Opinion
SUPERIOR COURT DOCKET NO. CR-18-539
11-30-2018
STATE OF MAINE v. KARON BAKER, Defendant
STATE OF MAINE
KENNEBEC,SS. 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 A2d 255, citing Duncan v. Robbins, 159 Me. 339, 193 A2d 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 A2d 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 comers of the affidavit to determine the existence of probable cause . State v. Appleton, 297 A2d 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 US 213. 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 A2d 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 ME77, 796 A2d 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 lthe truth. US v. Barnard, 299 F3d 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 F3d 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 13.
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 trained drug detection dog was used to detect the presence of a controlled substance on the person of the defendant. Baker was then taken to the bathroom where illegal drugs where found in his underwear.
The defendant alleges that the officer placed his hands "down the defendant's pants, inside defendant's underwear, touching, grabbing and moving the defendant's genitalia' which he says can only be described as an unlawful search and seizure. This description of the activities is denied by the officers. Nevertheless, an examination of the totality of the circumstances makes it clear that the probable cause to search defendant's person resulting in a valid warrant authorized a continuim of activities validating the search of his person in the apartment. The detention was lawful, the movement to the apartment in conjunction with the execution of the warrant was necessary for the protection of the defendant, the probable cause furnished by the canine was appropriate and the examination of the underwear was consistent with the probable cause. See State v. Cooper, 2017 ME 4.
Defendant's motion to suppress is DENIED. Clerk may docket by reference. November 30, 2018
/s/_________
JUSTICE, SUPERIOR COURT
Entered on the docket 12/5/18