State v. Gamage

• Decision Date: 11 June 1975
• Citation: 340 A.2d 1
• Parties: STATE of Maine v. Lawrence M. GAMAGE.
• Court: Maine Supreme Court

Page 1

340 A.2d 1

STATE of Maine v. Lawrence M. GAMAGE.

Supreme Judicial Court of Maine.

June 11, 1975.

Galen P. LaGassey, County Atty., Rockland, for plaintiff.

Richardson, Hildreth, Tyler & Troubh by William B. Troubh, Robert E. Noonan, Ronald D. Russell, Portland, for defendant.

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

DELAHANTY, Justice.

Evidence seized under a search warrant was instrumental in securing defendant's conviction for possession of marijuna. Defendant's appeal attacks the validity of the search warrant and asserts that the Superior Court erred in denying defendant's motion to suppress the evidence procured by the search.

The search warrant issued upon a law officer's affidavit sworn to before a Complaint Justice (magistrate) of Knox County. Since the physical character of the documents submitted in support of the search warrant is an important aspect of this appeal, we will describe these documents as accurately as we can by setting them out in the pages that follow. Defendant's appeal assigns the following errors to the magistrate:

1) failure to state on the warrant specific grounds for probable cause;

2) failure to attach the affidavit to the warrant;

3) failure to incorporate the supporting affidavit by specific reference in the warrant; and

4) reliance on grounds for probable cause which were not supported by the affidavit.

Because this appeal presents numerous questions concerning the technical requirements for the issuance of valid search warrants, and entails an exacting scrutiny of recent decisions of this Court, we have revised the format of defendant's appeal and, mindful of the points of appeal properly before us, have organized our opinion in the following manner:

1) whether the documents before the Complaint Justice comprised one or two affidavits;

2) whether these documents were adequately incorporated to the search warrant itself so as to satisfy the requirements of Me.R.Crim.P. 41(c); and

3) if adequately incorporated, whether these documents were sufficient for probable cause.

Upon considering these questions, we hold that the legal issues raised by defendant do not suffice to void the warrant or to show error in the denial of defendant's motion to suppress; therefore we deny the appeal.

I. The Documents before the Complaint Justice

The record presents the following materials as the documentary basis for the magistrate's finding of probable cause, upon which the warrant was issued.

STATE OF MAINE

Knox, ss.

DISTRICT COURT

DISTRICT six

DIVISION OFKnox

AFFIDAVIT AND REQUEST FOR STARCH WARRANT

To Wayne R. Crandall, Complaint Justice, of the District Court to be holden at Rockland in the County of Knox, and State of Maine.

Louis A. Lewis a police officer of Rockland, in the County of Knox in said State of Maine, on oath complains that he has probable cause to believe and does believe that on the premises known as Room 27, 3rd Floor, Wayfarer Hotel located at Union and Park Street, in the City of Rockland, County of Knox in said State, said premises being owned/occupied by Larry Gamage and/or Tim Carey

There is now being concealed certain property, to wit; marijuana

that said property (state reason for seizure) is contraband. This request is also based upon the information in the sworn statement attached.

WHEREFORE, the said Louis A. Lewis prays that a warrant may issue authorizing a search of the above described premises, for said property; and that if said property, or any part of the same be there found, the said Larry Gamage and/or Tim Carey, or the person having said property in his custody or possession, may be arrested and held for examination as the law directs.

The said Louis A. Lewis on oath further states that he is positive that the property is in the place to be searched and it is necessary to prevent the removal of said property, that a warrant issue authorizing a search in the nighttime of the above described premises.

Dated at Rockland, this Twenty-First day of November, 1972.

Louis A. Lewis

s/ _ _

Subscribed and sworn to by the said Louis A. Lewis this 21st day of November, 1972, before me

Wayne R. Crandall

s/ _ _

District Judge

Complaint Justice

(Affidavit)

I, Louis A. Lewis, a police officer of the City of Rockland, being first duly sworn, hereby depose and state that on November 21, 1972 I was in room 26 of the Wayfarer Hotel on the third floor. I observed a subject approach room 27 in said hotel and knock on the door. When the door opened the subject asked the occupant of said room if he would sell the subject 'stuff'. The occupant of said room 27 left the hotel and I observed him walking into the Tourist House next door known as the Smith House at 39 Park St. Said occupant known to me as Tim Carey, told the subject that he had to leave to get some marijuana next door.

Said Carey returned within 5 minutes, observed by and went into room 27 with the subject. Carey stated as they passed my door that he couldn't wake the person next door and didn't get anything there.

The subject returned from said room 27 within 5 minutes and I took from said subject a marijuana cigarette which the subject stated was obtained from Tim Carey.

The subject further stated that Tim Carey had in his possession a quantity of marijuana in a manila envelope in said room.

I believe the subject who stated the above facts to be reliable because I have known the subject for approximately one year personally.

The subject has no police record and has a healthy family background. The subject is employed in a position of responsibility handling large sums of money. The subject's employers have told me that they regard the subject as trustworthy.

s/ Louis Lewis

November 21, 1972

Subscribed & Sworn to

Before me

s/ Wayne R. Crandall

As the above documents appear in the record before us, the former is titled 'Affidavit and Request for Search Warrant.' Henceforth we will refer to it as the 'A & R form.' By its language it purports to be an application for a search warrant. The second document reproduced above appears in the guise of an untitled statement with a jurat corresponding in time and dignity to the jurat of the A & R form. This untitled statement has received from us the heading '(Affidavit)', and we shall refer to it as 'the supporting affidavit.' ¹

We must determine whether the above documents satisfy the requirement of Me.R.Crim.P. 41(c) that '(a) warrant shall issue only on an affidavit sworn to before a person authorized by this rule to issue warrants.' ² The initial question is whether the two documents, the A & R form and the supporting affidavit, are in such a condition as to be deemed 'an affidavit' in satisfaction of Rule 41(c).

Our early cases in the law of search and seizure disclose that in former days, the A & R form was often the sole document used by law officers in applying for a search warrant. See, e. g., State v. Cadigan, Me., 249 A.2d 750, 754-55 (1969). However, the A & R form, even though purporting to be an affidavit, was so skeletal in its design and typographic layout as to leave little room for the elaboration of the grounds of probable cause, which is an essential requirement for the issuance of a warrant under Rule 41(c). See note 2 supra. Thus the A & R form often amounted to little more than an accusatory and conclusory recital, insufficient to establish probable cause. See Cadigan, supra, 249 A.2d at 754; State v. Benoski, Me., 281 A.2d 128, 130 (1971); State v. Stone, Me., 322 A.2d 314, 319 (1974). Accordingly, law officers sought to buttress the A & R form with more detailed affidavits, submitted in conjunction with the A & R form. These supporting affidavits were then appraised by the courts, either with or without reference to the A & R form, and were judged either sufficient or insufficient for probable cause, according to the circumstances of the case and the requirements of the Constitution. See State v. Hawkins, Me., 261 A.2d 255, 260-63 (1970); Benoski, supra, 281 A.2d at 129-30, 132-33; State v. Appleton, Me., 297 A.2d 363, 366, 368-69 (1972).

Only on two occasions has this Court addressed the issues involved in the physical and temporal association between the A & R form and any supporting affidavits. In Benoski, supra, we stated in dictum that the two affidavits, one an A & R form and the other a separate supporting affidavit, would be treated as simultaneous and read together as one affidavit. 281 A.2d at 129. The Benoski court was troubled by the presence of a jurat on the A & R form while the supporting affidavit bore no jurat. But the Benoski court, with the advantage of having the affiant's testimony as part of the record on appeal, was satisfied that the affiant took oath to both affidavits simultaneously and that the magistrate intended the single jurat to apply to both affidavits. Therefore Benoski treated the two-part affidavit as a single supporting document. Id. However, in Stone, supra, there were no inferences obtainable by reason of the affiant's testimony. This Court, reading the documents on their face, concluded that the A & R form and the supporting affidavit were separate affidavits. 322 A.2d at 315-16. Since both affidavits in Stone were necessary to establish probable cause, ultimately both were required to be specifically incorporated to the search warrant issued. Neither the Benoski nor Stone opinions discussed, as such, whether the supporting affidavit was physically attached to, and incorporated by reference in, the A & R form. ³

The A & R form in the instant case states: 'This request is also based upon the information in the sworn statement attached.' This statement, with its recital of attachment, marks a substantial distinction between the instant A & R form and those in Benoski and Stone. ⁴ In addition to the language of attachment, the face of the A & R form also contains words of incorporation that clearly refer to an additional document,...