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State v. Kanaris

Superior Court of Maine, Kennebec

March 20, 2019

STATE OF MAINE
v.
ALEX KANARIS, Defendant

          ORDER ON DEFENDANT'S MOTION TO SUPPRESS

          Robert E. Mullen, Deputy Chief Justice

          The defense has moved to suppress "any and all evidence" seized as a result of the search warrant issued in this matter upon grounds that the warrant issued was without sufficient probable cause and in violation of the Fourth Amendment to the United States Constitution as well as that of the State of Maine Constitution. The State has objected. The Court makes the following Findings of Fact and Conclusions of Law upon which the Order set out below is based:

         1. At the outset, the undersigned recognizes that the Court must give great deference to the issuing magistrate, i.e. courts must give the supporting affidavit a positive reading and review the affidavit with all reasonable inferences that may be drawn to support the magistrate's determination. State v. Estabrook, 2007 ME 130, ¶ 5, 932 A.2d 549. Whether probable cause exists for a warrant to issue must be evaluated solely within the four corners of the affidavit. State v. Johndro, 2013 ME 106, ¶¶ 9, 12, 82 A.2d 820. The Court should draw all reasonable inferences from the affidavit to support a finding of probable cause, and limit any inquiry to whether there is a substantial basis for the finding of probable cause under the totality of the circumstances test. Such a test requires "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit... including the veracity and basis of knowledge of persons supplying the hearsay information, 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, ¶ 8, 890 A.2d 703.

         The following facts are taken from MDEA Special Agent Todd Chilton's Affidavit and Request for a Search Warrant dated April 2, 2018:

         2. MDEA made three controlled purchases of cocaine HCL, cocaine base, and heroin from Maurice Wilson ("Wilson") on January 8, 2018, January 29, 2018, and March 1, 2018. Statement of Probable Cause ¶ 1 (SPC). The reader is not told where these controlled purchases were made.

          3. On March 19, 2018, while under surveillance, Wilson stepped outside 38 Water Street, Apartment 2 in Augusta and got into a vehicle that was later stopped. SPC ¶ 1.

         4. MDE A later learned that Apartment 2 is rented by a John Rolfe ("Rolfe"), date of birth 6/6/48.[1] SPC ¶ 1. After leaving the vehicle, Wilson was arrested on three counts of aggravated trafficking and told Special Agent ("SA") Chilton that he sold drugs to support his habit. SPC ¶ 2. There is no mention in the affidavit that Wilson conducted any sort of drug activity while at 38 Water St, Apartment 2.

         5. On April 2, 2018, SA Walker was informed by staff at the Augusta Inn that Rolfe[2] rented a room on March 30 ("Room 209") and paid cash for each night. SPC ¶ 3. The staff advised SA Walker of "what they believed to be drug activity." SPC ¶ 3. There is no further description in the affidavit of what the staff members observed, heard, smelled, or any other facts that led them to believe this. The reader also doesn't know if "staff" is one, two, or more persons.

         6. Andrew Redmond ("Redmond") paid cash for Room 209 while Rolfe was still occupying it for the night of April 2. SPC ¶ 3. Through his training, education, and experience, SA Chilton knows that drug traffickers often rent hotel rooms to conduct their business in order to "keep the spotlight off their residences." SPC ¶ 3.

         7. MDEA conducted surveillance of Room 209 and the vehicles and people associated with it.[3] SPC ¶ 4. MDEA observed Rolfe, Redmond, Alex Kanaris ("Kanaris") and Krystal Clark ("Clark") coming and going from the room. SPC ¶ 4. Kanaris's home address is 396 Pond Road in Sidney, Maine and MDEA "has received information" that he has been selling drugs from his residence. SPC ¶ 4. There is no explanation in the affidavit of how MDEA received this information or what the information specifically was, such as when the sales were made, etc.

          8. Clark was on Conditions of Release entered December 1, 2017 for a Violating Conditions of Release charge and her home address listed on the conditions is the same address as Kanaris's. SPC ¶ 7. Nothing in the affidavit explains what her conditions of release are or how she violated her prior conditions. After checking a law enforcement computer system, SA Chilton found that Redmond was arrested by State Police on March 1, 2017, for Unlawful Possession of Scheduled Drugs. SPC ¶ 7.

         9. During surveillance, Rolfe, Redmond, and Kanaris left the Room and got into a blue Hyundai Elantra[4] driven by Redmond. SPC ¶ 4. Before Redmond left the parking lot, SA Chilton saw him "pull out a silver pipe, which is commonly used to smoke illegal substances, to include but not limited to [crack]." SPC ¶ 4. The affidavit does not state whether SA Chilton observed him pack or use the pipe with any sort of substance. At some point, Clark left Room 209 and got items from the trunk of Kanaris's car.[5] SPC ¶ 5. She put on perfume, pulled out a roll of toilet paper from the trunk, and pulled out a clear plastic baggie from inside the toilet paper roll which she put in her purse that she also got out of the trunk. SPC ¶ 5. She brought the toilet paper roll and the purse back inside Room 209. SPC ¶ 5.

         10. Later that night, around 7:30 p.m., Rolfe left the Augusta Inn in the Hyundai. SPC ¶ 6. He drove to Washington Street in Augusta, picked up a man who sat in the front seat, drove around the block, dropped the man off at me same spot he had picked him up at, and then returned to Room 209. SPC ¶ 6. Through his training, education, and experience, SA Chilton knows that drug traffickers often pick up drug users, drive around the block, and conduct their business in the vehicle. SPC ¶ 6.

         11. SA Chilton spoke with Detective Matt Estes of the Augusta Police Department who supplied him with the following information.[6] SPC ¶ 8. On February 16, 2018, CI#2[7] informed Detective Estes that he/she observed Redmond in an Augusta apartment with heroin and cocaine base, and watched numerous drug transactions occur when individuals arrived at the residence. SPC ¶ 8. On March 19, 2018, CI#2 informed Detective Estes that he/she saw Redmond arrive at the same Augusta apartment, and Redmond again had heroin and cocaine base. SPC ¶ 8. CI#2 observed a couple grams of cocaine and heroin that amounted to a size a little bigger than a golf ball. SPC ¶ 8. Through Detective Estes' training, education, and experience, this equated to at least an ounce of heroin. SPC ¶ 8. CI#2 told Detective Estes that Redmond started bagging up the drugs when he got to the apartment, and that he arrived in a rental vehicle.[8] SPC ¶ 8.

         12. Finally, during surveillance, SA Richards told SA Chilton that Rolfe left the Augusta Motor Inn and drove to Green Street in Augusta, where he observed a man approach the driver's side window, and "an exchange took place, which is consistent with a transaction of scheduled drugs." SPC ¶ 9. Based on the totality of the information, SA Chilton believed that the illegal sale and distribution of scheduled drugs was occurring at Room 209 by Rolfe, Redmond, Kanaris, and Clark. SPC ¶ 10. Specifically, he based his conclusion on the following:

[a] known drug trafficker was arrested after leaving John Rolfe's Apartment on March 19th. Rolfe has now rented a hotel room within a few miles of his residence and based on my Training, Education and Experience this is indicitive [sic] to avoid detection of his residence where illegal drugs have been sold. Additionaly, [sic] seen with Rolfe in Room 209, on this date, were Kanaris and Redmond who MDEA have received information about in the illegal sale of scheduled drugs, and Rolfe was seen exiting this room and engaging what my Training, Education and Experience is consistent with a transaction of scheduled drugs.

SPC ¶ 10. The remainder of the affidavit is a description of SA Chilton's training, education, and experience, and boilerplate regarding what drug traffickers commonly keep on their persons or near them in their vehicles or residences. SPC ¶¶ 11-12. The warrant was reviewed by an Assistant Attorney General, SPC ¶ 13, and subsequently signed by a judge on April 2, 2018.

         13. The first question the undersigned has to answer is did the four corners of the affidavit contain sufficient probable cause for a search warrant to issue? The affidavit must be read in a positive light in support of the warrant, and the reviewing court must "consider all reasonable inferences that may be drawn from information in the affidavit." State v. Samson, 2007 ME 33, ¶ 11, 916 A.2d 977.

         14. An "officer's personal knowledge of facts and circumstances, in combination with any reasonably trustworthy information conveyed to them" is enough for the existence of probable cause when a reasonable person would believe that evidence of a crime was to be seized. State v. Higgins, 2002 ME 77, ¶ 21, 796 A.2d 50 (citing State v. Kennedy, 645 A.2d 7, 9 (Me. 1994)). In determining the existence of probable cause, the judicial officer "must rely on 'factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act.'" State v. Samson, 2007 ME 33, ¶ 11, 916 A.2d 977 (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983) (alteration omitted)).

         15. For probable cause to exist, "the warrant affidavit must set forth some nexus between the evidence to be seized and the locations to be searched." Samson, 2007 ME 33, ¶ 15, 916 A.2d 977. The nexus does not have to, and often will not, "rest on direct observation, but rather can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide evidence of a crime." Id. ¶ 15 (quoting United States v. Feliz, 182 F.3d 82, 88 (1st Cir. 1999) (alterations omitted). Despite an affidavit's deficiency in certain areas, probable cause may still be established. State v. Rabon, 2007 ME 113, ¶ 23, 930 A.2d 268.

         16. Neither the State nor the Defendant originally addressed the fact that the affidavit and Request for a Search Warrant lists two different date of births ("DOB") for Rolfe. The reason that the discrepancy in the DOBs is significant is because part of SA Chilton's probable cause determination was based on a known drug trafficker leaving the "older" Rolfe's apartment. However, the probable cause is also based on Rolfe (presumably the younger, because of the description of persons and places to be searched) renting the hotel room within a couple miles of his residence. If these are two different John Rolfes, the probable cause determination becomes more problematic and the nexus between the evidence and the hotel room is weakened.

         17. No caselaw in Maine could be found regarding typographical errors in search warrants, nor could anything substantial be found within the jurisdiction of the First Circuit.[9] However, the Maryland Court of Appeals[10] considered an analogous, but not identical, "typo" issue in a search warrant. There, on April 15, 2004, the officer applied for a search warrant of the defendant's premises, person, and things, and a judge granted it on the same date. Greenstreet v. State, 898 A.2d 961, 964 (Md. 2006). Regarding probable cause to support the warrant's issuance, the affidavit made reference to a trash seizure of the defendant's residence on 04-14-03, in which drug packaging and residue was found. Id. at 965. At the motion to suppress hearing before the trial court the defendant argued, and the State conceded, that the warrant was facially stale "because the affidavit indicated that the trash seizure was executed (14 April 2003) more than one year before the warrant's issuance (on 15 April 2004)." Id. at 966.

         18. The State argued that it was a typographical error, and that if the officer was allowed to testify, he would have stated mat he intended the date in the affidavit to be 2004. Id. at 967. Ultimately, the trial court determined that it could not consider information outside the four corners of the affidavit, and granted the defendant's motion to suppress. Id. at 968. In addressing the good faith exception argument that the State made, the trial court concluded that the rule "was not applicable because the police officer lacked an objective, reasonable good faith basis to believe that the warrant was issued properly by the District Court judge due to the facial staleness of probable cause. In addition, the hearing judge found that the officer "was reckless in preparing the application.'" Id.

         19. The State then appealed to the Court of Special Appeals[11] arguing that the judge that signed the warrant could have concluded from the four corners of the affidavit that trash seizure was actually April 14, 2004, meaning that probable cause existed and the warrant was not stale. Id. at 968. The Court of Special Appeals reversed the judgment of the trial court, determining that probable cause existed within the four corners of the affidavit after it had "looked to a number of cases from foreign jurisdictions to support the proposition that if the affidavit contained an identifiable and certain clerical error, such as a date material to the probable cause finding, the warrant should not be vitiated."[12] Id. at 969.

         20. Upon the defendant's appeal, Maryland's highest court determined that it was error for the intermediary appellate court to infer "that the issuing judge recognized the purported typographical error in the affidavit, ignored it, and found a substantial basis to support her finding of probable cause based upon a trash search conducted on 14 April 2004, rather than 14 April 2003." Id. at 972. This is because

[c]lose review of the affidavit supporting the warrant is the purpose of the warrant process itself. To countenance otherwise is to degrade the purpose of requiring a magistrate or judge to review and issue warrants. A reviewing court does not rewrite deficient or inaccurate warrants after the search has been executed, especially where there is no evidence the issuing judge noticed the problem and, in any event, failed to correct it when appropriate to do so.

Id.

          21. In short, the affidavit did not present enough "internal, specific, and direct evidence from which to infer a clear mistake of a material date upon which the affiant police officer depended for probable cause." Id. at 973-74. The Court of Appeals ultimately affirmed the trial court's conclusion that the affidavit did not provide a substantial basis for a probable cause finding because of staleness. Id. at 974.

         22. Because so much of the caselaw regarding typos of dates creates staleness issues, this is what most cases interpreting Greenstreet have focused on. The present case is different because it is not merely a single years' difference in a date, but instead an entirely different month, day, and year, creating an age gap of 39 years. Despite this, this Court could undertake a similar analysis and determine if within the four corners of the affidavit there is enough to disregard the inconsistency.

         23. The undersigned determines that there is not. The only thing that suggests that the 71-year old Rolfe that rented the apartment is the same 39-year old Rolfe present at the Augusta Inn is one line in SA Chilton's affidavit in which he states a known drug trafficker was arrested after leaving the apartment, and now Rolfe has rented a hotel room. Nothing suggests that the MDEA even caught this discrepancy in ages and accounted for it in any way, or whether the judge issuing the search warrant caught this issue, clarified it, and approved the warrant based on the clarification while the officer was still under oath.

         24. Because of the above analysis, any inferences that could be made to support probable cause based on Wilson, a known drug trafficker, leaving the older Rolfe's apartment, cannot be used to support the issuance of the warrant to search Room 209, rented by the younger Rolfe.

         25. Accordingly, the next question for the Court to consider is, without considering Rolfe's link to 38 Water Street Apartment 2, is there enough regardless in the affidavit to establish probable cause? Without considering Wilson's tie to the older Rolfe, the younger Rolfe is not associated to the known drug trafficker, Wilson. Nor could it be considered that it is the same Rolfe that is even occupying Room 209, thereby eliminating the conclusion that Rolfe is renting the Room only a few miles from his residence in order to "keep the spotlight off his residence." This is a damaging blow to the nexus element required for a finding of probable cause in this case. Therefore, the only ties to drug activity occurring in Room 209 would be the following:

• Hotel staff reporting "what they believed to be drug ...

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