Opinion

State of Maine v. Kanaris

Court
Superior Court of Maine
Filed
Mar 20, 2019
Status
Unpublished
On the bench
Robert E. Mullen
Cited by
0 cases
Authority
More cited than 34.2%

The opinion

STATE OF MAINE UNIFIED CRIMINAL DOCKET

KENNEBEC, ss. DOCKET NO. CD-CR-18-548

STATE OF MAINE

v. ORDER ON DEFENDANT'S

MOTION TO SUPPRESS

ALEX KANARIS,

Defendant

The defense has moved to suppress "any and all evidence" seized as a result

of the search warrant issued in this matter upon grounds that the warrant issued

was without sufficient probable cause and in violation of the Fourth Amendment

to the United States Constitution as well as that of the State of Maine Constitution.

The State has objected. The Court makes the following Findings of Fact and

Conclusions of Law upon which the Order set out below is based:

1. At the outset, the undersigned recognizes that the Court must give great

deference to the issuing magistrate, i.e. courts must give the supporting affidavit

a positive reading and review the affidavit with all reasonable inferences that may

be drawn to support the magistrate's determination. State v. Estabrook, 2007 ME

130, 15, 932 A.2d 549. Whether probable cause exists for a warrant to issue must

be evaluated solely within the four corners of the affidavit. State v. Johndro, 2013

ME 106, 119, 12, 82 A.2d 820. The Court should draw all reasonable inferences

from the affidavit to support a finding of probable cause, and limit any inquiry to

whether there is a substantial basis for the finding of probable cause under the

totality of the circumstances test. Such a test requires "a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit ... including

the veracity and basis of knowledge of persons supplying the hearsay information,

there is a fair probability that contraband or evidence of~ crime will be found in a

particular place." State v. Wright, 2006 ME 13, 1 8, 890 A.2d 703.

The following facts are taken from MDEA Special Agent Todd Chilton's

Affidavit and Request for a Search Warrant dated April 2, 2018:

2. MDEA made three controlled purchases of cocaine HCL, cocaine base,

and heroin from Maurice Wilson ("Wilson") on January 8, 2018, January 29, 2018,

and March 1, 2018. Statement of Probable Cause 11 (SPC). The reader is not told

where these controlled purchases were made.

3. On March 19, 2018, while under surveillance, Wilson stepped outside 38

Water Street, Apartment 2 in Augusta and got into a vehicle that was later stopped.

SPC <fl 1.

4. MDEA later learned that Apartment 2 is rented by a John Rolfe ("Rolfe"),

date of birth 6 / 6 / 48. 1 SPC <JI 1. After leaving the vehicle, Wilson was arrested on

three counts of aggravated trafficking and told Special Agent ("SA") Chilton that

he sold drugs to support his habit. SPC <JI 2. There is no mention in the affidavit

that Wilson conducted any sort of drug activity while at 38 Water St, Apartment

2.

5. On April 2, 2018, SA Walker was informed by staff at the Augusta Inn

that Rolfe 2 rented a room on March 30 ("Room 209") and paid cash for each night.

SPC <JI 3. The staff advised SA Walker of "what they believed to be drug activity."

SPC <JI 3. There is no further description in the affidavit of what the staff members

observed, heard, smelled, or any other facts that led them to believe this. The

reader also doesn't know if "staff" is one, two, or more persons.

6. Andrew Redmond ("Redmond") paid cash for Room 209 while Rolfe

was still occupying it for the night of April 2. SPC <JI 3. Through his training,

education, and experience, SA Chilton knows that drug traffickers often rent hotel

rooms to conduct their business in order to "keep the spotlight off their

residences." SPC <JI 3.

7. MDEA conducted surveillance of Room 209 and the vehicles and people

associated with it. 3 SPC <JI 4. MDEA observed Rolfe, Redmond, Alex Kanaris

("Kanaris") and Krystal Clark ("Clark") coming and going from the room. SPC

'JI 4. Kanaris' s home address is 396 Pond Road in Sidney, Maine and MDEA "has

received information" that he has been selling drugs from his residence. SPC <_[ 4.

There is no explanation in the affidavit of how MDEA received this information or

what the information specifically was, such as when the sales were made, etc.

1 SPC <J[ 1 lists John Rolfe's date of birth as June 6, 1948. In the Description of the Place(s) or

Person(s) to be searched, a John Rolfe with a date of birth of March 23, 1980, is listed. This younger

Rolfe is also ].isted as "Renter and Occupant" of the premises. It is not clear if these "John Rolfes"

with two different dates of births are actually the same person, and a mistake was made, or if this

is perhaps a junior/senior issue. SPC 9I 10 states "[a] known drug trafficker was arrested after

leaving John Rolfe's apartment on March 19th. Rolfe has now rented a hotel room within a few

miles of his residence . .." This suggests that the "John Rolfes" are the same person, unless the

MDEA missed the fact that these are two different people aged 71 years old and 39 years old. There

is nothing else in the affidavit that indicates they are family, two different unrelated people, or

anything additional to suggest that they are the same person. Regardless, this creates a definite

problem with the affidavit, and any probable cause related to Wilson leaving the "older" Rolfe's

apartment is problematic.

2

No date of birth is given for this "Rolfe.".

3 No date is given for the surveillance.

2

8. Clark was on Conditions of Release entered December 1, 2017 for a

Violating Conditions of Release charge and her home address listed on the

conditions is the same address as Kanaris's. SPC <I[ 7. Nothing in the affidavit

explains what her conditions of release are or how she violated her prior

conditions. After checking a law enforcement computer system, SA Chilton found

that Redmond was arrested by State Police on March 1, 2017, for Unlawful

Possession of Scheduled Drugs. SPC <I[ 7.

9. During surveillance, Rolfe, Redmond, and Kanaris left the Room and

got into a blue Hyundai Elantra4 driven by Redmond. SPC <I[ 4. Before Redmond

left the parking lot, SA Chilton saw him "pull out a silver pipe, which is commonly

used to smoke illegal substances, to include but not limited to [crack]." SPC <I[ 4.

The affidavit does not state whether SA Chilton observed him pack or use the pipe

with any sort of substance. At some point, Clark left Room 209 and got items from

the trunk of Kanaris's car. 5 SPC <I[ 5. She put on perfume, pulled out a roll of toilet

paper from the trunk, and pulled out a clear plastic baggie from inside the toilet

paper roll which she pu t in her purse that she also got out of the trunk. SPC <I[ 5.

She brought the toilet paper roll and the p urse back inside Room 209. SPC <I[ 5.

10. Later that night, around 7:30 p .m., Rolfe left the Augusta Inn in the

Hyundai. SPC <JI 6. He drove to Washington Street in Augusta, picked up a man

who sat in the front seat, drove around the block, dropped the man off at the same

spot he had picked him up at, and then returned to Room 209. SPC <I[ 6. Through

his training, education, and experience, SA Chilton knows that drug traffickers

often pick up drug users, drive around the block, and conduct their business in the

vehicle. SPC <I[ 6.

11. SA Chilton spoke with Detective Matt Estes of the Augusta Police

Department who supplied him with the following information. 6 SPC <I[ 8. On

February 16, 2018, CI#27 informed Detective Estes that he/ she observed Redmond

in an Augusta apartment with heroin and cocaine base, and watched numerous

drug transactions occur when individuals arrived at the residence. SPC <I[ 8. On

March 19, 2018, CI# 2 informed Detective Estes that he/ she saw Redmond arrive

4

According to the Description of the Place(s) to be Searched, the Hytrndai Elantra is owned by

Hertz Rental Company.

5 A 2009 silver Dodge Charger.

6 From its wording, the undersigned ponders whether the second and third paragraph contained

in paragraph 8 of the Affidavit was pulled directly out of a prior warrant request made by Estes.

7 There is no information given about CI#2. Nothing indicates whether he/she has provided

reliable information in th e p ast, if he/ she received any sort of benefit for the information that was

provided, or whether the CI h as ever provid ed false information in the past, etc. CI#2 is the only

confidential informant listed in the Affidavit. It is unclear why this informant is referred to as Cl#2

when there is no CI#l.

3

at the same Augusta apartment, and Redmond again had heroin and cocaine base.

SPC '1I 8. CI#2 observed a couple grams of cocaine and heroin that amounted to a

size a little bigger than a golf ball. SPC '1I 8. Through Detective Estes' training,

education, and experience, this equated to at least an ounce of heroin. SPC '1I 8.

CI#2 told Detective Estes that Redmond started bagging up the drugs when he got

to the apartment, and that he arrived in a rental vehicle. 8 SPC '1I 8.

12. Finally, during surveillance, SA Richards told SA Chilton that Rolfe left

the Augusta Motor Inn and drove to Green Street in Augusta, where he observed

a man approach the driver's side window, and "an exchange took place, which is

consistent with a transaction of scheduled drugs." SPC '1I 9. Based on the totality

of the information, SA Chilton believed that the illegal sale and distribution of

scheduled drugs was occurring at Room 209 by Rolfe, Redmond, Kanaris, and

Clark. SPC '1I 10. Specifically, he based his conclusion on the following:

[a] known drug trafficker was arrested after leaving John Rolfe's

Apartment on March 19th. Rolfe has now rented a hotel room within

a few miles of his residence and based on my Training, Education

and Experience this is indicitive [sic] to avoid detection of his

residence where illegal drugs have been sold. Additionaly, [sic] seen

with Rolfe in Room 209, on this date, were Kanaris and Redmond

who MDEA have received information about in the illegal sale of

scheduled drugs, and Rolfe was seen exiting this room and engaging

what my Training, Education and Experience is consistent with a

transaction of scheduled drugs.

SPC '1I 10. The remainder of the affidavit is a description of SA Chilton's training,

education, and experience, and boilerplate regarding what drug traffickers

commonly keep on their persons or near them in their vehicles or residences. SPC

'1I'1I 11-12. The warrant was reviewed by an Assistant Attorney General, SPC '1I 13,

and subsequently signed by a judge on April 2, 2018.

13. The first question the undersigned has to answer is did the four corners

of the affidavit contain sufficient probable cause for a search w arrant to issue? The

affidavit must be read in a positive light in support of the warrant, and the

reviewing court must "consider all reasonable inferences that may be drawn from

information in the affidavit." State v. Samson, 2007 ME 33, '1I 11, 916 A.2d 977.

14. An "officer's p ersonal knowledge of facts and circumstances, in

combination with any reasonably trustworthy in.formation conveyed to them" is

enough for the existence of probable cause when a reasonable person would

believe that evidence of a crime was to be seized. State v. Higgins, 2002 ME 77, '1I 21,

796 A.2d 50 (citing State v. Kennedy, 645 A.2d 7, 9 (Me. 1994)). In determining the

existence of probable cause, the judicial officer "must rely on 'factual and practical

considerations of everyday life on which reasonable and prudent persons, not

8 A grey Mitsubishi with plate number VWB6806.

4

legal technicians, act."' State v. Samson, 2007 ME 33, 'JI 11, 916 A.2d 977 (quoting

Illinois v. Gates, 462 U.S. 213, 231 (1983) (alteration omitted)).

15. For probable cause to exist, "the warrant affidavit must set forth some

nexus between the evidence to be seized and the locations to be searched." Samson,

2007 ME 33, 'JI 15, 916 A.2d 977. The nexus does not have to, and often will not,

"rest on direct observation, but rather can be inferred from the type of crime, the

nature of the items sought, the extent of an opportunity for concealment and

normal inferences as to where a criminal would hide evidence of a crime." Id. 'lI 15

(quoting United States v. Feliz, 182 F.3d 82, 88 (1st Cir. 1999) (alterations omitted).

Despite an affidavit's deficiency in certain areas, probable cause may still be

established. State v. Rabon, 2007 ME 113, 'lI 23, 930 A.2d 268.

16. Neither the State nor the Defendant originally addressed the fact that

the affidavit and Request for a Search Warrant lists two different date of births

("DOB") for Rolfe. The reason that the discrepancy in the DOBs is significant is

because part of SA Chilton's probable cause determination was based on a known

drug trafficker leaving the "older" Rolfe's apartment. However, the probable

cause is also based on Rolfe (presumably the younger, because of the description

of persons and places to be searched) renting the hotel room within a couple miles

of his residence. If these are two different John Rolfes, the probable cause

determination becomes more problematic and the nexus between the evidence

and the hotel room is weakened.

17. No caselaw in Maine could be found regarding typographical errors in

search warrants, nor could anything substantial be found within the jurisdiction

of the First Circuit. 9 However, the Maryland Court of Appeals10 considered an

analogous, but not identical, "typo" issue in a search warrant. There, on April 15,

2004, the officer applied for a search warrant of the defendant's premises, person,

and things, and a judge granted it on the same date. Greenstreet v. State, 898 A.2d

961, 964 (Md. 2006). Regarding probable cause to support the warrant's issuance,

the affidavit made reference to a trash seizure of the defendant's residence on 04­

14-ill, in which drug packaging and residue was found. Id. at 965. At the motion

to suppress hearing before the trial court the defendant argued, and the State

conceded, that the warrant was facially stale "because the affidavit indicated that

the trash seizure was executed (14 April 2003) more than one year before the

warrant's issuance (on 15 April 2004)." Id. at 966.

18. The State argued that it was a typographical error, and that if the officer

was allowed to testify, he would have stated that he intended the date in the

affidavit to be 2004. Id. at 967. Ultimately, the trial court determined that it could

9

The First Circuit has found that an ATF Task Force Agent's typo in dating a report March 13,

2013, instead of March 16, 2013, was inconsequential and did not warrant suppression of his

statements. United States v. Torres-Figueroa, No. 13-150, 2013 U.S. Dist. LEXIS 179333, at *26, *40

(D.P.R. Aug. 16, 2013).

10 Maryland's highest court.

5

not consider information outside the four corners of the affidavit, and granted the

defendant's motion to suppress. Id. at 968. In addressing the good faith exception

argument that -the State made, the trial court concluded that the rule "was not

applicable because the police officer lacked an objective, reasonable good faith

basis to believe that the warrant was issued properly by the District Court judge

due to the facial staleness of probable cause. In addition, the hearing judge found

that the officer "was reckless in preparing the application."' Id.

19. The State then appealed to the Court of Special Appeals11 arguing that

the judge that signed the warrant could have concluded from the four corners of

the affidavit that trash seizure was actually April 14, 2004, meaning that probable

cause existed and the warrant was not stale. Id. at 968. The Court of Special

Appeals reversed the judgment of the trial court, determining that probable cause

existed within the four corners of the affidavit after it had "looked to a number of

cases from foreign jurisdictions to support the proposition that if the affidavit

contained an identifiable and certain clerical error, such as a date material to the

probable cause finding, the warrant should not be vitiated." 12 Id. at 969.

20. Upon the defendant's appeal, Maryland's highest court determined

that it was error for the intermediary appellate court to infer "that the issuing

judge recognized the purported typographical error in the affidavit, ignored it,

and found a substantial basis to support her finding of probable cause based upon

a trash search conducted on 14 April 2004, rather than 14 April 2003." Id. at 972.

This is because

[c]lose review of the affidavit supporting the warrant is the purpose

of the warrant process itself. To countenance otherwise is to degrade

the purpose of requiring a magistrate or judge to review and issue

warrants. A reviewing court does·not rewrite deficient or inaccurate

warrants after the search has been executed, especially where there

is no evidence the issuing judge noticed the problem and, in any

event, failed to correct it when appropriate to do so.

Id.

11 Maryland's intermediate appellate court.

12 Those cases are discussed in State v. Greenstreet, 875 A.2d 177, 184-86 (Md. Ct. Spec. App. 2005).

Almost all of those cases involved typos regarding years, where the date was off by one year, or

sometimes mere hours from one day to the next. In the cases where the dates were off by a year,

they were often in January or February-when most people accidentally write in the year that just

passed. Some of those courts allowed testimony to correct the year in order to avoid an "unthinking

or over technical application" in review of search warrant affidavits. Id. at 184. Other cases did not

allow outside testimony, but would not suppress the evidence if the correct date could be inferred

from elsewhere in the affidavit, such that the wrong date was a "mere scrivener's error []" and the

"circwnstances fairly indicate[d] that the intended reference was to the current year." Id. at 185

(citing 2 W. Lafave, Search and Seizure§ 3.7(b), at 362 (3d ed. 1996)).

6

21. In short, the affidavit did not present enough "internal, specific, and

direct evidence from which to infer a clear mistake of a material date upon which

the affiant police officer depended for probable cause." Id. at 973-74. The Court of

Appeals ultimately affirmed the trial court's conclusion that the affidavit did not

provide a substantial basis for a probable cause finding because of staleness. Id. at

974.

22. Because so much of the caselaw regarding typos of dates creates

staleness issues, this is what most cases interpreting Greenstreet have focused on.

The present case is different because it is not merely a single years' difference in a

date, but instead an entirely different month, day, and year, creating an age gap of

39 years. Despite this, this Court could undertake a similar analysis and determine

if within the four corners of the affidavit there is enough to disregard the

inconsistency.

23. The undersigned determines that there is not. The only thing that

suggests that the 71-year old Rolfe that rented the apartment is the same 39-year

old Rolfe present at the Augusta Inn is one line in SA Chilton's affidavit in which

he states a known drug trafficker was arrested after leaving the apartment, and

now Rolfe has rented a hotel room. Nothing suggests that the MDEA even caught

this discrepancy in ages and accounted for it in any way, or whether the judge

issuing the search warrant caught this issue, clarified it, and approved the warrant

based on the clarification while the officer was still under oath.

24. Because of the above analysis, any inferences that could be made to

support probable cause based on Wilson, a known drug trafficker, leaving the

older Rolfe's apartment, cannot be used to support the issuance of the warrant to

search Room 209, rented by the younger Rolfe.

25. Accordingly, the next question for the Court to consider is, without

considering Rolfe's link to 38 Water Street Apartment 2, is there enough regardless

in the affidavit to establish probable cause? Without considering Wilson's tie to

the older Rolfe, the younger Rolfe is not associated to the known drug trafficker,

Wilson. Nor could it be considered that it is the same Rolfe that is even occupying

Room 209, thereby eliminating the conclusion that Rolfe is renting the Room only

a few miles from his residence in order to "keep the spotlight off his residence."

This is a damaging blow to the nexus element required for a finding of probable

cause in this case. Therefore, the only ties to drug activity occurring in Room 209

would be the following:

• Hotel staff reporting "what they believed to be drug activity."

• Rolfe, Redmond, Kanaris, and Clark corning and going from the Room.

• Redmond had been arrested just over a year before for unlawful possession

of scheduled drugs. 13

13 In its Motion to Deny Defendant's Motion to Suppress Memorandum, the State says that

Redmond was arrested the previous month for a drug offense. This is inconsistent with the

affidavit states that Redmond was arrested for a drug offense on March 1, 2017. SPC <JI 7.

7

• Observations from Detective Estes' CI#2, unsupported in the affidavit with

information regarding his/her veracity or reliability, that Redmond was

involved in drug activity at a residence in Augusta in February and March

2018, and had a rental car at that time.

• Rolfe leaving the Room and engaging in what the MDEA describes as two

separate drug transactions

• MDEA's information, unsupported by any detail in the affidavit, that

Kanaris was involved in drug activity in the central Maine area.

• Clark being on unidentified bail conditions.

26. The State argues that based on the totality of the circumstances, this

amounts to sufficient detailed information in the affidavit for the issuing judge to

make a finding of probable cause to believe that drug trafficking was occurring

inside and outside of Room 209. The State compares this case to State v. Allard,

where the Law Court affirmed the denial of a motion to suppress based on "1) the

observations of neighbors, 2) police surveillance revealing drug related activity, 3)

presence of known drug users and traffickers, and 4) a controlled drug purchase

by a CI." State's Mot. to Deny p. 3.

27. First, the State tries to compare the "observation~ of civilian hotel staff

who stated their belief that drug activity was occurring from the room" to the

observations of the neighbors in Allard. However, the affidavit does not provide a

basis for their belief. It is unknown whether the hotel staff based their belief on

many people coming and going from the room in short periods of time, on odors

emanating from the room, or on anything else suspicious. In the affidavit, hotel

staff do not allege any suspicious activity of Rolfe, Redmond, Clark, or Kanaris.

Additionally, in Allard, the observations of the defendant's neighbors in that case,

as outlined in the affidavit, included the defendant's landlady hearing a woman

yell to people in a car out front "do you guys want pot[?]" and then the woman

running into the apartment. 674 A.2d 921, 922 (Me. 1996). A different neighbor

heard a male on another occasion holler "if anybody wants pot, you can get it over

there" and indicated the defendant's apartment. Id.

28. In Allard, there was also high traffic in and out of the apartment leading

the police to believe drug trafficking was occurring and that marijuana would be

found within. Id. Here, the only comings and goings from the Room outlined in

the affidavit are those of the people named in the warrant. Rolfe driving to

Washington Street and picking up a man, driving around the block, and dropping

him back off cannot be viewed through the lens of him being associated with a

known drug trafficker as that is the older Rolfe that is associated with Wilson. For

the same reason, whatever "exchange" occurred at the driver side window on

Green Street similarly cannot be viewed through the lens of him being associated

with a known drug trafficker. These instances may have probative value, but not

near as much weight as they would hold if Rolfe could be associated with Wilson.

29. So far as Redmond being seen with a silver pipe that could be used to

smoke crack or heroin, nothing in the affidavit alleges that the officer actually saw

him using the pipe. Bearing on that further, the affidavit does not state what drug

8

or drugs Redmond was arrested for possessing in 2017. It could have been heroin

or cocaine, or it could have been that he had too many ounces of recently legalized

marijuana.

30. Regarding Clark, it is troublesome that the affidavit does not state what

she was on conditions of release for, nor what conditions of release she violated. If

it were drug conditions that would certainly be relevant. If it were for violating a

Protection From Abuse Order, that would be completely irrelevant. Regarding the

clear plastic baggie that she pulled out of the toilet paper roll, this could be

indicative of drugs, or, considering that she just sprayed herself with perfume, it

could have been some other toiletry.

31. The lack of information regarding CI#2, and how the MDEA "received

information" about Kanaris is also an area of concern. The State argues that it is

immaterial that the affidavit does not specify whether CI#2 had previously given

credible information because "it is neither 'practical' nor comports with 'common­

sense' that Detective Estes would pass along to another law enforcement officer

information he knew, or believed, to be not credible or inaccurate." State Mot. to

Deny p. 4. The State then cites to the dissent in State v. Rabon, in which Chief Justice

Saufley wrote that "[t]he police should be able to rely on corroborated information

provided by informants who are close to drug dealers, to aid the State's efforts to

interdict the drug trade," 2007 ME 113, CJ[ 58, 930 A.2d 268. The State alleges that

the information was corroborated by the MDEA's surveillance.

32. Kanaris contends that there is no detail about how the MDEA received

information that he had been selling drugs out of his home, when it had occurred,

or whether the information was even reliable. Kanaris also attacks the unnamed

CI that spoke to Detective Estes because there was no information established in

the affidavit about CI#2's veracity or reliability.

33. The Law Court has outlined considerations for how to evaluate

probable cause when confidential informants are involved.

Where a warrant affiant relies on informants, the court considers,

together with all other facts presented within the four corners of the

affidavit, (1) the informant's reliability and basis of knowledge, (2)

the informant's claims about the defendant's criminal activities, and

(3) other information about the defendant. '[T]he totality-of-the­

circumstances approach permits a balanced assessment of the

relative weights of all the various indicia of reliability (and

unreliability) attending an informant's tip.'

State v. Nunez, 2016 ME 185, CJ[ 20, 153 A.3d 84 (quoting State v. Arbour, 2016 ME

126, CJ[ 12, 146 A.3d 1106).

34. An informant's tip has indicia of reliability if it includes first-hand

accounts of illegal activity, the informant has been reliable in the past, and if it

includes information about the informant's own involvement in illegal activity

that could expose him or her to criminal liability. Nunez, 2016 ME 185, CJ[ 21, 153

9

A.3d 84 (citations omitted). When sufficient information regarding an informant

is lacking, his "assertions can still support probable cause if the affidavit contains

'something more,' such as corroboration by outside sources." Arbour, 2016 ME 126,

<JI 13, 146 A.3d 1106 (quoting Rabon, 2007 ME 113, <JI<JI 29-30, 930 A.2d 268).

35. In Rabon, the Law Court concluded that the affidavit did not provide

enough information about the CI to support probable cause and that the

information the CI did provide was "readily available." 14 2007 ME 113, <JI 34, 930

A.2d 268. There, the CI initiated contact with law enforcement to give information

in exchange for "prosecutorial consideration if any information provided [was]

helpful in a drug trafficking case." Id. <JI 26. The CI was not on probation, but on

bail for non-drug related offenses, did not "receive any remuneration in exchange

for the information," and had provided other information on local drug

trafficking. Id. The Law Court zeroed in on the fact that the affidavit did not state

whether the other information the CI provided had been accurate, or any other

details about what the other information was. Id. It also discussed that no law

enforcement officer stated within the affidavit that the CI had been found, or was

at least believed to be, credible. Id. <JI 27.

36. Also concerning to the Rabon Court was the affidavit's lack of

explanation about the Cl's basis of knowledge for the information he provided. Id.

The Law Court pointed out specifically that the affidavit did not address any first­

hand knowledge of criminal activity or contraband. Id. Finally, the Law Court

addressed that this CI was not a disinterested citizen, but instead someone who

provided information with the intent of lessening his own exposure to criminal

sanctions. Id. <JI 28.

37. To this extent, the Court quoted a treatise explaining that, "[c]ourts are

much more concerned with veracity when the source of the information is an

informant from the criminal milieu rather than an average citizen who has found

himself in the position of a crime victim or witness." Id. (quoting 2 Wayne R.

LaFave, Search and Seizure§ 3.4 at 219 (4th ed. 2004)) The Law Court concluded

that,

[i]n short, the affidavit offers no information of the type commonly

presented in search warrant affidavits that would allow a magistrate

to form an opinion regarding an anonymous or confidential

informant's reliability or basis of knowledge. In all but a few of the

warrant affidavits involving confidential or anonymous informants

we have considered since Gates, the affidavits included at least a

modicum of information that addressed the informant's reliability or

basis of knowledge.

Rabon, 2007 ME 113, <JI 29, 930 A.2d 268. Because of this, the Court next turned to

the "something more" that is often provided by law enforcement seeking

14 The warrant discussed in Rabon is listed as Appendix A to the opinion.

10

warrants. 15 This information can be provided by the officers themselves, or from

non-confidential sources. Id. <JI 30 n.7. In Rabon, the police partially corroborated

information that the defendants had made a trip out of state to pick up cocaine by

observing that their vehicle was not in their driveway, but did return on a date

that the CI stated it would. Id. <JI 32. The Court noted though that the absence and

reappearance of the vehide, by itself, was not "contextually suspicious." Id. <JI 31.

38. Everything else the police corroborated regarding the defendants, i.e.

names, addresses, vehicle, color of their apartment, etc., was "readily available

information" that showed the CI was familiar with the defendants. Id. <JI 33. That

information showed that the O was generally familiar with local drug trafficking,

but the affidavit failed to corroborate more specific information provided by the

CI such as the defendants' ownership of a karaoke business, or if the defendant

had been to the bars where the CI alleged drug trafficking occurred. Id. Because of

this, "[n]one of the preceding information qualifie[d] as 'inside information' that

would be uniquely available to an informant with direct knowledge of otherwise

uncorroborated criminal activity." Id. <JI 34. Instead, it only showed that the CI was

familiar with the defendants and local drug trafficking. Id.

39. In assessing the totality of the circumstances analysis, the Court noted

that law enforcement was "in the middle of a promising investigation," but the

affidavit did not contain sufficient "information that establishe[d] the informant's

reliability or basis of knowledge, or corroborate[d] in any significant way the

informant's claim that the [defendants] purchased cocaine in Florida for resale in

Maine." Id. <JI 35. Law enforcement's partial corroboration of the van's absence

and reappearance was not enough to provide the "something more" that was

required due to the lack of information about the CI' s credibility or basis of

knowledge, and therefore the affidavit did not show a "fair probability that

contraband or evidence of a crime would be found" in the apartment. Id. The

Court determined that the evidence should have been suppressed. Id. <JI 36.

40. In contrast, the affidavit in Arbour did provide sufficient probable cause

for the warrant to issue. There, the informant was not a CI, but an identified man,

Howard, who had been recently arrested for outstanding warrants and a

probation violation. 2016 ME 126, <JI 2, 146 A.3d 1106. While in county jail, Howard

agreed to give information about stolen property in his possession and law

enforcement agreed to have his probation hold lifted. Id. After the hold was lifted,

Howard then explained his part in the operation selling stolen tools for the

defendant, gave specific information about trips he made to sell items to pawn

shops for the defendant, and said he bought drugs from him. Id. Law enforcement

matched the description of a tool that Howard recently saw at the defendant's

apartment to a tool that was recently reported stolen. Id. Police also confirmed

that Howard had sold tools to the pawn shops that he told them about earlier. Id.

15 To this extent, Rabon cited a string of cases where law enforcement corroborated tips by looking

towards utility records and use of infrared observation, observing marijuana gardens at a seasonal

camp and confirming some information that the defendant lived at the camp, and police

observations of "suspicious activity" over an eleven-day period at a residence. 2007 ME 113, 'TI 30,

930 A.2d 268.

11

Finally, Howard drew a map for law enforcement of the defendant's apartment

that showed stolen tools and a marijuana growing operation located in the

attached attic. Id. A search warrant issued based in part on this information.

41. The defendant alleged that the affidavit in support of the search

warrant did not establish probable cause and that the trial court erred in denying

his motion to suppress. Id. <JI 11. The defendant attacked the affidavit for its failure

to "set forth sufficient information establishing Howard's veracity or reliability."

Id. (alterations omitted). The Court explained that:

the affidavit (1) provided detailed information about the named

informant, Howard, and explained how he had come to directly

observe contraband in the apartment; and (2) noted that Howard

had provided highly specific information, including a hand-drawn

map of the apartment. The affidavit also contained statements by

Howard against his penal interest. Furthermore, the police

corroborated Howard's assertions that he had pawned or sold tools

as he described and that he had observed a possibly stolen air

compressor in the apartment. Id. <JI 14.

42. Because of the foregoing, Arbour was distinguished from Rabon where

there was a dearth of information about the CI himself, and police only

corroborated "readily available information." Id. In contrast, Howard gave law

enforcement "inside information" about criminal activity and contraband within

the defendant's apartment. Howard's criminal history involving crimes of

dishonesty that were listed in the affidavit, and the fact that police arranged for

his release from jail on the probation hold before Howard gave them the

information were factors to be appropriately considered when determining his

reliability. Id. <JI 15. Regardless, Howard's information, combined with other

information in the affidavit, 16 and "the deference that must be shown to the judge

who issued the warrant," provided a substantial basis for probable cause for the

issuance of the warrant, and the trial court did not err in denying the defendant's

motion to suppress. Id. <JI<JI 15-16.

43. Turning to the case at bar, to accept the State's argument that Detective

Estes would not pass along CI#2's information unless he believed it to be credible

would essentially ignore long lines of caselaw stating that a judge issuing a

warrant must at least consider the veracity and basis of knowledge of an informant

when weighing his or her statement for probable cause considerations. A judge

cannot adequately complete his task if he is not given this information.

44. Here, the affidavit provides that the "MDEA has received information

that Kanaris has been selling drugs in the Central Maine Area from his residence

..." SPC <JI 4. No further detail is provided about the MDEA received this

16 Law enforcement found that the defendant's criminal record showed that "he had been

previously convicted of drug crimes and dealing in stolen property" among other things. State v.

Arbour 2016 ME 126, ,r 15 n.11, 146 A.3d 1106.

12

information. There is no way for the undersigned to know how the MDEA got this

information because the affidavit does not spell it out nor suggest information so

that an inference of how it was received could be made. Because of that, even if

it did come from a CI, there is no way to assess that Cl's veracity, basis of

knowledge, or reliability. It is wholly lacking and cannot support a probable cause

determination.

45. Next, CI#2 listed in the affidavit alleges first-hand knowledge of

Redmond being in possession of, and selling, heroin artd cocaine base. But,

nothing within the four corners of the affidavit (or outside it for that matter)

suggests that this CI has given reliable information in the past or addresses his/her

veracity. CI#2 does not make any statements that expose him/her to criminal

liability, such as that he bought or used some of the drugs from Redmond. Only

his/her observations are listed. This does not bolster his/her credibility.

Additionally, nothing is known about whether the CI offered this information in

exchange for some benefit he/ she received, or is hoping to receive, from the

Augusta Police Department, or if this CI is a concerned citizen. Supporting CI#2's

statements is his/her basis of knowledge, as the affidavit states that he/ she

personally observed Redmond with drugs. Because of the lack of detail about the

informant and the information that the MDEA received about Kanaris, the

probable cause question boils down to whether one believes the affidavit contains

"something more" and that the MDEA corroborated this information sufficiently.

46. MDEA found that Redmond had been charged with unlawful

possession of scheduled drugs a year prior, and that Clark was on conditions of

release for violating conditions, though the underlying charge is unknown. Over

the period of one day, 17 they observed Redmond with a pipe of the sort that is

commonly used to smoke illegal substances, and saw that Redmond again drove

a rental car. Rolfe left the Room twice and engaged in what the SAs believed to be

drug transactions through a pickup and drop-off of a man after a drive around a

block and when a man approached his drivers' side window and an "exchange"

occurred. Nothing is listed as being seen passed between Rolfe and the man.

Clark was seen getting a toilet paper roll and a clear plastic baggie out of the trunk

Rolfe's car.

47. Omitting the facts about Wilson leaving the older Rolfe's apartment,

probable cause is thin in this affidavit. Absolutely no information is provided

about the Cis' veracity or reliability. The information that the CI gave was not

very specific, just that he had seen Redmond engage in drug trafficking and

possession of drugs at an apartment a few weeks prior. He did not state that

Redmond used rental cars when trafficking, or that he would frequent hotels to

conduct his business, or even that he knew Redmond had been charged in the past

for unlawful possession. Essentially, there was nothing provided by this CI for

the police to corroborate, and the MDEA is relying on Clark's and Rolfe's activity

that they observed as "suspicious" as the "something more" that is required.

17 Nothing in the affidavit states it was one day, but they were called by the Augusta Inn on the

same day the warrant issued.

13

Unlike the detailed observations of the neighbors contained in the Allard affidavit,

the observations of the hotel staff cannot be considered as "nonconfidential

sources," because no specific observations were described in this affidavit.

48. At first glance this case may appear to be a close call, but only because

of the deference owed to the judge issuing the warrant. Notwithstanding the

deference owed, the typo in the date of birth of John Rolfe (if it is a typo), the lack

of information on the veracity and reliability of the CI, and the lack of "something

more", all support the Court's conclusion, after a positive reading of these facts in

their totality, that it cannot be reasonably inferred that it was probable to find

evidence of a crime or contraband within Room 209 or the vehicles, and thus that

the affidavit lacked sufficient probable cause to issue.

49. The final question for the undersigned to answer is if the affidavit did

not contain sufficient probable cause for the warrant to issue, does the good faith

exception save the evidence? The State argues that even if the affidavit is not

supported by probable cause, Kanaris' s motion should be denied under the good

faith exception to the exclusionary rule. The purpose of the exclusionary rule is to

deter unlawful police conduct, so evidence from an unlawful search should only

be suppressed when the officer had knowledge, "or may be properly charged with

knowledge" that the search violated the Fourth Amendment. United States v. Leon,

468 U.S. 897, 919 (1984) (citing United States v. Peltier, 422 U.S. 531, 539 (1975)).

50. The good faith exception should apply if the affidavit "provide[s]

evidence sufficient to create disagreement among thoughtful and

competent judges as to the existence of probable cause." Leon, 468 U.S. at 926. If

police acted under the authority of a search warrant later found to be invalid for

lack of probable cause, the good faith exception provides that the exclusionary rule

does not apply so long as law enforcement acted in objectively reasonable reliance

on the warrant. Id. at 922.

51. An officer's reliance on a subsequently invalidated search warrant is

objectively unreasonable when: (1) the affiant knows, or is reckless in not knowing,

that the warrant contains false information; (2) the issuing magistrate abandons

his neutral and detached role and serves as a rubber stamp for police activities; (3)

the affidavit is so lacking in indicia of probable cause that belief in its existence is

objectively unreasonable; and (4) the warrant is so facially deficient that it could

not reasonably be presumed to be valid. Id. at 923.

52. Herring v. United States, another Supreme Court case, more recently

discussed the good faith exception and determined that

[t]o trigger the exclusionary rule, police conduct must be sufficiently

deliberate that exclusion can meaningfully deter it, and sufficiently

culpable that such deterrence is worth the price paid by the justice

system. As laid out in our cases, the exclusionary rule serves to deter

deliberate, reckless, or grossly negligent conduct, or in some

circumstances recurring or systematic negligence.

14

555 U.S. 135, 144 (2009).

53. Despite the above, the Herring Court also made clear that, "[w]e

do not suggest that all recordkeeping errors by the police are immune from

the exclusionary rule. In this case, however, the conduct at issue was not so

objectively culpable as to require exclusion." Id. at 146. That case involved

a defendant's motion to suppress evidence on the grounds that his arrest

was illegal because law enforcement's computer systems had not been

updated to reflect that the warrant had been recalled. Id. at 137-38.

54. The Herring Court also discussed negligence of police officers

and explained that the defendant's claim that police negligence

automatically triggers suppression cannot be squared with the principles

underlying the exclusionary rule, as they have been explained in Supreme

Court precedent. The court elaborated that

[i]n light of our repeated holdings that the deterrent effect of

suppression must be substantial and outweigh any harm to

the justice system, we conclude that when police mistakes

are the result of negligence such as that described here,

rather than systemic error or reckless disregard of

constitutional requirements, any marginal deterrence does

not 'pay its way.' In such a case, the criminal should not'go

free because the constable has blundered.'

Id. at 147-48 (internal citations omitted).

55. In Maine cases considering the good faith exception, the Law Court has

often determined that the affidavit was so lacking in probable cause that an officer

could not reasonably rely on it, so the exception could not apply. See State v.

Johndro, 2013 ME 106, 82 A.3d 820 (unreasonable for officer to rely on affidavit that

described the only link between defendant and the crime as him driving his car in

the area at the time which is "entirely noncriminal and unsuspicious on its own");

State v. Diamond, 18 628 A.2d 1032 (Me. 1993) (affidavit was based on solely on

18 Johndro described Diamond clearly. The undersigned is excerpting the explanation below as it is

apt here. There was some suspicious activity in that case, but not enough for probable case.

In Diamond, we concluded that, because an affidavit based entirely on noncriminal

behavior contained no information from which to conclude that evidence of

criminal activity would be found at the time of the search, officers' reliance on the

warrant was not objectively reasonable. In that case, a drug enforcement agent

learned from the federal Drug Enforcement Agency that a confidential source,

whose information had already led to dozens of arrests for indoor marijuana

growing operations, had relayed that Diamond had received four shipments from

two companies idenlilied as "A.G.S. Inc." and "Light Mfg." The affidavit did not

specify that the informant suspected these companies of being suppliers of

marijuana seeds or growing equipment. Further investigation revealed that tax

assessors had been denied access to the inside of Diamond's residence, and that

Diamond's monthly electricity use far exceeded that of a typical residential

15

noncriminal behavior, which suggested nothing to conclude that evidence of a

crime would be found at the place to be searched, therefore the officers' reliance

on the warrant was objectively unreasonable). Beyond this, the Law Court has

not substantively addressed the good faith exception, instead finding on appeal

that probable cause existed and therefore mooting the exception. The undersigned

did not find other Superior Court cases addressing the good faith exception in any

way that would be helpful here. However, going back to the Maryland Greenstreet

case, after making its finding that probable cause did not exist within the four

corners of the affidavit, the Court of Appeals proceeded to address whether the

good faith exception could save the fruits of the search, despite the lack of probable

cause in the affidavit. It discussed relevant portions of Leon,

[n]oting that one purpose of the exclusionary rule is to alter the

behavior of individual law enforcement officers and their

departments to deter them from willful or negligent conduct

depriving a defendant of some right, the [Leon] Court observed that

this deterrent policy 'cannot be expected, and should not be applied,

to deter objectively reasonable law enforcement activity.'

898 A.2d 961, 976 (Md. 2006).

56. The Greenstreet Court determined that the good faith exception did not

apply in that case, because the affidavit facially showed a period of eleven months

between the trash seizure and the warrant request. Id. at 979. The only other

information in the affidavit that was suggestive of drug sales at the residence were,

one month prior to the warrant request, "anonymous and unestablished

informants [that] had complained of noise and increased vehicular traffic at [the

defendant's] residence." Id. The court focused on the fact that the affidavit did not

address criminal activity ongoing in the present tense, and did not describe any

additional surveillance closer in time to the warrant request. Id.

57. Because Maryland courts had long recognized the legal concept of

staleness of probable cause, the Court of Appeals could not

conclude that a reasonable, well-trained police officer executing the

warrant would believe that the warrant authorized the search

because the lack of probable cause [was] apparent on the face of the

customer. While conducting surveillance in a h eavily wooded area surrounding

Diamond's p roperty, the agent was accosted by two dogs, which came from and

returned toward the direction of Diamond's house, apparently to alert Diamond

to the presence of strangers. A justice of the peace issued a search warrant based

on these facts, .and agents seized mal'ijuana plants and indoor growing equipment

from Diamond's house the same day. On these facts, we held not only that the

affidavit failed to establish probable cause, but also that the good faith exception

did not apply. We concluded that reasonable judges could not disagree that the

affidavit, based solely on noncriminal behavior, failed to establish probable cause,

and that the agent's reliance on the warrant was not objectively reasonable.

State v. Johndro, 2013 rvIE 106, <JI 18, 82 A.3d 820 (internal citations omitted)

16

affidavit when the evidence giving rise to a belief in probable cause

[was] a year old and [did] not indicate continuing criminal activity.

Id.

58. The court noted that the typo was missed by the issuing judge, but that

error, which allowed a warrant with stale probable cause within the affidavit to

issue, was "not a mere technical deficiency of the warrant or an immaterial error

that should escape the notice of a reasonable w ell-trained officer as affiant ei ther."

Id. at 980. The court concluded by determining that exclusion of the evidence

would further the purposes of the exclusionary rule, because no police officer

could reasonably rely on the warrant due to the stale probable cause. Id.

59. In the case before this Court, it seems that the first and third instances

enunciated in Leon could cause the good faith exception not to apply. Each is

addressed briefly below.

(1) The affiant knows, or is reckless in not knowing, that the warrant

contains false information.

60. Here, a fair argument is made that the officer was reckless in not

knowing that that Rolfe had two date of births listed for him in the affidavit and

request for the search warrant. The undersigned finds this is reckless, or grossly

negligent, and not mere negligence because it is not one digit that is off with the

date of birth, but instead, an entirely different month, day, and year, resulting in a

39-year age difference. 19 Nothing suggests that law enforcement confirmed that

the Rolfe with two different DOBs was the same person, or whether it is a

junior/ senior issue. This is significant because Rolfe was one of the persons to be

searched, and a significant part of the probable cause determination hinged on a

known drug trafficker leaving the older Rolfe's apartment.

61. It is unknown if typos of this magnitude (if this is one) in search

warrants are a systemic problem. But, this does seem to go beyond a "mere

technical deficiency" or an "immaterial error." It is indeed true that "the Fourth

Amendment is not a bulwark against typos." United States v. Clark, 754 F.3d 401,

411 (7th Cir. 2014). However, this is not merely a "typo." The undersigned finds

it difficult to describe the unexplainable difference in dates of birth for "Rolfe" as

merely a typographical error when a significant portion of the probable cause rests

on a description of ostensibly one person with a 39-year difference in dates of birth

given. It is also difficult for the Court to find "good faith" when the reader of the

affidavit is asked to rely on barebones information from a "CI#2" (what happened

to "CI# l"?) without any sort of proof of reliability or veracity of the CI.

62. Additionally, the undersigned finds that not applying the "good faith"

exception in this case will serve as a deterrent to discourage "boilerplate" or "cut

19 In its Supplemental Memorandum of Law the State does not address this argument as Kanaris

has not alleged that information was included with reckless disregard of the truth.

17

and paste" affidavits. Moreover, not applying the exception here will encourage

proof reading of affidavits before they are submitted, and supporting confidential

informants' information with details about their reliability and veracity, or the

"something more" that the Law Court has explained is required.

(3) The affidavit is so lacking in indicia of probable cause that belief in

its existence is objectively unreasonable.

63 . The same analysis above is applicable here to some extent. The

discrepancy in Rolfe's date of birth, combined with the Cl's lack of reliability and

veracity, and that there is no explanation regarding how: the MDEA "received

information" about Kanaris trafficking drugs out of his Sidney home could cause

the affidavit to be so lacking in indicia of probable cause that belief in its existence

is objectively unreasonable. This is a harder argument to accept as an AAG

reviewed the warrant and a judicial officer signed off on it. However, the

undersigned is unclear that those implicit approvals are even considered in a good

faith analysis. Instead, the analysis appears to consider that the affidavit as written

is so deficient in probable cause that the officer should know it is objectively

unreasonable to rely on it before it is presented to an AAG for review or to a

judicial officer for issuance.

64. "There is always a temptation in criminal cases to let the end justify

the means, but as guardians of the Constitution, we must resist that temptation."

Wheeler v. State, 135 A.3d 282, 307 (Del. 2016). The Court finds the affidavit with

its deficiencies noted above does not provide probable cause for the search

warrant, and the good faith exception does not save the warrant. Accordingly, the

Motion to Suppress is granted. ·

Date: 3/20/19

en, Deputy Chief Justice

Maine Superior Court

Entered on the docket .3);)..1/ f 8

18

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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