State v. Nunez

• Decision Date: 22 December 2016
• Docket Number: Docket: Pen–15–596
• Citation: 153 A.3d 84
• Parties: STATE of Maine v. Oscar NUNEZ
• Court: Maine Supreme Court

153 A.3d 84

STATE of Maine

v.Oscar NUNEZ

Docket: Pen–15–596

Supreme Judicial Court of Maine.

Argued: September 15, 2016

Decided: December 22, 2016

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

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

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 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 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.

[¶ 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 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 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 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.

[¶ 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 evidence pursuant to the second warrant.⁷ See United States v. Leon , 468 U.S. 897, 923–24, 104 S.Ct. 3405, 82 L.Ed.2d 677 (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...