The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, 55. LOCATION: BANGOR
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NO CR-06-556
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STATE OF MAINE FILED & ENTERED
SUPFR'(H~ r,()(J RT
v. ORDER
MAY 13 2008
WALTER DURGIN
PENOBSCOT COUNTY
Hearing was held on the defendant's motion to suppress on May 12, 2008. The
State was represented by counsel, Alice Clifford, Esq., while the defendant was
represented by counsel, Donald Brown, Esq. In this motion the defendant seeks
suppression of the fruits of a warrantless search as well as a later search pursuant to a
warrant, and also asks the court to exclude statements made by the defendant after his
arrest. Because the parties agree that defendant did not properly request a hearing
pursuant to Franks v. Delaware, the court will not consider the testimony of the
witnesses that the state called at hearing with regard to the search pursuant to the
warrant because that examination must be made based of the four corners of the
warrant and affidavit only. Franks v. Delaware, 438 U.s. 154, 98 S.Ct. 2674, 57 L.Ed. 2d.
667 (1978).
The court makes the following findings with regard to the initial search, based on
the testimony of the witnesses called at hearing:
1. Working with Newport police officer Wintle, a confidential informant agreed
to purchase illegal drugs from her former boyfriend, Walter Durgin. Her interest in
working with the officer was motivated by a desire to avoid an operating after
suspension conviction. Before the Durgin buy, she had attempted to purchase
marijuana from two individuals, in her capacity as an informant, but had failed to
successfully make a purchase.
2. The confidential informant arranged for Mr. Durgin to come to her apartment
to sell heroin to her at a price between $250 and $300. She described the vehicle he
would be driving to the officer and indicated that the purchase would take place
around midnight and that Durgin would be driving to her apartment. She said she
would come out of her apartment and go to the driver's side of the truck and give him
the money and then he would pass the heroin to her. She indicated that Mr. Durgin had
informed her that after he had picked up the drugs in Massachusetts, the return trip
was long because of rainy driving conditions and a bridge closure. Officer Wintle used
the internet to learn that a crane had collided with a bridge on Rt. 128 in Massachusetts,
causing long delays on the previous day, which had been rainy.
3. Prior to midnight no officer searched the informant nor gave her buy money
because it apparently had been planned that she would use her own funds. The
transaction was not recorded by body wire or other similar device. Prior to midnight,
Officer Wintle and several other officers set up in positions near the informant's
apartment so that the transaction could be observed. From a distance of thirty to fifty
yards officers observed a vehicle matching the informant's description of Durgin's
vehicle arrive at the apartment and they observed a woman who appeared to be the
informant come out of the house and approach the driver's side of the truck. Some of
the officers had seen the informant before. They observed her reach into the vehicle to
pass something to the driver and then saw the driver pass something to the informant.
Although they were not able to observe what was exchanged, the size of the items was
consistent with money and a small amount of drugs. They then charged the vehicle and
apprehended Mr. Durgin, his female passenger, and the informant.
A warrantless search is lawful when the searching officers have probable cause
to search for evidence or contraband and exigent circumstances exist which demand
immediate search and seizure. State v. Dunlap, 395 A.2d 821 (Me. 1978). With regard to
automobile searches supported by probable cause, such searches are lawful whether or
not exigent circumstances prevailed at either the time of seizure or the time of the
search. State v.Tarantino, 587 A.2d 1095 (Me. 1991). According to Tarantino, probable
cause exists when then officers' personal knowledge of facts and circumstances, in
conjunction with any reasonably trustworthy information conveyed to them, would
cause a prudent person to believe that the vehicle contained contraband or evidence. In
evaluating the existence of probable cause, including cases involving the assertions of
confidential informants, the court must take into consideration the totality of the
circumstances. State v. Knowlton, 489 A.2d 529 (Me. 1985).
In applying these principles to this case, the court finds that the initial seizure of
the defendant and his companion and the immediate search of these two individuals
and the vehicle were lawful. Even though the confidential informant's reliability was
impeached to a degree by her previous failure to successfully purchase marijuana as an
informer and one could conclude that her selfish motive in cooperating with the police
impacted her credibility, this court concludes that the circumstances surrounding the
search compel a finding of probable cause because the information she had given was
corToborated prior to the search. Her statement concerning Durgin's difficulty in
picking up the drugs in Massachusetts was corroborated. The officers also watched the
purchase unfold exactly as she said it would. The Defendant in fact appeared at the
informant's apartment in a vehicle matching the description that she had provided, she
approached the driver's side and passed something into the vehicle and the driver in
fact gave her something small in return. At that moment, either the officers were
observing a drug buy or a fairly sophisticated set-up of a person not selling drugs.
Although either scenario is possible, a prudent person could reasonably conclude that
the former was occurring. The resulting search was then supported by probable cause.
Having decided that the warrantless search was lawful, the court finds that the
subsequent search pursuant to a warrant was also lawful, supported by the same
information as discussed above which was included in the affidavit, buttressed by a
description of the fruits of the first search, including contraband.
Finally the court addresses the admissibility of the defendant's statements. After
arresting the defendant, Officer Wintle read Miranda warnings to the defendant who
waived his rights and indicated that he would speak with the officer. Because the
defendant denied that a drug purchase had just taken place, and denied that he
possessed any illegal drugs, the officer stopped asking any questions and turned the
defendant over to Officer Costain. While in that officer's presence the defendant said
that some of the drugs were his and he was just trying to get through the weekend until
he could enroll in a methadone program. The officer did not ask questions to elicit these
statements, which the defendant made spontaneously. Based on these findings, the
court finds that the statements are not the product of custodial interrogation and finds
beyond a reasonable doubt that they were made voluntarily. See State v. Price, 406
A.2d 883 (Me. 1979), State v. Bowden, 342 A.2d 281 (Me. 1975).
Based on the above analysis, the court denies defendant's mo' n in all respects.
Dated: May 13, 2008
WILLIAM AND m::r-----
JUSTICE, SUPERIOR COURT
ATTORNEY FOR THE DEFENDANT
DONALD BROWN ESQ
POBOX 3370
BREWER ME 04412
ATTORNEY FOR THE STATE
ALICE CLIFFORD
ASSISTANT DISTRICT ATTORNEY
97 HAMMOND ST
BANGOR ME 04401