ORDER ON DEFENDANT'S MOTION TO SUPPRESS
E. Mullen, Deputy Chief Justice
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:
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.
following facts are taken from MDEA Special Agent Todd
Chilton's Affidavit and Request for a Search Warrant
dated April 2, 2018:
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.
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.
A later learned that Apartment 2 is rented by a John Rolfe
("Rolfe"), date of birth 6/6/48. 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.
April 2, 2018, SA Walker was informed by staff at the Augusta
Inn that Rolfe 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.
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.
conducted surveillance of Room 209 and the vehicles and
people associated with it. 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.
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.
During surveillance, Rolfe, Redmond, and Kanaris left the
Room and got into a blue Hyundai Elantra 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. 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
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.
Chilton spoke with Detective Matt Estes of the Augusta Police
Department who supplied him with the following
information. SPC ¶ 8. On February 16, 2018,
CI#2 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. SPC ¶ 8.
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.
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.
"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)
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.
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.
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. However, the Maryland Court of
Appeals 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.
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.'"
State then appealed to the Court of Special
Appeals 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."
Id. at 969.
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.
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.
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.
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.
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.
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