cause. In State v.
Cadigan, 249 A.2d 750, it was held, in testing for the
existence of probable cause, that a reviewing court is not
permitted to travel outside the allegations contained in the
affidavit. Under Rule 41 of the Maine Rules of Criminal
Procedure, the affidavit must contain all the information in
support of the magistrate's finding of the existence of
probable cause. Neither the magistrate nor a reviewing court
can go outside the four corners of the affidavit to determine
the existence of probable cause . State v. Appleton,
297 A.2d 363, citing State v. Hawkins.
To
determine probable cause, a magistrate must apply the
totality of the circumstances approach articulated in
Illinois v. Gates 462 U.S. 21 3. Probable cause is
established when given all the circumstances set forth in the
affidavit before the magistrate it includes the
"veracity" and "basis of knowledge" of a
person supplying hearsay information, so that there is a fair
probability that contraband or evidence of a crime will be
found in a particular place. State v. Wright, 2006
ME 13, 890 A.2d 703, Courts must give the affidavit a
positive reading and review the affidavit with all reasonable
inferences that may be drawn to support the magistrates
determination. State v. Higgins, 2002 ME 77, 796
A.2d 50.
Face-to-face
contact between the agent and informant may support the
infomant's reliability. US v. Gabrio, 295 F.3d
880. Knowing the informant's identity with the ability to
hold the informant responsible if her/she provides false
information provides an incentive for the informant to tell
the truth. US v. Barnard, 299 F.3d 90. The task in
assessing the informant's credibility is not to determine
whether the informant is lying or in error so long as the
probability of a lying or inaccurate informer has been
sufficiently reduced by a respectable amount of
corroboration. Barnard, 299 F.3d at 95.
The
affidavit in question is very specific as to the place to be
searched, the persons and the vehicle. The probable cause for
the place is based upon longstanding complaints from
neighbors of large volumes of people entering and exiting the
premises at all hours of the day and night with very short
visits, starting the prior year. The officer equated this
activity with the trafficking of illegal drugs. A neighbor,
known to the officer, began a form of surveillance of the
apartment including the taking of photographs. The officer
recognized the persons in the photographs as known drug
addicts and dealers.
During
the summer of 2017 two controlled buys were made with a
person seen on the photographs at the premises. A search
warrant was obtained in August of 2017 but not executed
because the individual in question was hospitalized and died.
Both buys were performed by a confidential informant whose
reliability had been confirmed by the agent. That dealer had
advised the informant that the apartment in question was his
"crib", place of residence. Officers observe the
suspect entering and exiting the named premises.
Since
that time, the activity observed at the address had continued
off and on. A separate unnamed cooperating individual
provided a face-to-face and detailed description of the
activities inside the apartment in question including the
source of the drugs, the kind of drugs, the person who brings
the drugs to the location, the sales taking place and the
persons buying the drugs. Included in the information, was
the specific identity of a person matching the description of
the defendant herein. The affiant knew the person, identified
as the defendant herein, to be one convicted of drug
activities in another jurisdiction. He had been seen by the
affiant coming and going from the premises in question
multiple times in the preceding four months.
The
officer concluded that he found probable cause that drugs are
present in 2 Noyes Court, apartment 2, and the persons named
doing business in that location are personally known; most
specifically, that this defendant is responsible for bringing
the drugs into the State to that apartment. He bases his
conclusion on the controlled buys, the complaints from the
neighbors, the amount of traffic in and out of the apartment,
and the observations of the cooperating individual of the
activities in the premises.
The
defendant challenges the reliabillity of the second
confidential informant because the affidavit is silent as to
any efforts by the officer to corroborate his/her
truthfulness. However, because the second informant's
information is entirely consistent with that of the initial
informant in 2017, whose reliability had been confirmed by
the officer, that information is to be worthy of belief. To
the extent the present information cannot rely on the 2017
experience because that information is stale,
"staleness" is not determined simply by the passage
of time but determined by the circumstances of the case.
"'Stale' information may be considered in
conjunction with the affidavit as a whole and may be
freshened by the other corroborating statements in
the affidavit, (emphasis supplied), State v. Wright,
2006 ME 1 3.
Finally,
the affiant/officer explains his relevant training and
experience in this area including graduation from the Maine
Criminal Justice Academy, 7 years a patrol officer, three
years a detective, all with the Augusta Police Department,
drug detection and investigation training in the Academy,
MDEA Basic Drug Investigation School training, personal
searches, seizures and observations of ilegal drugs, later
confirmed, and personal participation in the apprehension,
prosecution and conviction of persons trafficking in drugs.
Considering
the totality of the circumstances, the general information
from neighbors of the apartment in question, persons whose
observations were corroborated by photographs and
observations by two officers, the two informants, one
participating in the two controlled buys and the other with
specific and detailed descriptions of the activities therein,
the knowledge of the individuals named in the affidavit
coming from years with the Department and formalized training
and the personal knowledge of the characteristics of the drug
trade, it is the court's finding that sufficient facts
constituting probable cause was presented to the magistrate
for a finding sufficient to authorize a Constitutionally
lawful search warrant.
The
officer's training and experience as recited in the
affidavit provided him a conclusion that a person's
habituation of a residence where there is probable cause to
believe there is unlawfuil drug activity couple with a
knowledge of prior drug offenses validated the inclusion of
this defendant in the warrant as a person to be searched. On
the date the warrant was to be executed, the defendant was
seen leaving the apartment and was stopped on the street some
distance away after continuous surveilance. A pat down was
performed but a more thorough search could not be conducted
because the scene was a sidewalk on a public street. Having
detained Mr. Baker, the officers returned with him to the
apartment at 2 Noyes Court. A properly ...