State v. Appleton

• Decision Date: 29 November 1972
• Citation: 297 A.2d 363
• Parties: STATE of Maine v. Joe M. APPLETON.
• Court: Maine Supreme Court

Page 363

297 A.2d 363

STATE of Maine v. Joe M. APPLETON.

Supreme Judicial Court of Maine.

Nov. 29, 1972.

John B. Beliveau, County Atty., Thomas E. Delahanty, II, Asst. County Atty., Auburn, for plaintiff.

Gaston M. Dumais, Lewiston, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

Joe M. Appleton was tried before jury for the crime of unlawful possession of methamphetamine under 22 M.R.S.A. § 2210 and of unlawful possession of cannabis or marijuana under 22 M.R.S.A. § 2383. He was found guilty of both crimes. Sentenced on the former conviction to a term in Maine State Prison for not less than one year and not more than two years, he appeals to this Court from the judgment on several alleged grounds of error.

He states that

'1. The Court erred in denying Defendant's Motion to Suppress in that-

(a) The affidavit was insufficient on its face to justify the issuing of a search warrant by the Complaint Justice;

(b) The affidavit was insufficient on its face to justify the issuing of a search warrant which was to be executed in the nighttime;

(c) The warrant was illegally executed in that the officer did not give a receipt for the property taken; The inventory was not made in the presence of the Defendant;

The officer, before entering the apartment, did not give his authority and the purpose for his entry;

2. The Court erred in allowing the chemist to testify as an expert.

3. The verdict is contrary to the weight of the evidence.

4. The verdict is not supported by substantial evidence.'

I

Sufficiency of the affidavit respecting probable cause.

This issue was presented to the trial Court on a motion to suppress evidence seized in The affidavit incorporated by reference in the application for the search warrant and in the warrant itself (See, State v. Hollander, 1972, Me., 289 A.2d 419) reads as follows:

the search of the defendant's apartment on the third floor at 51 Knox Street in the City of Lewiston. The defendant complains about the partial denial of his motion which permitted the methamphetamine seized in the search to be used against him at trial.

'STATE OF MAINE

ANDROSCOGGIN, SS.

AFFIDAVIT

I, Robert A. Soucy, a Detective sergent with the Lewiston Police Department and a duly sworn police officer have reasonable grounds to believe that there is an amount of METHAMPHETAMINE (SPEED) in the appartment (sic) (6) 51 Knox Street Lewiston, Maine. This appartment (sic) is occupied by Joseph Appleton.

My grounds for believing that methamphetamine (speed) is present at the above location are: (1) On this date, a reliable co-operating citizen told me that he had purchased some methamphetamine in this apartment and saw more in the apartment today. (2) This co-operating citizen brought this methamphetamine in to be tested, and the test was positive. (3) This co-operating citizen also bought some methamphetamine on the 24th of August 1971 for us. (4) This cooperating citizen informed us that a (named female) and moved into this apartment with Joseph Appleton. This was checked out with where she used to live at the YWCA. She has not been seen there since Sunday August 22, 1971. She was observed by us at 51 Knox St. (4) (sic) This cooperating citizen also bought some LYSERGIC ACID DIETHYLAMIDE (LSD) for us previously.

Having attended a Federal Narcotics school, in Louisville Ky. I have been trained to make certain tests for dangerous drugs and have these kits at my disposal. The reliable co-operating citizen has given us other information in the past that was correct.

Robert A. Soucy

Det. Sergeant Robert A. Soucy

Sworn to before me this 25th day of August, 1971

James F. Cosgrove

James F. Cosgrove

complaint justice'

Methamphetamine, the object of the search, was property for which a search warrant could issue, as its possession by the defendant was unlawful under 22 M.R.S.A. § 2210. Rule 41(b)(3), M.R.Crim.P.

The affidavit discloses on its face that probable cause for the affiant's belief that methamphetamine, at the time of the application for the search warrant, was present in the Appleton apartment had to rest heavily upon the word of the unidentified 'cooperating citizen' or informant. The officer-affiant's conclusory statement in his application for the search warrant that he had probable cause to believe and did believe there was then being concealed in the apartment methamphetamine and that said contraband was being illegally maintained and possessed contrary to 22 M.R.S.A. §§ 2210, 2215 was for all that appears from the affidavit wholly founded upon the information given to him to the effect that, sometime on the very day of the application for, and execution, of the search warrant, the informant made a purchase of methamphetamine at the apartment and saw some more there at the time. The officer did not personally observe the transaction, nor was he in the apartment at any time before the search. The only nexus between the defendant's apartment and the drug transaction in question was that supplied by the informant's report. The affiant's personal observation that a named female was seen at that apartment and his confirmation through other sources that she had apparently left her usual habitat for the period of a few days furnished no factual data implying any connection with the type of illegal activity for which the search warrant was being obtained. At best, it only served to identify the apartment where the single also of methamphetamine took place and thus adduce some credibility to the report. Much, then, depended on the informant's reliability. The affidavit centers the foundational basis for the information's trustworthiness upon the fact that the informant's purchase at the apartment was turned over to the police who, upon analysis, personally observed it to be methamphetamine and upon the added circumstance that on the previous day the informant at the affiant's request had brought in some methamphetamine which tested out as such. That the August 24 sample was obtained through a purchase as directed remains in the realm of hearsay since no supporting personal observation of the purchase is revealed in the affidavit. The same must be said of the previous requested purchase of lysergic acid diethylamide (LSD), the date of which is not stated.

We must approach the question of the validity of the instant search warrant with a view to test it for compliance with the federal constitutional standards of the Fourth Amendment as defined by the Supreme Court of the United States, and, in addition thereto, for conformance with the added requirements of Rule 41, Maine Rules of Criminal Procedure. Under the Rule the affidavit must contain all the information in support of the magistrate's finding of the existence of probable cause. Neither the magistrate nor a reviewing court can go outside the four corners of the affidavit to determine the existence of probable cause. State v. Hawkins, 1970, Me., 261 A.2d 255; State v. Benoski, 1971, Me., 281 A.2d 128; State v. Cadigan, 1969, Me., 249 A.2d 750. The warrant must stand or fall solely on the contents of the affidavit. ¹ Evidence subsequently adduced at a hearing on a motion to suppress cannot be used by the trial court to rehabilitate and redeem an otherwise defective affidavit. United States v. Roth, 1967, 7 Cir., 391 F.2d 507.

The Complaint Justice who issued the warrant, however, in his determination of the existence of probable cause was not confined to the direct assertions of facts and circumstances disclosed by the affidavit, but could consider also all reasonable inferences of which such facts and circumstances were reasonable susceptible. State v. Benoski, supra; Irby v. United States, 1963, 114 U.S.App.D.C. 246, 314 F.2d 251, 253, cert. denied, 374 U.S. 842, 83 S.Ct. 1900, 10 L.Ed.2d 1064. But we pointed out in Benoski the emphasis which we accorded in Cadigan and Hawkins to the principle that affidavits which are as to any essential element merely conclusory will not suffice.

Affidavits for search warrants, on the other hand, must be tested and interpreted by the magistrate to whom application is made for their issuance and by the courts in appellate review 'in a commonsense and realistic fashion' without adherence to unnecessary technical niceties. State v. Benoski, supra; State v. Hawkins, supra; United States v. Ventresca, 1965, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. Insisting upon magisterial performance in a 'neutral and detached' way on the part of the warrant officer as opposed to mere rubber stamping of police requests, reviewing courts, in balancing the competing interests involved between the requirements of polic detection of criminal activity and the protection of the constitutional privilege of privacy, should and must pay substantial deference to the magistrate's determination of probable cause. State v. Hawkins, supra; Aguilar v. State of Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Such finding of probable cause is entitled to great weight. Jones v. United States, 1960, 362 U.S. 257, 270, 271, 80 S.Ct. 725, 4 L.Ed.2d 697; United States v. Melvin, 1969, 4 Cir., 419 F.2d 136. As stated in United States v. Ventresca, supra, 'the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.'

The central question facing the magistrate when asked to issue a search warrant in the instant case was, whether from all the factual circumstances disclosed in the affidavit and all the reasonable inferences flowing from them he was satisfied the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the criminal law, in this instance unlawful possession of methamphetamine, was being violated on the premises to be searched, and if the apparent facts set out in the affidavit were such that a reasonably discreet and prudent...