Opinion

State of Maine v. Oscar Nunez

  • 153 A.3d 84
  • 2016 ME 185
  • 2016 Me. LEXIS 209
Court
Supreme Judicial Court of Maine
Filed
Dec 22, 2016
Status
Published
Author
Humphrey
On the bench
Saufley, Alexander, Mead, Gorman, Jabar, Hjelm, Humphrey
Cited by
10 cases
Authority
More cited than 63.9%

The opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2016 ME 185

Docket: Pen-15-596

Argued: September 15, 2016

Decided: December 22, 2016

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

STATE OF MAINE

v.

OSCAR NUNEZ

HUMPHREY, J.

[¶1] Oscar Nunez appeals from a judgment entered in the Unified

Criminal Docket (Penobscot County, Anderson, J.) convicting him of one count

of arson, 17-A M.R.S. § 802(1)(A) (2015), and two counts of criminal

threatening, 17-A M.R.S. §§ 209(1), 1252(4) (2015), pursuant to a conditional

guilty plea through which he reserved the right to appeal the denial of his

suppression motion. Nunez argues that, because it was objectively

unreasonable for an officer to believe the search warrant established probable

cause, the court erred in applying the good faith exception to the exclusionary

2

rule to deny his motion. We conclude the warrant was supported by probable

cause and affirm.1

I. BACKGROUND

[¶2] On July 22, 2012, Special Agent Lori Renzullo of the Maine Drug

Enforcement Agency (MDEA) applied for a warrant to search the alleged home

of Oscar Nunez at 45 West Side Drive on Verona Island. Renzullo’s supporting

affidavit alleged the following facts.

[¶3] Earlier that day, an unidentified individual fired multiple

.380 caliber rounds at and set fire to a residence in Orrington belonging to

David Ireland. When law enforcement officers responded, they observed

marijuana plants on the porch and in the basement, and, with Ireland’s

consent, they searched the property. An investigator found a substance that

Ireland admitted was heroin and contacted Renzullo, who arrived at Ireland’s

residence and observed light brown powder consistent with heroin and

packaging consistent with crack cocaine.

[¶4] Ireland told Renzullo that a few months earlier, he worked for an

individual known as “Shorty,” whose real name Ireland believed to be Oscar

1 Because we conclude the warrant was supported by probable cause, we need not reach the

good faith exception argument raised in this appeal. See State v. Estabrook, 2007 ME 130, ¶¶ 1, 9,

932 A.2d 549.

3

Nunez. Ireland stated that Nunez2 was a drug dealer who sold crack cocaine

and that Ireland had purchased crack from Nunez in the past. He told

Renzullo that he worked for Nunez as a driver, but quit after only a week

because he was scared. According to Ireland, this upset Nunez, who thereafter

accused Ireland of stealing customers, attempted to run Ireland off the road

with his car, pepper sprayed Ireland’s vehicle, and once put a gun to Ireland’s

head in front of his children.

[¶5] Renzullo also spoke with a man who identified himself as Rolando

Cabrera. Cabrera said that he and Ireland were friends and that he was

present during the shooting and arson at Ireland’s residence. Cabrera told

Renzullo that he had mutual acquaintances with Shorty, knew him from New

York, and that Shorty’s real name was Oscar Nunez. Cabrera stated Nunez

used to live at 117 Union Street in Brewer, but had recently moved to Verona

Island. According to Cabrera, before moving to Verona Island, Nunez sold

crack on Ohio Street in Bangor as a member of a “Dominican gang” from the

end of 2010 to the fall of 2011. After the other gang members were arrested,

Nunez returned to Bangor and assumed control of the crack business.

2 During this exchange, Ireland referred to Nunez by his apparent street name, “Shorty.”

4

[¶6] Renzullo averred that Cabrera took two investigators to 45 West

Side Drive on Verona Island and identified the home as Nunez’s current

residence.3 Cabrera told the investigators that Nunez usually parked a Toyota

in the driveway and that Nunez was not home because there was no vehicle.

[¶7] In the affidavit, Renzullo also stated that, with the foregoing

information, she obtained a search warrant for Ireland’s residence.

Investigators searched the residence again and found additional drugs and

firearms. Renzullo then spoke to Ireland a second time about his dealings

with Nunez.

[¶8] During the second conversation, Ireland told Renzullo that he

drove Nunez around for about a week in vehicles Nunez rented from a Toyota

dealership. Ireland stated Nunez had also wanted him to sell drugs and gave

him ten bags of crack and heroin. Ireland maintained that he never sold any of

the drugs, that Nunez threatened Ireland with a gun after Ireland used some

of the heroin, and that Nunez asked Ireland to wire sums of money ranging

from $500 to $1,500 to individuals in New York on ten or twelve occasions

3 At the suppression hearing, testimony revealed that in fact another individual, who was

associated with Cabrera, took investigators to the Verona Island residence. Renzullo believed it

was Cabrera who took the other agents to the Verona Island residence at the time she wrote the

warrant affidavit.

5

over several months. Ireland also told Renzullo he saw Nunez carry twenty to

forty bags of crack “in his crotch” on several occasions.

[¶9] Renzullo further averred that she had interviewed a cooperating

defendant (CD) on July 17, 2012. The CD, who was arrested on a drug-related

offense, was known to Renzullo and had provided the MDEA reliable

information in the past. The CD informed Renzullo that a “new group of

Dominicans” was operating in the area with operations believed to be based in

Brewer because Shorty arranged for drug buys to occur on School Street in

Brewer. The CD had purchased crack from Shorty five to ten times in the

previous month and gave Renzullo the telephone number to place a crack

order. The CD thought the voice in the number’s voicemail was Shorty’s, but

did not know for sure. The voicemail message informed the caller: “If you are

wearing a wire or you’re snitching, I’ll blow your brains out.”

[¶10] Renzullo concluded with the assertion that based upon her

experience, education, training, and study,4 it is common for those involved in

drug trafficking to keep evidence of their criminal activity at their residences.

[¶11] On July 22, 2012, the District Court (Ellsworth, Mallonee, J.)

issued a warrant authorizing officers to search Oscar Nunez’s residence at

4 Renzullo averred that she had been a law enforcement officer for over ten years, and a special

agent with the MDEA for almost three years.

6

45 West Side Drive on Verona Island. The court concluded that based on the

Renzullo affidavit, there was probable cause to search for and seize any drugs,

drug paraphernalia, and related evidence connected to the drug dealing

business.

[¶12] State Fire Marshal Investigator Stewart Jacobs and several MDEA

agents executed the search warrant at 45 West Side Drive.5 At the property,

Jacobs saw a six-pack holder of “Molotov cocktails” and a .380 caliber

handgun. Jacobs then applied for and obtained a second warrant for the

Verona Island property, which attached and incorporated the Renzullo

affidavit, to seize the containers and gun as evidence related to the arson at

Ireland’s residence. The evidence seized pursuant to this second warrant is

the subject of the motion to suppress at issue here.

[¶13] On January 30, 2013, Nunez was charged by indictment with four

counts: aggravated attempted murder (Class A), 17-A M.R.S. § 152-A(1)(A)

(2015); arson (Class A), 17-A M.R.S. § 802(1)(A); and two counts of criminal

threatening (Class C), 17-A M.R.S. §§ 209(1), 1252(4). On April 2, 2013, Nunez

filed a motion to suppress the evidence seized pursuant to the second warrant

5 These facts are drawn from the trial court’s findings following the hearing on Nunez’s motion

to suppress and are based on competent evidence contained in the suppression record. See State v.

Lovett, 2015 ME 7, ¶ 3, 109 A.3d 1135; see also State v. Arbour, 2016 ME 126, ¶ 8, 146 A.3d 1106.

7

to search the Verona Island property, including the fuel containers, Molotov

cocktails, and the gun. Nunez contended that the second search warrant was

tainted by the unlawful initial search relying on the Renzullo affidavit, which

failed to supply probable cause that evidence of illegal drug activity would be

found at the property.

[¶14] On September 30, 2013, the Superior Court (Anderson, J.) held a

hearing on the motion to suppress. Special Agent Renzullo and State Fire

Marshal Investigator Jacobs testified. The court concluded that the Renzullo

affidavit failed to establish probable cause to search the Verona Island

property, and emphasized two facts. First, the court noted, “although there is

reason to believe that Mr. Nunez sold drugs and had provided drugs to David

Ireland within the last few months, none of that activity is linked directly to

the Verona Island residence.” Second, Renzullo failed to state how the

individual who led officers to the Verona Island address knew Nunez lived

there. The court ultimately concluded that the evidence seized pursuant to

the second warrant was nonetheless admissible because Jacobs acted in good

faith in applying for and executing the second warrant. The court therefore

denied the motion to suppress by written order dated December 3, 2013.

8

[¶15] On September 11, 2014, the State dismissed the attempted

murder charge and Nunez entered conditional guilty pleas to the remaining

charges. On November 12, 2015, the court sentenced Nunez to twenty years

of imprisonment on the arson charge, with all but eight years suspended, and

four years of probation, and four years of imprisonment on both criminal

threatening charges, to be served concurrently with the arson sentence.6

Nunez timely appealed from the judgment of conviction. See 15 M.R.S.

§ 2115 (2015); M.R. App. P. 2.

II. DISCUSSION

A. Issue on Appeal

[¶16] The court found that the affidavit in support of the first warrant

was insufficient to establish probable cause to search Nunez’s residence, but

concluded that the evidence was nonetheless admissible pursuant to the good

faith exception. The State did not appeal from, and does not challenge, the

conclusion that the Renzullo affidavit failed to generate probable cause to

conduct the initial search. Rather, in this appeal, the parties have only briefed

and argued whether the good faith exception applies to the seizure of

6 Nunez faced federal charges, delaying his sentencing in this matter. At the Rule 11 hearing, the

court accepted the conditional guilty plea and continued sentencing until after the resolution of the

federal case.

9

evidence pursuant to the second warrant.7 See United States v. Leon,

468 U.S. 897, 923-24 (1984).

[¶17] Notwithstanding the parties’ focus on good faith, we first review

whether the initial warrant was supported by probable cause. See State v.

Estabrook, 2007 ME 130, ¶¶ 1, 9, 932 A.2d 549 (affirming trial court’s denial

of a motion to suppress on the ground that the warrant affidavit was

supported by probable cause and declining to address the good faith

exception); State v. Marquis, 525 A.2d 1041, 1042-43 (Me. 1987) (declining to

address good faith—the only issue argued by the State on appeal—and

instead first considering probable cause).8

7 Although the motion to suppress was nominally directed at the evidence seized pursuant to

the warrant obtained by Jacobs, Nunez argues the evidence was tainted by the initial unlawful

search pursuant to the warrant obtained by Renzullo. The Renzullo affidavit and the initial search

for drug evidence is therefore the focus of our discussion here. See State v. Johndro, 2013 ME 106,

¶¶ 8, 19-20, 22, 82 A.3d 820.

8 This is consistent with our practice of first determining whether a constitutional violation

occurred before reaching the good faith issue. See, e.g., Arbour, 2016 ME 126, ¶ 16 n.12,

143 A.3d 1106 (“Because we conclude that there was a substantial basis for the finding of probable

cause to issue the search warrant, we do not consider the State’s alternative ‘good faith’

argument.”); State v. Nadeau, 2010 ME 71, ¶ 48 n.10, 1 A.3d 445 (“We do not discuss the Superior

Court’s application of the good faith exception because the search warrant, which authorized the

July forensic examination of the computer, never ‘expired.’”); Estabrook, 2007 ME 130, ¶¶ 1, 9,

932 A.2d 549; State v. Veglia, 620 A.2d 276, 277-79 & n.3 (Me. 1993) (holding that an issuing

magistrate had a substantial basis for a probable cause finding and declining to address good faith);

State v. Tarantino, 587 A.2d 1095, 1097-98 (Me. 1991) (concluding that a search was valid pursuant

to the automobile exception and declining to decide the good faith issue); State v. Marquis,

525 A.2d 1041, 1042-43 (Me. 1987).

In cases considering the good faith exception, we have concluded that it did not apply because

the warrants were so deficient that reliance on them was objectively unreasonable. See Johndro,

2013 ME 106, ¶¶ 19-20, 82 A.3d 820; State v. Diamond, 628 A.2d 1032, 1034 (Me. 1993). To date,

10

B. Probable Cause Standard

[¶18] “When reviewing the denial of a motion to suppress, we review

the trial court’s factual findings for clear error . . . .” State v. Nadeau,

2010 ME 71, ¶ 15, 1 A.3d 445. “Legal conclusions are reviewed de novo.”

State v. Simmons, 2016 ME 103, ¶ 12, 143 A.3d 819. “[W]e review directly the

finding of probable cause made by the magistrate who issued the warrant,

affording great deference to the issuing magistrate.” State v. Wright,

2006 ME 13, ¶ 8, 890 A.2d 703. The court must not “make a de novo

determination of probable cause,” State v. Crowley, 1998 ME 187, ¶ 4,

714 A.2d 834 (quotation marks omitted), but “must give the affidavit a

positive reading and review the affidavit with all reasonable inferences that

may be drawn to support the magistrate’s determination.” Wright,

2006 ME 13, ¶ 8, 890 A.2d 703 (quotation marks omitted).

[¶19] “Probable cause is established when, given all the circumstances

set forth in the affidavit before [the magistrate], including the veracity and

basis of knowledge of persons supplying hearsay information, there is a fair

we have not held that evidence obtained from an unlawful search was admissible pursuant to the

good faith exception. We note that a number of state supreme courts have rejected the good faith

exception on state constitutional grounds. See, e.g., State v. Canelo, 653 A.2d 1097,

1105 (N.H. 1995); State v. Gutierrez, 863 P.2d 1052, 1068 (N.M. 1993); State v. Oakes, 598 A.2d 119,

121-22 (Vt. 1991); State v. Novembrino, 519 A.2d 820, 857 (N.J. 1987).

11

probability that contraband or evidence of a crime will be found in a

particular place.” State v. Rabon, 2007 ME 113, ¶ 22, 930 A.2d 268 (quotation

marks omitted). “In order to meet the probable cause standard, the affidavit

must set forth some nexus between the evidence to be seized and the

locations to be searched.” Simmons, 2016 ME 103, ¶ 11, 143 A.3d 819

(quotation marks omitted).

[¶20] We apply the “totality of the circumstances approach” to

probable cause, as set forth by the United States Supreme Court in Illinois v.

Gates, 462 U.S. 213, 230 (1983). Rabon, 2007 ME 113, ¶ 22, 930 A.2d 268.

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. Id. ¶ 25. “[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.” Id. ¶ 23 (quotation

marks omitted).

[¶21] Common indicia of the reliability of an informant’s account

include first hand observations of illegal activity, State v. Arbour,

12

2016 ME 126, ¶ 13, 146 A.3d 1106, the informant’s past reliability, Rabon,

2007 ME 113, ¶ 27, 930 A.2d 268, and information detailing the informant’s

own involvement in illegal activity that could expose the informant to criminal

liability, State v. Dignoti, 682 A.2d 666, 670 (Me. 1996). “People do not lightly

admit a crime and place critical evidence in the hands of the police in the form

of their own admissions. Admissions of crime, like admissions against

proprietary interests, carry their own indicia of credibility—sufficient at least

to support a finding of probable cause to search.” State v. Appleton, 297 A.2d

363, 369 (Me. 1972) (quotation marks omitted).

C. Whether the Renzullo Affidavit Established Probable Cause

[¶22] Read individually and as a whole, Ireland’s, Cabrera’s, and the

CD’s accounts bear several hallmarks of reliability. Renzullo averred that she

knew the CD and that the CD had been reliable in the past. Cabrera knew

Nunez and had “mutual acquaintances” with him in New York. Ireland,

Cabrera, and the CD detailed specific facts about Nunez’s background and

illegal drug trafficking activity in the Bangor and Brewer area. Ireland and the

CD provided firsthand knowledge of Nunez’s possession and sale of drugs, the

most recent occurring within the previous month. Ireland and the CD also

admitted to purchasing and using drugs—admissions that could have exposed

13

them to criminal liability and thus were unlikely to be offered unless

grounded in truth.

[¶23] Contrary to Nunez’s argument, there was sufficient information

in the affidavit to support a probable cause finding that Nunez resided at the

Verona Island property. Cabrera told officers that Nunez moved from Brewer

to Verona Island and personally9 led officers to the property, where he stated

Nunez was not home because there was no Toyota parked in the driveway.10

Officers were not necessarily required to independently corroborate nor did

the affidavit need to detail Cabrera’s basis of knowledge to satisfy probable

cause; such rigid requirements would be inconsistent with the totality of the

circumstances test. See Rabon, 2007 ME 113, ¶¶ 23, 31, 930 A.2d 268 (“An

affidavit’s inclusion of information regarding the observations of a person in

addition to an informant is by no means required to establish probable cause

under the totality of the circumstances test.”); Crowley, 1998 ME 187, ¶¶ 6-7,

714 A.2d 834 (“[T]he basis of knowledge is no longer a separate and

9 As noted, in fact another individual associated with Ireland and Cabrera led police to the

residence. See supra n.3. Although Nunez appears to have intended to use the suppression hearing

to attack alleged errors and omissions in the warrant affidavit, a criminal defendant must first make

a substantial preliminary showing in order to be entitled to a testimonial hearing to challenge those

deficiencies. See State v. Diana, 2014 ME 45, ¶ 11 n.1, 89 A.3d 132 (citing Franks v. Delaware,

438 U.S. 154 (1978)).

10 That Nunez drove a Toyota is consistent with Ireland’s information that when he was hired as

a driver, he drove Nunez around in vehicles rented from a Toyota dealership.

14

independent requirement but one that is closely intertwined with the other

elements to illuminate the question of probable cause.”).

[¶24] Nunez’s strongest argument, which was the primary basis for the

trial court’s probable cause conclusion, is the absence of a nexus between the

illegal activity and the place to be searched: nothing in the affidavit specifically

connected Nunez’s drug activity to the Verona Island property. Renzullo

generally averred that in her experience as a drug enforcement agent, drug

traffickers typically keep evidence of drug activity in their homes.

[¶25] The affidavit must indeed establish a sufficient nexus, but direct

nexus evidence is not necessarily required: “The nexus need not, 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].” State v. Samson, 2007 ME 33, ¶ 15, 916 A.2d 977

(quotation marks omitted).

[¶26] In Samson, multiple persons reported that the defendant took

nude pictures of them when they were under eighteen years old.

2007 ME 33, ¶ 3, 916 A.2d 977. One victim stated that Samson made him

perform sexual acts and took pictures. Id. ¶¶ 3-4. The victims told the

15

investigating detective that Samson had a computer, burnable discs, cameras,

and a video camera in his residence. Id. ¶ 5. One of the victims once

discovered nude pictures of his ten-year-old brother on Samson’s computer.

Id. ¶ 3. The detective, in submitting the warrant affidavit, averred that based

on his training, knowledge, and experience, individuals who engage in sexual

acts with minors and collect pictures would likely keep image files on a

computer. Id. ¶ 5-6.

[¶27] We stated that an “officer’s opinion that a person engaged in the

creation and collection of child pornography through the use of computers

and other electronic devices is likely to keep evidence of such use in his or her

home, may be sufficient to establish a nexus between the evidence sought and

the suspect’s residence.” Id. ¶ 16. In light of the victims’ statements in the

affidavit and the detective’s opinion, we held that a reasonable person could

conclude that evidence of illegal activity would be found in Samson’s home

and therefore a sufficient nexus was established to satisfy probable cause. Id.

¶¶ 17-18.

[¶28] We have not yet had occasion to consider an affidavit, like the one

presented here, with an attenuated nexus between substantial drug trafficking

activity and a suspect’s residence. Numerous federal circuit courts of appeal,

16

however, have held that probable cause may exist to search a suspected drug

trafficker’s residence, even without any specific drug activity tied to the

residence. See, e.g., United States v. Barnes, 492 F.3d 33, 37 (1st Cir. 2007)

(“[W]hen a defendant sells drugs outside his home, it is reasonable to

conclude that there is evidence of his drug dealing activity in the home . . . .”);

United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir. 2002); United States v.

Hodge, 246 F.3d 301, 306 (3d Cir. 2001) (“It is reasonable to infer that a

person involved in drug dealing on such a scale would store evidence of that

dealing at his home.”); United States v. McClellan, 165 F.3d 535, 546

(7th Cir. 1999); United States v. Feliz, 182 F.3d 82, 88 (1st Cir. 1999)

(concluding that probable cause existed to search the apartment of a known

drug trafficker, notwithstanding the lack of direct evidence linking drug sales

and the apartment); United States v. Williams, 974 F.2d 480, 481-82

(4th Cir. 1992); United States v. Angulo-Lopez, 791 F.2d 1394, 1399

(9th Cir. 1986) (“In the case of drug dealers, evidence is likely to be found

where the dealers live.”).

[¶29] Particularly significant are detailed facts substantiating

allegations that the suspect is a drug trafficker. Such indicators may include

possessing drug quantities that would exceed personal use, using rental cars,

17

conducting organized distribution and sales, and carrying and concealing

pre-packaged drugs. See Hodge, 246 F.3d at 306. The suspect must store

goods related to the drug business somewhere. See id. If the suspect is a

prolific drug trafficker, it therefore may be reasonable to infer that evidence of

drug trafficking, including the drugs, business records, cash, guns, and other

paraphernalia, will be found at the residence. See id.; McClellan, 165 F.3d at

546; Feliz, 182 F.3d at 87-88.

[¶30] Probable cause “is flexible and based on common sense” and does

not require proof that evidence of a crime will in fact be found in the place to

be searched. State v. Martin, 2015 ME 91, ¶ 10, 120 A.3d 113 (quotation

marks omitted); see also Feliz, 182 F.3d at 87 (“There is no requirement that

the belief be shown to be necessarily correct or more likely true than false.”).

Our review of probable cause is not de novo; we are limited to determining

whether the issuing magistrate had a “substantial basis” to issue the warrant,

drawing all reasonable inferences in favor of probable cause. Wright,

2006 ME 13, ¶ 8, 890 A.2d 703; Crowley, 1998 ME 187, ¶ 4, 714 A.2d 834.

[¶31] Here, the Renzullo affidavit contained detailed information from

multiple sources, particularly Ireland, that substantiated Nunez’s active drug

trafficking enterprise, and established that Nunez resided at the Verona Island

18

property. Renzullo averred that, based on her knowledge and experience,

evidence of drug trafficking would likely be found in a drug trafficker’s home.

[¶32] Based on the totality of circumstances, these facts generated a

reasonable inference that there was a fair probability that drug-related

evidence would be found at the Verona Island property. See Samson,

2007 ME 33, ¶ 17 & n.8, 916 A.2d 977; Rabon, 2007 ME 113, ¶ 22, 930 A.2d

268; see also Hodge, 246 F.3d at 306; McClellan, 165 F.3d at 546; Feliz, 182

F.3d at 87-88. We therefore conclude the issuing judge had a substantial basis

to find probable cause for the warrant to issue, Crowley, 1998 ME 187, ¶ 4,

714 A.2d 834, and affirm the denial of the motion to suppress.

The entry is:

Judgment affirmed.

Hunter J. Tzovarras, Esq. (orally), Hampden, for appellant Oscar Nunez

R. Christopher Almy, District Attorney, and Tracy Collins, Asst. Dist. Atty.

(orally), Prosecutorial District V, Bangor, for appellee State of Maine

Penobscot County Unified Criminal Docket docket number CR-2012-3918

FOR CLERK REFERENCE ONLY

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