The opinion
KENNEBEC SUPERIOR couRT CRIMINAL ACTION:
KENNEBEC, ss. - Mag 14 2001 DOCKET NO. CR-09-402
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DAM KEN- 3/4 [2001
NANCY DESJARDIN
STATE OF MAINE GLERK OF COURTS
Vv. ORDER ON MOTION
TO SUPPRESS
TROY CORBIN,
Defendant
This matter is before the court on defendant's motion to suppress. Defendant
has been indicted for class B marijuana cultivation and class C conspiracy to
cultivate marijuana. Defendant seeks to suppress the product of a search conducted
in execution of a warrant on a mobile home owned by another in which the
defendant was living and, also, to suppress statements made by the defendant as
fruits of illegal search.
On September 22, 2000, a sergeant with the Kennebec County Sheriff's Office
presented to a Maine District Court Judge an affidavit and request for search warrant
at the residence and premises of one Shane L. Wood in the town of Vassalboro. The
premises contained a double-wide mobile home, a separate brown mobile home
accessed by a driveway from a nearby highway, and a white mobile home also
accessed by the other highway. The request also sought permission to search any
vehicles driven or registered to Shane L. Wood or persons of vehicles arriving
during the execution of the warrant and any out buildings on the premises.
Property to be searched for included controlled drugs, most specifically marijuana,
paraphernalia and other related items. As a result of the affidavit and request, a
search warrant was issued by the District Court Judge at 4:15 p.m. on September 22,
2000, authorizing the search for the property as described on "premises owned and
or occupied by Shane L. Wood dob: 02/13/67." The warrant further directed that it
be executed in the daytime and returned with inventory within 10 days.
A few days later the search warrant was executed. It is stipulated between the
State and the defendant that at the time of the execution of the search warrant, the
defendant, Troy Corbin, was living in the white mobile home accessed from the
Cross Hill Road. It was further stipulated that the search of the mobile home
continued even after the officers became aware that it was Mr. Corbin's residence.
The defendant argues that the consequence of the discovery by the officers
that the mobile home was the residence of the defendant rather than an unoccupied
structure caused the search to be a warrantless search and that there did not exist
probable cause to search the "residence of Troy Corbin." Defendant relies upon the
decision of the United States Supreme Court in Maryland v. Garrison, 480 U.S. 79,
107 S.Ct. 1013, a 1987 case. In response, the State argues that it is not required to
identify or be limited to the residential or nonresidential status of a dwelling
provided there exists sufficient probable cause for the search and the identification
of the structure is correct and consistent with the warrant. While, on its face, the
issue seems to be centered on whether the identification of the premises to be
searched is proper, it is this court's interpretation that the real issue is whether there
existed probable cause with respect to the premises in question notwithstanding an
unanticipated residency of a seeming innocent party.
In 1978, the United States Supreme Court decided the case of Zurcher v.
Stanford Daily, 436 U.S. 547 (1978). This case involved the execution of a search
warrant on the offices of a student newspaper in order to obtain photographic
evidence of assaults on police officers taking place in a violent occupation of a local
hospital. The Supreme Court reversed the decision of the Court of Appeals by
holding that the Fourth Amendment is not a barrier to warrants to search property
"on which there is probable cause to believe that fruits, instrumentalities, or
evidence of crime is located, whether or not the owner or possessor of the premises
to be searched is himself reasonably suspected of complicity in the crime being
investigated." Id. at 549-50. The Court goes on further to say, "Under existing law,
valid warrants may be issued to search any property, whether or not occupied by a
third party, at which there is probable cause to believe that fruits, instrumentalities,
or evidence of a crime will be found. Id. at 554. Finally for our purposes, the Court
goes on, "Search warrants are not directed at persons; they authorize the search of
‘places[s]' and the seizure of 'things,' and as a constitutional matter they need not
even name the person from whom the things will be seized." In so holding, the
Court cited United States v. Kahn, 415 U.S. 143, 155 n.15 (1974).
The Kahn case involved a wire tap order which was challenged as amounting
to a "virtual general warrant” without the necessary specificity. The court
concluded that the federal wire tap law required the naming of a person in the
applicable or interception order, "only when the law enforcement authorities have
probable cause to believe that the individual is 'committing the offense" which the
wire tap is sought. Id. at 156. In its footnote on that page, the Court suggests an
analogy in challenging the "general warrant" argument of the appellant. The
footnote goes on to say:
If a warrant had been issued, upon a showing of probable cause, to
search the Kahn residence for physical records of gambling operations,
there could be no question that a subsequent seizure of such records
bearing Minnie Kahn's handwriting would be fully lawful, despite the
fact that she had not been identified in a warrant or independently
investigated. In fact, as long as the property to be seized is described
with sufficient specificity, even a warrant failing to name the owner of
the premises at which a search is directed, while not the best practice,
has been held to past muster under the Fourth Amendment.
The Court citing Hanger v. United States, 398 F.2d 91, (8th Cir.) and others. The
footnote also directs the reader's attention to United States v. Fiorella, 468 F.2d 688
(2nd Cir.), "The Fourth Amendment requires a warrant to describe only 'the place to
be searched, and the person or things to be seized,’ not the persons from whom
things will be seized."
Subsequent to Zurcher, the Supreme Court decided Garrison in 1987. In that
case, the officers had a warrant to search, "The person of Lawrence McWebb and 'the
premises known as 2036 Park Avenue, third floor apartment." When the police
arrived to execute the warrant, they discovered that the third floor, in fact, had two
apartments, one occupied by McWebb and the other by the defendant Garrison.
After concluding that the officers clearly did not have a warrant to search the
apartment of Garrison, the court sustained the refusal to suppress on the grounds of
the good faith of the officers in making every attempt to determine the appropriate
premises and innocently finding themselves in the wrong apartment. Defendant
suggests that the instant circumstances do not contain evidence of good faith on the
part of the officers inasmuch as they continued the search of the mobile home
notwithstanding their new discovery that it was the residence of this defendant
rather than simply owned or occupied by the target of defendant. Defendant further
argues that the fact that Zurcher is not cited in the Garrison case suggests that
Zurcher is more limited in its scope and effect than would be appropriate in a
mistaken identity case. Defendant also cites McGlinchey v. Barrows, 41 Me. 74, an
1856 case, for the proposition that, "A warrant to search the dwelling house of a
person, only authorizes the officer to search the house in which such person lives;
and if he searches a house hired and occupied by another, though owned by such
person, he is guilty of trespass.”
The court is satisfied that Garrison and McGlinchey are cases decided on the
matter of identification of the premises to be searched and are fully consistent with
Zurcher, in that Zurcher, and the case at hand, have no infirmity to the
identification of the premises in question, thereby rendering Garrison and
McGlinchey inapplicable. It is undisputed that the search was executed at the mobile
home owned by Mr. Wood and precisely the appearance and location as described. It
is also clear that the warrant authorized the search of the premises owned and/or
occupied by Mr. Wood. The relevancy as to whether it may be occupied by another
is questionable. Further, probable cause created by the many facts outlined in the 14-
page affidavit and request for search warrant clearly articulated that the justification
of the search of the mobile home was premised, to a large degree, upon the alleged
activities of Mr. Wood within that mobile home and not dependent upon Mr.
Wood being in residence in that mobile home or personally occupying that mobile
home. Further, there is a representation in the affidavit of information that there
. would be another person, a stranger to the process, who occupied one of the three
mobile homes in question and whose job was to tend to the contraband sought by
the warrant. Therefore, the probable cause related to the precise location to be
searched notwithstanding any other status that might exist at the time of the search,
including the fact that this defendant was in residence in that mobile home.
This must be distinguished from the circumstances in McGlinchey in which
it was clear that the target of the search warrant was the store and home of the
accused for purposes of keeping illegal alcohol in accordance with the stated facts of
probable cause. When the officers searched the premises of another person,
notwithstanding its part of the same building, they had no probable cause to conduct
that search.
As so in Garrison: the officers had no probable cause to search the apartment
of Mr. Garrison even though it occupied part of the third floor of the building where
the officers did have probable cause to search the apartment of Mr. McWebb. In the
instant case, nothing about the residency of Mr. Corbin removed the probable cause
existent in the officers for purposes of the warrant.
It is understood by the court that the statements by the defendant against self
interest made during the course of the search are sought to be suppressed as being
the fruits of an illegal search. Inasmuch as the court has found the search to be
lawful and will deny the motion to suppress the products of the search, to the extent
the defendant seeks suppression of his confession solely on the grounds of the status
of the search, that suppression should be denied as well.
For all the reasons stated herein, the entry will be:
Defendant's motion to suppress is DENIED.
Dated: March (7% ,2001 - <EFKE eC
Donald H. Marden
Justice, Superior Court
wirid dog WL Prasad
VS KENNEBEC, Ss.
TROY CORBIN Docket No AUGSC-CR-2000-00402
RR 1 BOX 104 KNOWLES ROAD
3LGRADE ME 04917 DOCKET RECORD
DOB: 07/05/1973
Attorney: SUMNER LIPMAN State's Attorney: LARA NOMANI
RETAINED 12/11/2000
Filing Document: INDICTMENT Major Case Type: FELONY (CLASS A,B,C)
Filing Date: 12/11/2000
Charge (s)
1 MARIJUANA CULTIVATION 09/25/2000 VASSALBORO
17-A 1117(2) (A) Class B
2 CONSPIRACY TO COMMIT A CLASS B CRIME 09/25/2000 VASSALBORO
17-A 151(1) Class C
Docket Events:
12/12/2000 FILING DOCUMENT - INDICTMENT FILED ON 12/11/2000
12/12/2000 Charge(s): 1,2
HEARING - ARRAIGNMENT SCHEDULED FOR 12/19/2000 @ 8:15
12/12/2000 Charge(s): 1,2
SUMMONS -~ SUMMONS TO APPEAR FOR ARRAIGN ISSUED FOR 12/12/2000 @ 8:15
12/14/2000 ATTORNEY - RETAINED ENTERED ON 12/11/2000
Attorney: SUMNER LIPMAN
ATTORNEY FOR PARTY 002 DEFENDANT
12/19/2000 Charge(s): 1,2
HEARING - ARRAIGNMENT SCHEDULED FOR 12/19/2000
NOTICE TO PARTIES/COUNSEL
12/20/2000 Charge(s): 1,2
HEARING - ARRAIGNMENT HELD ON 12/19/2000
NANCY MILLS , JUSTICE
Attorney: SUMNER LIPMAN
DA: ALAN KELLEY Reporter: JANETTE COOK
Defendant Present in Court
READING WAIVED. DEFENDANT INFORMED OF CHARGES. COPY OF INDICTMENT /INFORMATION GIVEN TO
DEFENDANT. 21 DAYS TO FILE MOTIONS
ANDREW BENSON, AAG STOOD IN AT ARRAIGNMENT
FOR LARA NOMANI, AAG.
12/20/2000 Charge(s): 1,2
PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 12/19/2000
12/20/2000 BAIL BOND - CONDITIONS OF RELEASE ISSUED ON 12/19/2000
DEFENDANT IS TO HAVE NO CONTACT WITH SHANE WOOD; DEFENDANT IS TO
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12/26/2000
01/12/2001
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02/21/2001
03/20/2001
03/20/2001
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03/20/2001
TROY CORBIN
AUGSC-CR-2000-00402
DOCKET RECORD
HAVE NO USE OR POSSESSION OF ALCOHOL AND SCHEDULED DRUGS AND IS TO SUBMIT TO SEARCH AND
TESTING; DEFENDANT IS TO ENTER INTO LIMESTONE
IMMEDIATELY AND COMPLETE THE PROGRAM, THEN TO POST $10,000.00 SURETY; IF HE DOES NOT
COMPLETE THE PROGRAM THAN HE IS TO GO TO JAIL.
MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 12/26/2000
MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 01/10/2001
MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 01/10/2001
BAIL BOND - SURETY BAIL BOND FILED ON 02/16/2001
A TRUE COPY
ATTEST:
Bail Amt: $10,000 Surety Type: SINGLE REAL ESTATE Surety Value: $0
County: KENNEBEC County Book ID: 6402 Book Page: 278
Date Bailed: 02/16/2001 Prvdr Name: RUTH A CORBIN
Lien Issued: 02/14/2001 Rtrn Name: RUTH A CORBIN
Lien Discharged:
Conditions of Bail:
Have no contact with...
1 SHANE WOOD
and the family of said person(s).
HEARING - MOTION TO SUPPRESS SCHEDULED FOR 03/26/2001
NOTICE TO PARTIES/COUNSEL
HEARING - MOTION TO SUPPRESS HELD ON 02/26/2001
DONALD H MARDEN , JUSTICE
Attorney: GREGG BERNSTEIN
DA: LARA NOMANI Reporter: PHILIP GALUCKI
Defendant Present in Court
TAKEN UNDER ADVISEMENT
MOTION - MOTION TO SUPPRESS DENIED ON 03/14/2001
DONALD H MARDEN , JUSTICE
COPY TO PARTIES/COUNSEL
MOTION - MOTION FOR DISCOVERY GRANTED ON 03/13/2001
DONALD H MARDEN , JUSTICE
COPY TO PARTIES/COUNSEL ~ DEF MAY HAVE
ACCESS TO VIDEOTAPE FOR PURPOSES OF MAKING A COPY TO BE USED SOLELY IN THE DEFENSE OF
THIS CASE AND FOR NO OTHER PURPOSE.
Clerk
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