Opinion
CR-18-5844
06-26-2019
STATE OF MAINE v. DAVIS GLAZENER Defendant
ORDER ON OMNIBUS MOTIONS TO SUPPRESS EVIDENCE AND STATEMENTS
Jed J. French, Judge
The court heard oral argument on Defendant's Omnibus Motions to Suppress Evidence and Statements on June 4, 2019. Assistant District Attorney Johanna Gauvreau appeared and argued on behalf of the State and Attorney Leonard Sharon appeared and argued on behalf of Defendant.
Defendant seeks suppression of audio recordings, and all evidence flowing from the audio recordings, on the ground that the recordings were obtained in violation of the Interception of Wire and Oral Communications Act, 15 M.R.S. § 708 et seq. There is nothing in the Act, however, which supports Defendant's assertion that a search warrant may not be predicated on a recording unless the informant or source of information who was cooperating with law enforcement in its investigation of suspected criminal activity gave express consent to be recorded.
Moreover, the only affidavit which the court has in its files in support of an application for a search warrant in this case does not mention a "recording." It describes a text message exchange between the Source of Information ["SOI"] and Defendant, which was followed by a phone call in which the SOT answered the call "and put the conversation on the speaker option so we could hear the conversation," Because the search warrants were apparently based on texts and phone calls the agent personally witnessed, the basis for Defendant's assertion that the search warrant was predicated on impermissibly obtained recordings is not clear in any event.
The court has reviewed Special Agent Gerard Brady's Affidavit which was filed in support of the agent's application to search Defendant's phone and to obtain a blood sample and/or buccal swab. The court does not have a copy of the application for the search warrant authorizing a search of Defendant's residence, and understands from the clerk that that warrant has apparently not been returned to the court. Rule 41(g) of the Maine Rules of Unified Criminal Procedure provides in pertinent part that "The warrant may be executed and returned only within 14 days after its date. Upon the expiration of the 14 days, the warrant must be returned to the Unified Criminal Docket designated in the warrant." M.R.U. Crim. P. 41(g). Defendant has not argued, and the court does not find, that the evidence obtained pursuant to the search warrant should be suppressed on the ground that the warrant was not returned to the court pursuant to M.RU. Crim, P. 41(g). The Law Court has repeatedly held that evidence obtained in a search and seizure conducted pursuant to a warrant is not subject to exclusion for failure to comply with the ministerial demands of M.R.U. Crim. P. 41(g). See, e.g., State v. Nadeau, 2010 ME 1, ¶ 50 ('The application of the exclusionary rule is reserved for 'persistent official disregard of the ministerial duties in Rule 41(d) [now Rule 41(g)]"'); State v. Ellis, 502 A.2d 1037, 1039 (Me. 1985) ("non-compliance with the ministerial demands of Rule 41(d)[now Rule 41(g)] does not invalidate the search and seizure conducted j pursuant to a warrant").
Accordingly, because there is neither a statutory nor a factual basis for Defendant's suppression motion, it is hereby ORDERED that Defendant's Omnibus Motion to Suppress Evidence and Statements is hereby DENIED.