The opinion
“he
STATE OF MAINE coe OD SUPERIOR COURT
> gS Cee in CRIMINAL ACTION
KENNEBEC, ss. Sinn Pe be DOCKET NO. CR-99-158
son 2 2000 DM -iEN-&]81 lacce’
STATE OF MAINE lets vat
‘S wes OMe
v. Kenney ORDER ON MOTION
TO SUPPRESS
ROBERT L. GILBERT,
ee
Defendant
This matter is before the court on defendant’s motion to suppress. On May 4,
1999, a detective of the Augusta Police Detective presented an affidavit and a request
for search warrant to a judge of the Maine District Court. The oath on the affidavit
was acknowledged by that same judge. The judge then issued a daytime search
warrant at 4:30 p.m. The search warrant was founded upon the 48 paragraph
affidavit describing facts and circumstances going back to August of 1996. Execution
of the search warrant resulted in interrogation of the defendant which, after
Miranda warning, caused the acquisition of contraband and admissions by the
defendant. Defendant challenges the probable cause for issuance of the warrant as
well as voluntariness of his statement.
Defendant argues that the information in the affidavit is stale, that it relates
to activities taking place over a number of years which should not be the basis for a
search warrant as not valid at the time of its issuance. He argues that much of the
information is irrelevant, that individuals named in the affidavit are not shown to
be reliable as lacking corroboration in their statements anc that no specific
references were made to the defendant with regard to the illegal activities.
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e
Obviously, the State argues that there is sufficient probable cause to obtain a warrant
and conduct a search, that this is based in part upon the defendant’s criminal history
and that the previous investigations, while some years back, give credence to the
contemporary grounds for the issuance of the warrant, that is, to controlled
purchases of contraband. The State argues that the totality of the circumstances were
sufficient for the District Court Judge who madeamodifications in the warrant based
upon the affidavit by removing the ability to search employees of the defendant,
substituting therefore, consistent with the affidavit, the daughter of one of the
targets.
The court examines the challenge to the search warrant by looking at the four
corners of the aftidavit and warrant. State v. Thornton, 414 A.2d 229, 233 (Me. 1980);
State v. Appleton, 297 A.2d 363, 367 (Me. 1972). Appropriate deference is given to
the officer authorizing the warrant. State v. Friel, 508 A.2d 123, 127 (Me. 1986); State
v. Rand, 430 A.2d 808, 817 (Me. 1981); State v. Diamond, 628 A.2d 1032, 1033 (Me.
1993). The court must examine the document to determine whether there is a
substantial basis for the probable cause determination of the issuing Magistrate.
State v. Crowley, 1998 ME 187, 7 4,714 A.2d 834, 836; State v. Ward, 624 A.2d 485, 487
(Me. 1993); State v. Veglia, 620 A.2d 276, 278 (Me. 1993); State v. Knowlton, 489 A.2d
529, 532 (Me. 1985). Probable cause
merely requires that the facts available to the officer would ‘warrant a
man of reasonable caution in the belief’ ... that certain items may be
contraband or stolen property or useful as evidence of a crime; it does
not demand any showing that such a belief be correct or more likely
true than false. A ‘practical, nontechnical’ probability that
incriminating evidence is involved is all that is required.
2
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> Texas v. Brown, 460 U.S. 730 (1983) (quoting Carroll v. United States, 267 US. 132,
162 (1925); Brinegar v. United States, 338 U.S. 160, 176 (1949)).
For purposes of examining the evidence before the court in light of
defendant's assertion of “staleness,” the court assumes that the activities giving rise
to this particular warrant commenced in May of 1999 as described in paragraph 37 on
page 18 of the affidavit. At that time, the officers became aware that an individual
known to them had purchased contraband from a supplier at a location consistent
with defendant’s place of business. Further, a purchase of contraband was effected
under conditions observed by the officers to strongly suggest the source as the
premises of the defendant. Further conversations undertaken by the officers,
monitored electronically, added additional credence to the location of the supply of
> the contraband. Approximately two weeks later, the officers conducted surveillance
of a drug buy within the defendant's premises in which the transaction was clearly
observed to be limited to the defendant, his wife, and the wife’s daughter. Presence
of the contraband was confirmed within a short period of time of the visit with the
defendant and his family.
The affidavit continues to describe the circumstances that were created by the
«« Officers to effectuate a confirmatory purchase of contraband from the defendant
under conditions described therein. The understanding clearly expressed and
related to the issuing magistrate was that the warrant would not be executed unless
the “buy” was successful. Such buy was anticipated to provide the basis for the
continuing presence of contraband on the premises. From this it could be
D 3
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reasonably inferred that if the buy was not successful, it would indicate some basis
for the conclusion that contraband was not on the premises at that particular time.
Factually, it appears undisputed, that the search warrant was executed and that it
was done immediately after a controlled “buy.”
Upon entry of the premises, the testifying officer indicated that he isolated
the defendant while other officers were conducting a search. He interviewed the
subject in the defendant's office. Admitted into evidence was a Miranda warning ©
signed by the defendant and witnessed by the officer as well as another special agent.
Testimony by both officers was that the Miranda warning was given, that the
defendant answered in the affirmative to the five questions indicating that he
understood the warning and his rights and that he nevertheless was willing to
answer questions. While it is true that the defendant was in his office with the two
officers and that, under the circumstances, it would appear de facto to constitute
custody in that at least his movements were controlled by the officers, the court is
satisfied that the defendant was advised of his rights, voluntarily waived those
rights, and cooperated with the officers. It is worthy to note that the court finds it
more likely than not that the conversation took place in a conversational manner
consistent with the testimony of the officers since the officer conducting the
interview is related by marriage to the defendant.
Therefore, even divorcing from the affidavit those entries that are not within
a month or two of the execution of the affidavit, this court still believes there is
sufficient probable cause to be found by the magistrate in issuing the warrant.
we
Further, those previous entries serve to further substantiate the knowledge on the
D part of the affiant adding further reliability and credibility to the affidavit.
For all the above reasons, the entry will be:
Defendant's motion to suppress is DENIED.
Dated: June__2¢ __, 2000
onald H. Marden
Justice, Superior Court
STATE OF MAINE SUPERIOR COURT
vs KENNEBEC, ss.
ROBERT GILBERT Docket No AUGSC-CR-1999-00158
. O. BOX 2153
Doss ME 04330 DOCKET RECORD
DOB: 02/16/1949
Attorney: SUMNER LIPMAN State's Attorney: JAMES CAMERON
RETAINED 05/07/1999
Filing Document: INDICTMENT Major Case Type: FELONY (CLASS A,B,C)
Filing Date: 05/13/1999
Charge (s)
1 UNLAWFUL TRAFFICKING IN SCHEDULED DRUGS 04/05/1999 AUGUSTA
17-A 1103 (1) Class B
2 UNLAWFUL TRAFFICKING IN SCHEDULED DRUGS 04/21/1999 AUGUSTA
17-A 1103 (1) Class B
3. UNLAWFUL TRAFFICKING IN SCHEDULED DRUGS 05/04/1999 AUGUSTA
17-A 1103 (1) Class B
4 UNLAWFUL TRAFFICKING IN SCHEDULED DRUGS 05/04/1999 AUGUSTA
17-A 1103 (1) Class B
Docket Events:
por FILING DOCUMENT - INDICTMENT FILED ON 05/13/1999
05/14/1999 SUMMONS - SUMMONS TO APPEAR FOR ARRAIGN ISSUED FOR 05/19/1999 @ 8:30
05/17/1999 HEARING - ARRAIGNMENT SCHEDULED FOR 05/19/1999 @ 8:30
05/25/1999 HEARING - ARRAIGNMENT HELD ON 05/19/1999
JOHN R ATWOOD , JUSTICE
Attorney: SUMNER LIPMAN
DA: JAMES CAMERON Reporter: CASE ENOCH
Defendant Present in Court
KAREN LIPMAN, ESQ. STOOD IN FOR ARRAIGNMENT ONLY.
05/25/1999 Charge(s): 1,2,3,4
PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 05/19/1999
MOTIONS TO BE FILED IN 21 DAYS. SAME BAIL AS SET IN THE DISTRICT COURT TO CONTINUE AND TO
TRANSFER.
05/25/1999 OTHER FILING - OTHER DOCUMENT FILED ON 05/19/1999
CONDITIONS OF RELEASE. DEFENDANT NOT TO USE OR POSSESS SCHEDULED DRUGS (UNLESS
PRESCRIPTION) AND TO SUBMIT TO SEARCH AND TESTING.
06/03/1999 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 06/03/1999
06/03/1999 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 06/03/1999
2/22 HEARING ~ MOTION TO SUPPRESS SCHEDULED FOR 09/17/1999 @ 9:00
Page 1 of 3 Printed on: 06/26/2000
ROBERT GILBERT
AUGSC-CR-1999-00158
DOCKET RECORD
22/299 NOTICE - NOTICE OF HEARING SENT ON 08/03/1999
09/17/1999 HEARING - MOTION TO SUPPRESS NOT HELD ON 09/17/1999
AS CASE WAS NOT REACHED.
10/12/1999 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 11/03/1999 @ 9:00
10/27/1999 BAIL BOND - CASH BAIL BOND FILED ON 06/15/1999
Bail Receipt Type: CR
Bail Amt: $1,000
Receipt Type: CK
Date Bailed: 06/15/1999 Prvdr Name: ROBERT GILBERT
Rtrn Name: ROBERT GILBERT
BAIL CONVESION
10/28/1999 MOTION ~- MOTION TO CONTINUE FILED BY STATE ON 10/28/1999
NO OBJECTION BY DEFENSE COUNSEL.
10/29/1999 MOTION - MOTION TO CONTINUE GRANTED ON 10/28/1999
S KIRK STUDSTRUP , JUSTICE
11/04/1999 HEARING - MOTION TO SUPPRESS CONTINUED ON 10/28/1999
12/17/1999 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 12/17/1999
por MOTION - MOTION TO CONTINUE GRANTED ON 12/17/1999
COPY TO PARTIES/COUNSEL
12/22/1999 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 01/03/2000 @ 9:00
NOTICE TO PARTIES/COUNSEL
12/22/1999 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 01/03/2000 @ 9:00
NOTICE TO PARTIES/COUNSEL
01/11/2000 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 03/13/2000 @ 9:00
NOTICE TO PARTIES/COUNSEL
03/15/2000 HEARING - MOTION TO SUPPRESS NOT HELD ON 03/13/2000
06/16/2000 HEARING - MOTION FOR DISCOVERY NOT HELD ON 01/03/2000
06/16/2000 HEARING - MOTION TO SUPPRESS NOT HELD ON 01/03/2000
06/16/2000 MOTION - MOTION FOR DISCOVERY MOOT ON 06/12/2000
ALL DISCOVERY MATTERS COMPLIED WITH BEFORE MATTER WENT TO HEARING.
06/16/2000 HEARING - MOTION TO SUPPRESS HELD ON 06/12/2000
DONALD H MARDEN , JUSTICE
Attorney: GREGG BERNSTEIN
DA: LARA NOMANI Reporter: CASE ENOCH
> Defendant Present in Court
Page 2 of 3 Printed on: 06/26/2000
ROBERT GILBERT
AUGSC-CR-1999-00158
DOCKET RECORD
06/16/2000 MOTION - MOTION TO SUPPRESS UNDER ADVISEMENT ON 06/12/2000
FILE WITH JUSTICE MARDEN
06/23/2000 MOTION - MOTION TO SUPPRESS DENIED ON 06/21/2000
DONALD H MARDEN , JUSTICE
COPY TO PARTIES/COUNSEL DEFENDANT'S
MOTOIN TO SUPPRESS IS DENIED. S/MARDEN, J.
A TRUE COPY
ATTEST:
Clerk
D Page 3 of 3 Printed on: 06/26/2000