The opinion
STATE OF MAINE
RECEWED AND FILED
KENNEBEC, ss. KENNEBES SU uDERIOR COURT
JAN 09 24u3
STATE OF MAINE nal DESUARDI
Y CLERK OF COURTS
DAWN COLOMY,
Defendant
SUPERIOR COURT
CRIMINAL ACTION
DOCKET NO. CR-02-366
DAM= Wen Ale
ORDER ON MOTION
L. GARSRECHT
DONA LIBRARY
wan 3 2005
This matter is before the court on defendant’s motion for a court order requiring
‘discovery production. The defendant has been indicted for possession of schedule W
drugs (heroin) (class C) in violation of 17-A M.R.S.A. § 1107. It alleges that on
September 16, 2002 in Augusta, the defendant “did intentionally and knowingly possess
what she knew or believed to be a scheduled drug and which was in fact a scheduled
drug, namely Heroin, a schedule W drug.”
The case arises out of a search warrant in the defendant’s residence she shared
with another person, also indicted. The search warrant was founded, at least in part, on
information received from an undisclosed informant identified as CI-2311 and Cl-
2002L.1 The confidential informant continues to be confidential and undisclosed.
Defendant wishes a court order requiring disclosure arguing that:
Defendant has denied to the investigating officers that she had any
knowledge of the contraband found in her home. The undisclosed
informants are potentially witnesses who can testify that persons who had
access to that home, other than the defendant, may have been the source
of the contraband substancés seized.
It is the State’s position that the information available from the confidential
informant is not material or relevant testimony as described in M.R. Evid. 509(c)(2). The
" The State represents that the two identifying numbers represent the same person, one being an MDEA
number and the other being an Augusta Police Department number.
State asserts that the confidential informant’s information was only used in the
acquisition of the search warrant. The State further argues that the confidential
informant was not present when the search warrant was executed, has no relevant
testimony as to the defendant's possession of the contraband at the time of the search
warrant and otherwise is subject to the privilege provided by the evidentiary rule.
The defendant relies upon Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623. That
decision, which recognizes that the government has a privilege to withhold from
disclosure the identity of persons who furnish information of violations of law to
officers charged with enforcement of that law, goes on to hold that the scope of the
privilege is limited by its underlying purposes.
Whether the disclosure of an informer’s identity, or of the contents of his
communication, is relevant and helpful to the defense of an accused, or is
essential to a fair determination of the cause, the privilege must give way.
Roviero v. U.S., 353 U.S. at 60. The Court concluded that while there is no fixed rule
with respect to disclosure, responsibility under threat of abuse of discretion rests with
the trial court to determine the circumstances of the case. In Roviaro, the Court
enumerated a number of items of evidence that were known uniquely to the
confidential informant who actually participated in the transaction in question for
which the defendant was charged. Further, this court examines the circumstances
under the guidance of State v. Chase, 505 A.2d 791. Under the circumstances of that
case, the confidential informant provided information and undertook a transaction for
the police officers. On the basis of that transaction, the officers obtained a search
warrant and the defendant was charged with possession as a result of the subsequent
search. In that regard, the circumstances are almost identical to the situation at hand.
The Chase Court found no information relevant to the elements of the crime charged.
The Court agreed with the State’s position that:
Possession of drugs and paraphernalia at the time the officers executed
the search warrant is the only element it needs to prove. The informant,
who was not present at that time, is unable to testify to any relevant fact
concerning possession.
The Court concluded that the defendant had failed to meet his burden of making a
showing to the trial court of some need for disclosure beyond his bare assertion of need.
In the instant case, the defendant’s only assertion of relevant trial information in
the possession of the confidential informant is that the informant may have information
as to the persons having access to the defendant’s residence and that those persons may
be the source of the contraband forming the basis of the defendant’s indictment.
However, in order to establish guilt of possession, there is no requirement in the State to
prove the source of the unlawful substance, only that the circumstances were such that
the defendant can be found to have possessed the contraband through some dominion
or control. Even if the defendant could establish through the confidential informant ©
that the heroin was brought into the defendant’s residence by others, was owned by
others or even was subject to some degree of possession by others, it is only the
relationship of the defendant to the contraband that is in question. Unlawful possession
need not be exclusive. See Alexander, MAINE JURY INSTRUCTION MANUAL, § 6-43 and
Discussion, § 6-41. A jury could find either physical control gained with some degree of
immediacy or that the ability to gain physical control is substantially exclusive. It is
also noted that the intent to gain physical control must also be established. Inasmuch as
the confidential information was not present when the search warrant was executed
and the possession established, there is no reasonable probability that the informant can
give relevant testimony.
The entry will be:
Defendant’s motion for court order requiring discovery production
is DENIED.
Dated: January_¢_, 2003 fleece
“Donald H. Marden
Justice, Superior Court
%
STATE OF MAINE
vs
DAWN COLOMY
24 BOND STREET
AUGUSTA ME 04330
DOB: 01/27/1979
Attorney: C SPURLING
SPURLING LAW OFFICES
TWO CHURCH ST
GARDINER ME 04345
APPOINTED 10/30/2002
Filing Document: INDICTMENT
Filing Date: 10/18/2002
Charge (s)
1 UNLAWFUL POSSESSION OF SCHEDULED DRUGS
Class C
17-A 1107(1)
Docket Events:
10/21/2002 FILING DOCUMENT -
SUPERIOR COURT
KENNEBEC, ss.
Docket No AUGSC-CR~-2002-00366
DOCKET RECORD
State's Attorney: LARA NOMANI
Major Case Type: FELONY (CLASS A,B,C)
INDICTMENT FILED ON 10/18/2002
BAIL AND PLEADING GRANTED ON 10/18/2002
BAIL AND PLEADING REQUESTED ON 10/18/2002
ARRAIGNMENT SCHEDULED FOR 10/31/2002 @ 1:00
SUMMONS TO APPEAR FOR ARRAIGN ISSUED FOR 10/21/2002
PHILIP GALUCKI
PHILIP GALUCKI
TRANSFER -
TRANSFER -
10/21/2002 Charge(s): 1
HEARING -
NOTICE TO PARTIES/ COUNSEL
10/21/2002 Charge(s): 1
. SUMMONS -
10/31/2002 Charge(s): 1
HEARING - ARRAIGNMENT HELD ON 10/31/2002
S KIRK STUDSTRUP , JUSTICE
Attorney: C SPURLING
DA: LARA NOMANI Reporter:
Defendant Present in Court
READING WAIVED. DEFENDANT INFORMED OF CHARGES.
DEFENDANT . 21 DAYS TO FILE MOTIONS
10/31/2002 Charge(s): 1
PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 10/31/2002
S KIRK STUDSTRUP , JUSTICE
Attorney: C SPURLING
DA: LARA NOMANI Reporter:
Defendant Present in Court
10/31/2002 BAIL BOND -
S KIRK STUDSTRUP ,
Defendant Present i
1
JUSTICE
n Court
Page
1
of
2
UNSECURED BAIL BOND COND RELEASE ISSUED ON 10/31/2002
Printed on:
09/16/2002 AUGUSTA
COPY OF INDICTMENT/INFORMATION GIVEN TO
01/14/2003
10/31/2002
11/08/2002
11/08/2002
12/23/2002
01/14/2003
01/14/2003
01/14/2003
01/14/2003
01/14/2003
01/14/2003
. DAWN COLOMY
AUGSC-CR~2002-00366
DOCKET RECORD
$2,000 UNSECURED; NOT USE/ POSSESS ALCOHOL/DRUGS; NO CONTACT FRANKLIN ARBOUR, JANA COLOMY,
EDWARD ARBOUR EXCEPT FOR PURPOSES OF CHILD VISITATION AND PARENTING PURPOSES.
BAIL BOND - $2,000.00 UNSECURED BAIL BOND SET BY COURT ON 10/31/2002
S KIRK STUDSTRUP , JUSTICE -
Attorney: C SPURLING
DA: LARA NOMANI Reporter: PHILIP GALUCKI
Defendant Present in Court
NO USE/POSSESSION ALCOHOL/DRUGS; NO CONTACT FRANKLIN ARBOUR; JANA COLOMY OR EDWARD ARBOUR
EXCEPT FOR PURPOSES OF CHILD VISITATION AND PARENTING PURPOSES.
MOTION - MOTION TO SUPPRESS EVIDENCE FILED BY DEFENDANT ON 11/08/2002
MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 11/08/2002
HEARING - MOTION TO SUPPRESS SCHEDULED FOR 01/06/2003 @ 9:00
NOTICE TO PARTIES/COUNSEL. MOTION FOR DISCOVERY
HEARING - MOTION TO SUPPRESS NOT HELD ON 01/06/2003
HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 01/06/2003
NOTICE TO PARTIES/COUNSEL
HEARING - MOTION FOR DISCOVERY HELD ON 01/06/2003
DONALD H MARDEN , JUSTICE
Attorney: C SPURLING
DA: LARA NOMANI Reporter: JANETTE COOK
MOTION - MOTION FOR DISCOVERY UNDER ADVISEMENT ON 01/06/2003
DONALD H MARDEN ,; JUSTICE
ORDER - COURT ORDER FILED ON 01/09/2003
DONALD H MARDEN , JUSTICE
ON MOTION FOR DISCOVERY
MOTION - MOTION FOR DISCOVERY DENIED ON 01/09/2003
DONALD H MARDEN , JUSTICE
COPY TO PARTIES/COUNSEL
A TRUE COPY
ATTEST:
Clerk ~
Page 2 of 2 Printed on: 01/14/2003
J STATE OF MAINE seReWEN aN SUPERIOR COURT
RECEIVED AND FILED
KENNEBEC SUPERIOR GouRT © CRIMINAL ACTION
KENNEBEEC , ss. DOCKET NO. CR 02-366
WN 2003 URE eo
STATE OF MAINE NANGY DES JARDIN
SLERK OF COURTS
Vv. . DECISION AND ORDER
DAWN COLOMY, “MALE oo REO
LAW
Defendant ave 6 2003
This matter is before the court on the defendant’s motion to suppress. In her
motion she claims that her home was searched on September 16, 2002, under the
authority of a warrant that was issued without probable cause to believe that her
residence contained evidence of unlawful activity. She also complains that during the
search she was taken into custody without any basis to do so and interrogated so that
her statements must be considered the fruits of this unlawful seizure of her person.
Accordingly, she asks that the court order the suppression of any physical objects taken
from her home as well as the statements she made to the pelice that day. -
At the hearing on the motion, the defendant, through counsel, orally added
another basis to suppress any object that was seized from her home, namely that the
affidavit for the search warrant did not provide adequate information to authorize a
“no knock/no announce” search.
A testimonial hearing was conducted, memoranda have been filed and the
motion is in order for disposition.
I. Probable Cause in the Affidavit.
Probable cause is said to exist when “the facts and circumstances within [the
officers’] knowledge and of which they had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution in the belief that
[seizable property will be found in a particular place].” Carroll v. United States, 267 U.S.
132, 162 (1925). Said differently, and more recently, 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 useful as evidence of a crime; it
does not demand any showing that such belief be correct or more likely true than false.
A practical, nontechnical probability that incriminating evidence is involved is all that is
required.” Texas v. Brown, 460 U:S. 730, 742 (1983).
In order to assess whether probable cause exists to support the issuance of a
warrant, the reviewing court is to examine the totality of the circumstances presented to
the magistrate and to read the affidavit in support of the warrant in a positive fashion to
determine if it can fairly-be read to support the decision to issue the warrant. State v.
Knowlton, 489 A.2d 529, 531-33 (Me. 1985) (citing Illinois v. Oates, 462 U.S. 213, 237-40
(1983)). Accordingly, in conducting this review, the affidavit is not to be given a
“grudging reading,” as to do so would be inconsistent with the “totality of the
circumstances” test and the requirement that the affidavit be read “positively.” State v.
Lamson, 640 A.2d 1076, 1081 (Me. 1994). As such, the magistrate’s decision to issue the
warrant is to be accorded deference so that the inquiry is whether or not there was “a
substantial basis” for the magistrate’s finding of probable cause with all reasonable
inferences that may be drawn to support this decision. Knowlton, 489 A.2d at 531-32.
Here the magistrate was presented with considerable information concerning the
drug trafficking activities of Frank Arbour (Frank), his girlfriend, Jana Colomy (Jana),
and his brother, Eddie Arbour (Eddie). For the most part, this information was
provided by a confidential informant, CI-2311, who made a number of “controlled
buys” from these three individuals beginning in August of 2002. These controlled buys
were monitored by police officials who, by virtue of this investigative process and their
surveillance of CI-2311, were able to corroborate his drug transactions with the two
Arbours and Jana. That being so, the magistrate would be justified in considering CI-
2311’s assertions as credible even though he had a criminal record. Moreover, the
police officers involved with this case had significant first-hand evidence that Frank and
Jana had engaged in drug trafficking activities in the years preceding the execution of
this search warrant and the participation of CI-2311 in this investigation.
With respect to this latter point, the magistrate was told in the affidavit that the
affiant, an MDEA agent, executed a search warrant in October of 2001 at the residence
of Frank, Jana, and two others in Chelsea, just south of the Augusta city line. As a result
of that warrant, the agent found scales with cocaine residue, cocaine cutting agents,
packaging materials and five firearms in.a room occupied by. Frank and Jana. Also
located at this residence, albeit in a room occupied by others, were cocaine residue,
marijuana and a large supply of prescription medications packaged in plastic bags
along with more firearms, some of which were loaded. After the execution of the search
warrant, Frank acknowledged that the cocaine and packaging materials found in his
room were his, but denied any association with the firearms.
Five months later, in March, 2002, the MDEA agent and Augusta police officers
executed another search warrant at the residence of Frank and Jana who had apparently
moved in the interim to the Bog Road in Augusta. When the police attempted to enter
this residence, Frank tried to prevent them from doing so by slamming the door on a
detective’s arm after he had learned that the police were there with a warrant. As a
result of this search, the police seized seven pounds of marijuana, two sets of scales
with cocaine and heroin residue on them, packaging material for cocaine and heroin,
over one gram of “bulk” heroin and over $5,000 in cash. Afterwards Frank
acknowledged the marijuana was his and that he had purchased ten pounds of this
drug from an out-of-state source. He also agreed the cocaine and heroin were his.
Another five months went by until the MDEA agent and Augusta police officers
met CI-2311 who, as noted previously, the magistrate and the officers could reasonably
find to be credible as much of what he told the police in the weeks which followed was
fully corroborated.
CI-2311 told the police that he knew several people who were dealing in drugs,
namely Frank, Jana and Eddie. He said he had never purchased drugs from Jana or
Frank but had seen others do so at their home on the Bog Road and at others’
apartments when they had delivered large quantities of drugs. CI-2311 agreed to make
“controlled buys” for-the police. - - - - ene
On August 7, 2002, the police observed CI-2311 purchase $80 worth of marijuana
from Jana at a parking lot in Augusta. Jana was driven there by Frank in his black
pickup truck.
On August 12, 2002, CI-2311 told the police that he had just met Eddie by chance
at a nearby Cumberland Farms store. He identified Eddie as a drug dealer who sells
cocaine and heroin. He said that he asked Eddie about the availability of heroin and
was told that he, Eddie, had that drug for sale at $35 per bag upon which he gave CI-
2311 a cell phone number to call him. Based on this information, the police arranged to
have CI-2311 make a controlled buy of heroin from Eddie and call him back on his cell
phone for this purpose. As a result of the call, Eddie agreed to the transaction and to
meet CI-2311 at the latter’s apartment. At about the time the police observed CI-2311
enter his apartment, Frank’s truck was seen parked outside the apartment believed by
the police to be occupied by Eddie and his girlfriend Donna (sic) Colomy,' Jana’s sister.
A few minutes later, an officer conducting this surveillance observed Frank and Eddie
meeting, presumably outside this apartment, after which Eddie was seen walking in CI-
2311’s direction. Minutes later Eddie sold CI-2311 two packets of heroin and was then
observed leaving the site of the transaction and walking on to Bond Street where he
entered the address at 24 Bond Street. Frank’s truck was still there. During this
transaction, Cl-2311, observed Eddie take the heroin packets from a black bag which
contained other baggies which appeared to contain heroin. Eddie also told CI-2311 that
he usually has drugs, but when he is out, he can get more quickly.
The police believed that 24 Bond Street was Eddie’s residence with Dawn
“because the affiant had seen him “hanging around” the front-of the. building on.
numerous occasions and because CI-2311 told the police that Eddie lived there with his
girlfriend “Donna.”
On August 14, 2002, CI-2311 made a controlled buy of marijuana from Jana at her
residence on the Bog Road. The police monitored this transaction with a listening
device and could hear dogs barking at this residence.
On August 19, 2002, CI-2311 told the police that he had been to Jana and Frank’s
home on the Bog Road where Jana had shown him a large amount of marijuana and
heroin. She also told CI-2311 that she would be babysitting for “Donna” that afternoon
at Bond Street. While the police monitored the phone, CI-2311 telephoned Jana at Bond
Street and was told that she would only sell marijuana there but that heroin would be
available the next day. CI-2311 then agreed to purchase marijuana and would come by
shortly to do so.
* It is obvious from the warrant that Donna Colomy is Dawn Colomy.
The police then observed CI-2311 go to 24 Bond Street and enter the apartment.
Shortly after he entered, an unidentified older man walked out of the apartment and
stood by Frank’s truck. According to the affiant, this man was “looking around” as
though he was “acting as surveillance.” Affidavit, | 55. After CI-2311 had made his
purchase at 24 Bond Street, police observed this man walk to the Cumberland Farms
store where he was joined after a brief time by Frank and Jana and a conversation
ensued among the three of them.
CI-2311 told the police that he had been let into 24 Bond Street by Eddie
whereupon he met Jana, Frank and an older man he did not know. At this point the
man left and stood near the vehicles outside the apartment. Jana then sold CI-2311 a
baggie of marijuana which had. been on. top of-the refrigerator.
On August 21, 2002, CI-2311 told the police that Jana had contacted him the
previous evening, telling him that she had cocaine and heroin and he should call her the
next day to set up a deal. Accordingly, the police again arranged for a controlled buy
with surveillance and CI-2311 proceeded to Jana’s and Frank’s residence on the Bog
Road at her invitation. There CI-2311 purchased two baggies of heroin. Present during
this transaction was Jana’s sister whose name CI-2311 did not know.
On September 6, 2002, CI-2311 told the police that he had met Frank the night
before who had told him he could buy heroin from him at a price of $25 per bag and
that all he had to do was call him to make a purchase. Again, the police arranged for a
controlled buy and CI-2311 went to Frank and Jana’s residence on the Bog Road, after
calling Frank to arrange to purchase four bags of heroin. There CI-2311 purchased the
four bags of heroin for $100. During this transaction, the police again heard dogs
barking at Frank’s home via the listening device they used. CI-2311 told the police that
Frank told him he could come by the next day for more.
Applying the deferential standard required in examining a magistrate’s
determination of probable cause, this court concludes that there was a substantial basis
for that official to find probable cause to authorize a warrant to search the apartment at
24 Bond Street for drugs and related evidence.
First, as already noted herein, the police had ample corroboration of the facts
recited in the warrant’s affidavit either by first-hand observation, or surveillance and
monitoring of their informant. Thus, it would be reasonable for the police and the
magistrate to believe that Frank and Jana were significant, long-term drug traffickers
who sold drugs out of their own home and either delivered to, or sold drugs from, the
residences of others on occasion. Importantly also, they would be justified in believing
that Eddie-was-also.a drug-trafficker who acted in concert with his. brother.and Jana,
The basis for this belief would be that CI-2311 told the officers that Eddie was a drug
dealer, that Eddie sold him (CI-2311) two packets of heroin, had more to sell, and had
invited further transactions.
The magistrate would also be justified in concluding that there was a sufficient
nexus between Frank, Eddie and Jana’s drug trafficking and 24 Bond Street to believe
that drugs might be found there. Also, CI-2311 told the police that Eddie lived at 24
Bond Street and the police had made observations that were consistent with that
information. More to the point, on the occasion when Eddie sold heroin to CI-2311,
August 12, 2002, Eddie was observed meeting with Frank outside 24 Bond Street and
then leaving “his” residence to meet the informant. After the sale, he returned to the
same address where Frank’s truck had been parked.
A week later, CI-2311 was invited to 24 Bond Street by Jana to purchase
marijuana there, because she “would sell only marijuana while on Bond Street,”
suggesting that Jana sold drugs from that address, but only marijuana. Affidavit, J 52.
When he arrived, there appeared to be a lookout, he was greeted by Eddie and met
Frank and Jana inside where the transaction took place. From all this, it would be
reasonable to conclude that Frank, Jana and Eddie sold illegal drugs from Frank and
Jana’s home and Eddie’s as well. Additionally, “in the case of drug dealers, evidence is
likely to be found where the dealers live.” United States v. Angulo-Lopez, 791 F.2d 1394,
1399 (9th Cir. 1986).
That the defendant presented testimony at the hearing that Eddie did not live at
24 Bond Street, but only visited there periodically to visit his child, does not affect the
court’s conclusion that there was probable cause to search 24 Bond Street. Nor does the
circumstance that the police could have done more to connect Eddie Arbour with this
residence. The sufficiency of-probable cause to-search cannot be judged by. new-facts .
which the magistrate did not have when he authorized the warrant. That is because the
determination of probable cause must be evaluated by a magistrate, and later by a
reviewing court, on the basis of the totality of the circumstances then known, not as
may be later developed. U.S. v. Certain Real Property Located on Hanson Brook, 770
F.Supp. 722, 731 (D.Me. 1991) (citations omitted). In this regard, “there is no
requirement that the belief [of a magistrate] be shown to be necessarily correct or more
likely true than false.” United States v. Feliz, 182 F.3d 82, 87 (1° Cir. 1999) (citing Spinelli
v. United States, 393 US. 410, 419 (1969)).
The defendant also argues that the probable cause to search 24 Bond Street was
“stale,” that is, that the two drug transactions directly associated with this address
occurred on August 12 and August 19, 2002, so that 32 and 25 days, respectively, had
gone by before the magistrate issued the search warrant. This argument ignores the
circumstance, however, that Frank and Jana continued to sell drugs elsewhere right up
to September 6, 2002, a week before the warrant issued, that Eddie had been involved
with their drug trafficking activities in the past, and that there would be no reason to
believe that he had stopped his participation in this continuing endeavor. Moreover, as
has been observed, drug trafficking, because it involves an on-going enterprise, may be
subject to a more forgiving test as to staleness because of the nature of this criminal
activity. That is to say that where, as here, there is a history of long-term drug
trafficking, it is likely that drugs will be found at a drug dealer’s residence, even if
substantial time has elapsed since the last verified transaction. See Feliz v. United States,
id. This being so, the court concludes that the probable cause to search 24 Bond Street or
any other venue from which Frank, Eddie or Jana sold drugs was not stale when the
warrant was issued.
Even if this court’s analysis and the magistrate’s findings as to probable cause.
were erroneous, it must nevertheless be concluded that the affiant, and the officers
associated with him in this case, acted in good faith and reasonable reliance on a search
warrant which was issued by a neutral magistrate. As such, the Supreme Court’s
holding in Leon v. United States, 468 U.S. 897, 922-25, relieves the prosecution in this case
from the effect of the exclusionary rule ordinarily imposed upon law enforcement when
probable cause is not established. In reaching this conclusion, the court finds none of
the four factors cited in Leon have been established which would extinguish the good
faith exception to the probable cause requirement for a search warrant. Id. at 923. Thus,
there is no basis to believe that the magistrate in this case was misled by information in
the affidavit which the affiant knew or should have known was false, that the
magistrate abandoned his judicial role, or that the warrant was based on an affidavit so
lacking in indicia of probable cause so as render official belief in its existence entirely
unreasonable, or that the warrant was facially deficient. Id. All this being so, the
10
warrant and the evidence seized as a result of its execution are not to be suppressed on
the claim that there was no probable cause to support its issuance.
II. No Knock, Nighttime Search.
At the hearing on the motion to suppress, counsel for the defendant advised the
court that he was contesting the warrant and the search which followed because there
was no justification expressed in the affidavit for a “no knock/no announce” search.
Ordinarily, a claim of this nature must be articulated in the motion to suppress itself.
State v. Reynoso-Hernandez, 2003 ME 19, { 6, 816 A.2d 826, 829. The failure to do so
relieves the prosecution from justifying the challenged police action. Id. Here, the
defendant’s motion makes no mention of a challenge to the “no knock/no announce”
execution of the warfant.° When her counsel announced at the hearing that she wished.
to do so, however, the State did not object and proceeded at the hearing to argue the
merits of this challenge and then brief the issue. Accordingly, the court concludes that
the State has acquiesced to the submission of this claim for resolution by this court.
The same cannot be said for the “nighttime” aspect of the search.? No mention of
this objection to the execution of the warrant was made in the motion or at the hearing,
and no argument on this topic was offered at the end of the hearing on the motion. The
first the court learned of this potential challenge to the search was its expression in the
defendant’s post-hearing memorandum. As such, the prosecution was denied the
opportunity to present evidence to justify a nighttime search and the court has been
prevented from fully evaluating this claim. State v. Reynoso-Hernandez, id., | 8, 816 A.2d
at 829. From this, the court must conclude that the defendant has waived any objection
to the nighttime aspect of the search of her home, and it will not be here addressed.
2A “nighttime search” occurs after 9:00 p-m. and before 7:00 am. M.R. Crim. P. 41(h). In this case, the
police entered the defendant’s home at 6:15 a.m.
11
Returning, then, to the justification for the no knock/no announce entry of the
defendant’s home, her argument is only that the affidavit for the search warrant
provides insufficient justification for such a search.> In that document, the affiant told
the court that he was requesting a no knock warrant for the following reasons: in the
execution of the warrant in October of 2001 at Frank and Jana’s home in Chelsea, stolen
firearms were found; during the execution of the warrant at their home in March of
2002, Frank attempted to stop the police from entering his home on the Bog Road by
slamming its door on the arm of an officer; Frank has dogs at his residence on the Bog
Road which would alert its occupants to the approach of officers so that they could hide
or destroy evidence.* Finally, the affiant told the court that because of these
circumstances he was-concerned that without-no knock.authority the “occupants”
would have time to barricade themselves and/or destroy the evidence being sought.
Affidavit, p. 15.
In the court’s view, these “facts” are sufficient to justify the no knock search
which was conduced at 24 Bond Street on the morning of September 16, 2002.5 While it
is true that neither guns nor dogs were ever observed at this address, Frank did use 24
Bond Street with his brother and girlfriend as a venue to carry on his, and their, drug
trafficking enterprise. As such, the police and the magistrate could reasonably believe
* No claim was made at the hearing or in the defendant’s memorandum that the actual execution of the
warrant was unreasonable. Had the defendant done so, the State would have had to have established
that the police, under the totality of the circumstances they were facing, had reasonable justification that
“knocking and announcing presence would be dangerous or futile or inhibit effective investigation of
crime.” State v. Reynoso-Hernandez, id., 1 17, 816 A.2d at 832 (citing United States v. Hawkins, 139 F.3d 29,
32 (1* Cir. 1998)). Because the State had no notice of such a claim, it was not required to offer evidence of
the necessity of ano knock/no announce search. Id., {1 8, 9, 816 A.2d at 829-30.
* The affiant also asserted that Frank was aware of a federal investigation against him for trading guns for
drugs and obtaining guns illegally. The affiant does not say how he or Frank would be aware of such
information or why this would justify a no knock search, except, inferentially, that Frank had guns and
might use them.
. Testimony at the hearing on this motion showed that the police entered at 24 Bond Street through an
unlocked door, weapons drawn, and announced their presence as they entered.
12
that the execution of this warrant might find Frank at this address who might be armed
and might, again, forcibly resist police efforts to enter. By the same token, it would also
be reasonable to believe that Frank, Jana and Eddie would know that the execution of a
warrant might also result in the seizure of inculpatory evidence as had twice before
occurred at Frank and Jana’s residences. That being so, they would be motivated to
resist entry or destroy evidence of drug trafficking after being alerted to police presence
outside. Finally, while it is not articulated in the affidavit as a basis for a no knock
search, common sense tells one that drugs are easily and quickly destroyed and that
experienced drug traffickers would have the motivation and the opportunity to dispose
of such contraband were they to be given even short notice of police intentions to search
the place where illegal drugs are kept or sold.° ee
Even if this court’s finding that the affidavit provided a sufficient factual basis to
authorize a no knock warrant is incorrect, the good faith exception to the exclusionary
rule would be applicable. See United States v. Hawkins, 139 F.3d 29, 32 (1* Cir. 1998).
That is because the court finds that the officers who executed the warrant in this case
were objectively reasonable in their reliance on the no knock provision of the warrant,
even though the issuing judicial officer “should have required a more particularized
showing of exigent circumstances” to search without a warning. United States v. Rivera,
2000 U.S. Dist. LEXIS 7997. Thus, as it has been observed here, the magistrate was not
given information that Eddie or Dawn had guns so that the police should be concerned
about an armed assault from them when entering their residence. However, the
magistrate was told that their cohorts had guns in the past, Frank had used force to
interfere with the execution of a warrant before, and that Frank and Jana, along with
° There is, however, no per se rule which allows a no knock search in drug cases. See Richards v.
Wisconsin, 520 U.S. 385, 394 (1997).
13
Eddie, had used the latter’s apartment for drug trafficking in recent weeks. This was all
based on reliable, corroborated information possessed by the police that they had
passed on to the magistrate and would allow the officers to reasonably believe that the
warrant authorizing the no knock search was valid and necessary for their own safety.
“The exclusionary rule is aimed at deterring police misconduct. Excluding evidence
seized by police in good faith reliance on a facially valid warrant would not deter
misconduct.” United States v. Moland, 996 F.2d 259, 261 (10 Cir. 1993) (citing United
States v. Medlin, 798 F.2d 407, 409 (10 Cir. 1986)).
For these reasons the evidence seized from the defendant’s apartment will not be
suppressed on the basis that there was insufficient information in the affidavit to
authorize a “no knock” search.
Ill. Defendant’s Statements.
Because the court has concluded that the execution of the warrant at the
defendant’s home on September 16, 2002, was lawful, it need not address her claim that
her statements cannot be admitted in evidence as “fruits of the poisonous tree.”
However, as the State has conceded, her answers to questions just after the police
entered the apartment that morning are to be suppressed because she was in custody
and had neither been advised of her Miranda rights nor had waived them. The State
makes this concession even though the questions asked were simply designed to learn
the whereabouts of Eddie and the children.
When the police entered the defendant’s home, she was plainly in custody. She
was placed in handcuffs and at least one officer had pointed his gun at her. This
detention and confrontation, however, were brief, the handcuffs were removed and she
was allowed to move around her apartment albeit only with permission and in the
company of an officer. Nevertheless, these circumstances also constitute custody as the
14
defendant's freedom was substantially impaired by the police, she had just been
handcuffed and had had a firearm pointed at her. Moreover, her home was occupied
by as many as ten officers so that the atmosphere there was certainly police dominated.
All this being so, a reasonable person in the defendant's position would have believed
that her freedom was restrained to “the degree associated with a formal arrest.”
Stansbury v. California, 511 U.S. 318, 322 (1994). No one interrogated the defendant
during this time, however, so that there are no statements which may be subject to
suppression even though she was in a custodial circumstance and had not been advised
of her Miranda rights.
After the defendant had been given more freedom, Detective Massey of the
Augusta Police Department asked her if she would speak with him in private. After she
agreed to this, the two went outside to Detective Massey’s car. There he told her that
the police had found heroin upstairs but that he was unsure if she would be arrested for
that offense. Next, he advised her of her Miranda rights and she acknowledged her
understanding of them, agreed to speak with the detective, and executed a form
waiving these rights. Following this, a conversation of about 15 to 20 minutes occurred
in which Detective Massey asked the defendant about drug trafficking from her
apartment and Eddie’s role in such activities. After this conversation, the defendant
was not arrested and both participants went back into the apartment, although the
defendant was still not free to leave. Later, the defendant was given a summons for
heroin possession.
Later that day, Detective Massey and the defendant spoke with each other by
phone several times. During one of these conversations, the detective told the
defendant that if she helped get Eddie, such cooperation would help with the D.A. It is
15
unknown if the defendant provided that assistance or made any potentially
incriminating statements as a result of this promise.
From all this, it is plain that any statements the defendant may have made to
Detective Massey in his car are admissible. Although this was a custodial interrogation,
the defendant was advised of, and waived, her Miranda rights. Moreover, there has
been no suggestion that her statements to Detective Massey were involuntary. Finally,
while later on Detective Massey may have promised leniency to the defendant in return
for her cooperation, there is no evidence that such a promise resulted in any inculpatory
statements.
Finally, the defendant says that because the police did not have probable cause to
arrest her, any statements.she made after being detained must be suppressed. If that
were so, then the police would be barred from interviewing potential witnesses being
detained at the scene of a crime, even if they were potential suspects and even if
Miranda warnings were provided. Instead, it appears that the defendant may have
confused concepts of detention, custody and arrest.
Law enforcement officials have the authority to detain individuals at the site of
the execution of a search warrant. Michigan v. Summers, 452 U.S. 692, 705 (1981). Under
such a circumstance, there is no prohibition against speaking with such a person.
Obviously also, providing that person with the Miranda warnings is an appropriate
measure to insure that the individual being detained is aware of her rights against self-
incrimination. Finally, even if the defendant’s argument had validity, at the time the
defendant was in Detective Massey’s custody and being interrogated by him, he and the
other officers there had probable cause to believe she had committed the crime of
heroin possession and could have arrested and, with her permission, interrogated her.
In sum, there is no basis here to conclude that the police violated any of the defendant’s
16
constitutional rights, including her right to be arrested only on probable cause, so that
her statements to Detective Massey would be subject to suppression.
IV. Conclusion.
For the reasons stated herein, the Motion to Suppress is DENIED.
Dated: June_ ZO __, 2003 cl Ze, Jee LCZececee)
ohn R. Atwood
ustice, Superior Court
STATE OF MAINE
vs
DAWN COLOMY
24 BOND STREET
AUGUSTA ME 04330
DOB: 01/27/1979
Attorney: C SPURLING
SUPERIOR COURT
KENNEBEC,
Docket No
ss.
DOCKET RECORD
State's Attorney: LARA NOMANI
SPURLING LAW OFFICES
TWO CHURCH ST
GARDINER ME 04345
APPOINTED 10/30/20
Filing Document: INDICTMENT
Filing Date: 10/18/2002
Charge (s)
02
Major Case Type: FELONY (CLASS A,B,C)
1 UNLAWFUL POSSESSION OF SCHEDULED DRUGS
17-A 1107 (1)
Docket Events:
10/21/2002 FILING DOCUMENT -
TRANSFER -
TRANSFER -
10/21/2002 Charge(s): 1
HEARING -
Class Cc
INDICTMENT FILED ON 10/18/2002
NOTICE TO PARTIES/COUNSEL
10/21/2002 Charge(s): 1
SUMMONS -
10/31/2002 Charge(s): 1
HEARING -
S KIRK STUDSTRUP
Attorney:
DA: LARA NOMANI
Defendant Present
READING WAIVED.
ARRAIGNMENT HELD ON 10/31/2002
1 JUSTICE
C SPURLING
Reporter:
in Court
DEFENDANT INFORMED OF CHARGES.
09/16/2002 AUGUSTA
BAIL AND PLEADING GRANTED ON 10/18/2002
BAIL AND PLEADING REQUESTED ON 10/18/2002
ARRAIGNMENT SCHEDULED FOR 10/31/2002 @ 1:00
SUMMONS TO APPEAR FOR ARRAIGN ISSUED FOR 10/21/2002
PHILIP GALUCKI
AUGSC-CR-2002-00366
COPY OF INDICTMENT/INFORMATION GIVEN TO
DEFENDANT. 21 DAYS TO FILE MOTIONS
10/31/2002 Charge(s): 1
PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 10/31/2002
S KIRK STUDSTRUP , JUSTICE
Attorney: SPURLING
DA: LARA NOMANI Reporter: PHILIP GALUCKI
Defendant Present in Court
10/31/2002 BAIL BOND -
S KIRK STUDSTRUP
Defendant Present
, JUSTICE
in Court
Page 1 of 3
UNSECURED BAIL BOND COND RELEASE ISSUED ON 10/31/2002
Printed on:
06/20/2003
10/31/2002
11/08/2002
11/08/2002
12/23/2002
01/14/2003
01/14/2003
01/14/2003
01/14/2003
01/14/2003
01/14/2003
01/14/2003
01/29/2003
01/29/2003
02/19/2003
02/19/2003
03/05/2003
DAWN COLOMY
AUGSC-CR-2002-00366
DOCKET RECORD
$2,000 UNSECURED; NOT USE/POSSESS ALCOHOL/DRUGS; NO CONTACT FRANKLIN ARBOUR, JANA COLOMY,
EDWARD ARBOUR EXCEPT FOR PURPOSES OF CHILD VISITATION AND PARENTING PURPOSES.
BAIL BOND - $2,000.00 UNSECURED BAIL BOND SET BY COURT ON 10/31/2002
§ KIRK STUDSTRUP , JUSTICE
Attorney: C SPURLING
DA: LARA NOMANI
Defendant Present in Court
Reporter: PHILIP GALUCKI
NO USE/POSSESSION ALCOHOL/DRUGS; NO CONTACT FRANKLIN ARBOUR; JANA COLOMY OR EDWARD ARBOUR
EXCEPT FOR PURPOSES OF CHILD VISITATION AND PARENTING PURPOSES.
MOTION - MOTION TO SUPPRESS EVIDENCE FILED BY DEFENDANT ON 11/08/2002
MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 11/08/2002
HEARING - MOTION TO SUPPRESS SCHEDULED FOR 01/06/2003 @ 9:00
NOTICE TO PARTIES/COUNSEL. MOTION FOR DISCOVERY
MOTION - MOTION TO SUPPRESS EVIDENCE UNDER ADVISEMENT ON 03/03/2003
JOHN R ATWOOD , JUSTICE
HEARING - MOTION TO SUPPRESS NOT HELD ON 01/06/2003
HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 01/06/2003
NOTICE TO PARTIES/COUNSEL
HEARING - MOTION FOR DISCOVERY HELD ON 01/06/2003
DONALD H MARDEN , JUSTICE
Attorney: C SPURLING
DA: LARA NOMANI Reporter: JANETTE COOK
MOTION - MOTION FOR DISCOVERY UNDER ADVISEMENT ON 01/06/2003
DONALD H MARDEN , JUSTICE
ORDER - COURT ORDER FILED ON 01/09/2003
DONALD H MARDEN , JUSTICE
ON MOTION FOR DISCOVERY
MOTION - MOTION FOR DISCOVERY DENIED ON 01/09/2003
DONALD H MARDEN , JUSTICE
COPY TO PARTIES/COUNSEL
MOTION - MOTION TO CONTINUE FILED BY STATE ON 01/28/2003
MOTION - MOTION TO CONTINUE GRANTED ON 01/28/2003
DONALD H MARDEN , JUSTICE
COPY TO PARTIES/COUNSEL
MOTION - MOTION TO CONTINUE FILED BY STATE ON 02/19/2003
DA: LARA NOMANI
STATE WITNESS OFFICER TRACEY NOT AVAILABLE FOR THE 2/20/03 HEARING.
MOTION - MOTION TO CONTINUE GRANTED ON 02/19/2003
S KIRK STUDSTRUP , JUSTICE
COPY TO PARTIES/ COUNSEL
HEARING - MOTION TO SUPPRESS HELD ON 03/03/2003 @ 1:00
JOHN R ATWOOD , JUSTICE
Attorney: C SPURLING
DA: LARA NOMANI Reporter: PHILIP GALUCKI
Defendant Present in Court
Page 2 of 3 Printed on: 06/20/2003
DAWN COLOMY
AUGSC-CR-2002-00366
DOCKET RECORD
STATE'S WITNESSES WERE: TORI TRACY AND DETECTIVE MASSEY. DEFENSE WITNESS WAS TIM CLARK
(DEFENDANT'S BOYFRIEND) .
UNDER ADVISEMENT
03/17/2003 OTHER FILING - MEMORANDUM OF LAW FILED ON 03/17/2003
Attorney: C SPURLING
MEMO ON MOTION TO SUPPRESS
03/17/2003 OTHER FILING - MEMORANDUM OF LAW FILED ON 03/17/2003
DA: LARA NOMANI
04/02/2003 OTHER FILING - OTHER DOCUMENT FILED ON 04/02/2003
Attorney: C SPURLING
DEFENDANT OBJECTS TO THE STATE'S ARGUMENT PRESENTED IN ITS 3/27/03 LETTER AS UNTIMELY.
06/20/2003 MOTION - MOTION TO SUPPRESS EVIDENCE DENIED ON 06/20/2003
JOHN R ATWOOD , JUSTICE
COPY TO PARTIES/COUNSEL
06/20/2003 ORDER - COURT ORDER FILED ON 06/20/2003
DECISION AND ORDER FILED ON MOTION TO SUPPRESS
A TRUE COPY
ATTEST:
Clerk
Page 3 of 3 Printed on: 06/20/2003