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