State v. Arbour
| Decision Date | 11 August 2016 |
| Docket Number | Docket No. Ken–15–519. |
| Citation | 146 A.3d 1106,2016 ME 126 |
| Parties | STATE of Maine v. Franklin F. ARBOUR Jr. |
| Court | Maine Supreme Court |
Luann L. Calcagni, Esq. (orally), Augusta, for appellant Franklin F. Arbour, Jr.
Janet T. Mills, Attorney General, and Katie Sibley, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
[¶ 1] Franklin Arbour Jr. appeals from a judgment of conviction for multiple drug offenses entered by the Superior Court (Kennebec County, E. Walker, J. ) following a jury trial. He contends that (1) the court erred by denying his motion to suppress evidence seized pursuant to a search warrant; (2) the court erred by denying his motion to suppress a statement he made to a police officer before receiving Miranda warnings; and (3) the evidence of drug quantity at trial was insufficient to support his conviction for aggravated trafficking of heroin.1 We affirm the judgment.
[¶ 2] On September 17, 2014, Augusta police sought a search warrant to conduct a search at an apartment located at 58 River Street in Augusta. In the affidavit accompanying the request for a search warrant, Detective Eric Dos Santos offered the following facts. He had recently arrested John Howard on outstanding warrants and for a probation violation. While Howard was detained at the county jail on a probation violation hold, he agreed to provide information regarding stolen tools found in his vehicle and other criminal activity; the detective arranged to have the probation hold lifted and Howard released. Howard told the detective that he had sold stolen tools for Arbour; that Arbour sold stolen merchandise out of his residence on the top floor of 58 River Street; that Howard had made multiple trips for Arbour from the apartment to sell or pawn stolen tools in Maine, New Hampshire, and Massachusetts; and that he would receive gas money and heroin from Arbour in exchange for selling the tools for him. Howard also told the detective that he would buy heroin from Arbour for his own use, and that Arbour usually had “a couple of bundles” of heroin—meaning at least twenty bags of heroin—in his apartment at any given time. Howard also described an air compressor that he had seen at Arbour's apartment on his most recent visit, which Detective Dos Santos noted matched the description of a compressor that was recently reported stolen in Augusta. Finally, Howard provided a hand-drawn map of Arbour's apartment and indicated that not only were there stolen tools in the apartment, but there was also a marijuana grow operation in the adjoining attic. The detective confirmed through a police database that Howard had sold tools to pawn shops in Maine, New Hampshire, and Massachusetts. The court (Augusta, E.Walker, J. ) issued a search warrant authorizing, inter alia, a search of the apartment and the seizure of heroin, marijuana, other scheduled drugs, and tools.2
[¶ 3] Viewed in the light most favorable to the jury's verdict, the evidence at trial establishes the following facts. State v. Robinson, 2016 ME 24, ¶ 2, 134 A.3d 828. On September 17, 2014, officers with the Augusta Police Department and the Maine Drug Enforcement Agency executed the search warrant at the top floor apartment at 58 River Street, which was known by police to be the residence of Arbour and his girlfriend, Angie Sousa. When law enforcement arrived to execute the warrant, Sousa was the only person present in the apartment. At some point, Arbour showed up at the apartment without being contacted by law enforcement3 and spoke with Detective Jason Cote, who was in the apartment's entry area. Arbour told Cote to “go ahead and arrest me now” and stated that his girlfriend, Sousa, “had nothing to do with it.”4 Cote placed Arbour under arrest and notified Dos Santos, who was searching the attic at the time. Both detectives transported Arbour to the Augusta Police Department. At the police department and before receiving Miranda warnings, Arbour made an incriminating statement, which was recorded by an interview room camera.
[¶ 4] During the search, the police found 114 marijuana plants and approximately twenty-five pounds of processed marijuana in the apartment and the adjoining attic. In the only room being used as a bedroom, the police found several items that would likely be used by a man, as well as a debit card in Arbour's name, in the nightstand on the left-hand side of the bed. In the same area, the police also found a thermos, which contained, relevant to this appeal, 1,252 packets of what the police believed to be heroin and a sandwich bag containing what appeared to be cocaine base.5
[¶ 5] On November 14, 2014, a grand jury returned an eight-count indictment charging Arbour with the following:
Arbour pleaded not guilty to all charges at his arraignment on November 25, 2014.
[¶ 6] Arbour moved to suppress all evidence seized from the apartment, and he later filed a supplemental motion for a Franks hearing pertaining to the search warrant affidavit. See Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). A hearing was held on May 26, 2015, and the court (Kennebec County, Murphy, J. ) denied both motions.7 In its ruling, the court found that there was a substantial basis for the finding of probable cause supporting the warrant because (1) the information provided by Howard as related in the affidavit was very specific; (2) Howard demonstrated a base of knowledge from his criminal exploits with Arbour; (3) Howard's credibility was supported by his statements against penal interest regarding his use and possession of heroin; and (4) his credibility was further bolstered by the corroborating information regarding his selling of tools and his description of an air compressor in the apartment.
[¶ 7] Arbour also moved to suppress a statement he made in the interview room at the police department before receiving Miranda warnings. On July 23, 2015, the court held a testimonial hearing on the motion. Detectives Cote and Dos Santos testified, and the court watched the interview room video. In an order dated July 24, 2015, the court (Augusta, Fowle, J. ) denied Arbour's motion.
[¶ 8] The court found the following facts, which are supported by record evidence. See State v. Lovett, 2015 ME 7, ¶ 3, 109 A.3d 1135. At some point between the time when Arbour was arrested at the apartment and when he made the statement in question at the police department, Dos Santos was informed that Arbour had asked to be arrested upon his arrival at the apartment. After Arbour was taken to the police department, he was put in an interview room. He was alone in the room for approximately two minutes, handcuffed behind his back. Detective Dos Santos entered the room and spent less than two minutes “describing what had occurred that day,” including that Sousa, Arbour's girlfriend, had been arrested and charged with drug offenses. Arbour then stated, 8 At that point, the detective instructed Arbour to not make any further statements, finished explaining what had occurred that day, and then provided him with the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After Arbour invoked his right to remain silent, the detective terminated the interaction.
[¶ 9] Based on its findings, the court concluded that Arbour was not subjected to custodial interrogation at the time he made his incriminating statement because “the actions of Detective Dos Santos in providing [Arbour] with a summary of the evidence against him, and information as to the status of Ms. Sousa, [does not] constitut[e] a statement reasonably likely to elicit an incriminating response, nor was such a statement calculated to do so.”
[¶ 10] A two-day trial commenced on August 24, 2015. The jury viewed the relevant portion of the interview room video. Arbour presented evidence to suggest that he and Sousa were merely housesitting at the apartment for an incarcerated friend, that multiple people had access to the apartment, and that he was not responsible for the drugs. He moved for a judgment of acquittal based on insufficiency of the evidence at the close of the State's case-in-chief and again at the close of trial. The court (Kennebec County, E. Walker, J. ) denied both motions. Six counts went to the jury,9 and the jury returned verdicts of guilty on all counts. Arbour moved for a judgment of acquittal or a new trial, and the court denied the motion after a hearing on October 14, 2015. The court sentenced Arbour to twenty-five years in jail on Count 1, with all but eighteen years suspended, and four years' probation, with concurrent sentences on all other charges. Arbour timely appealed to us from both the conviction and...
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