State v. Stone

• Decision Date: 05 July 1974
• Citation: 322 A.2d 314
• Parties: STATE of Maine v. George and Irene STONE.
• Court: Maine Supreme Court

Page 314

322 A.2d 314

STATE of Maine v. George and Irene STONE.

Supreme Judicial Court of Maine.

July 5, 1974.

Peter M. Garcia, Asst. County, Atty., Auburn, for State.

Berman, Berman & Simmons by Robert A. Laskoff, Lewiston, for defendant.

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

POMEROY, Justice.

On September 12, 1972, defendants were charged in a four-count indictment with illegal possession of cocaine, phencyclidine (PCP), dylysergic acid diethylamide (LSD-25), and cannabis, in violation of Shortly following indictment, defendants moved under Rule 41(e) Maine Rules of Criminal Procedure, to suppress certain evidence ¹ seized pursuant to a search warrant executed on September 3, 1972.

Title 22 M.R.S.A. 2362, 2212-B and 2382, subd. 1.

After hearing, the motion was denied.

Appeal was seasonably taken.

The issue is now before us on report, pursuant to Rule 37A, M.R.Crim.P.

We note that the agreed statement of facts recites that

'. . . if the appeal of the defendants is sustained, then the State will dismiss the pending indictment against these defendants, as there would be insufficient evidence to convict the defendants if the evidence Defendants seek to suppress is not admissible at trial.'

In their motion to suppress defendants alleged numerous deficiencies in the search warrant, the underlying affidavits, and the manner of execution of the warrant.

Because for reasons which will appear, we find the affidavit and resulting warrant insufficient as a matter of law, we sustain defendants' appeal.

As will also appear, it is unnecessary that we consider and dispose of each particular challenge to the warrant mounted by defendants.

The warrant was issued at 12:05 a. m. on September 3, 1972, by a complaint Justice upon application of a Lewiston police detective. The warrant was based, allegedly, upon two supporting affidavits, one entitled 'Affidavit and Request for Search Warrant,' and the other untitled. ²

In brief, the title affidavit states in rather conclusory terms that Roy Perham, Jr., 'a duly sworn police officer of the City of Lewiston,' had probable cause to believe that 'hypodermic syringes, cocaine and marijuana' were concealed on certain premises occupied by defendants, and that because of the officer's positive belief that the 'property' was on the premises and the necessity of preventing removal, a nighttime search warrant was required.

The supplemental affidavit, also sworn on September 3, 1972, contains much greater detail. In summary, it alleges the following: That the affiant was a detective with the Narcotics Division of the Lewiston Police Department; that on five previous occasions an informer, acting on the detective's instructions, had purchased drugs from other individuals, and that the informer's descriptions of the nature of the substances thus obtained had been verified by laboratory analysis in each instance; that the affiant therefore considered the informer to be reliable; that on September 2, 1972 (the day preceding issuance of the warrant), the said informer had 'obtained' from defendant Irene Stone a substance which, after delivery to the detective, was established by field analysis to be cocaine; and that at the time of obtaining this substance, the informer 'saw certain syringes' in defendants' apartment.

The warrant states in part:

'Affidavit having been made before me by Detective Roy Perham, Jr., that he has reason to believe that on the premises known as the apartment occupied by Irene Stone and George William Stone and the adjoining shed on the fourth story of the building . . . there is now being concealed certain property, to wit; hypodermic syringes, cocaine and marijuana.

'As I am satisfied that there is probable cause to believe that the property so described and used is being concealed on the premises above described, upon the following grounds: an affidavit of Detective Roy Perham, Jr. of the Lewiston Police Department.'

We are thus presented with three separate documents.

We must examine the alleged affidavits to see if either or both alleged facts sufficient to justify the issuance of the warrant. If either or both allege sufficient factual basis for a warrant, we must ascertain whether or not it clearly appears whatever affidavit or affidavits are now in the case were before the magistrate at the time he issued the warrant.

The underlying principles which must guide us, of course, are drawn from the Maine and United States Constitutions insofar as they address the reasonableness of searches and seizures conducted under government authority.

In our recent decision in State v. Appleton, Me., 297 A.2d 363 (1972), we had occasion to restate those specific guidelines to be applied in considering the sufficiency of an underlying affidavit to support a search warrant.

Those same guidelines must be applied here, though we are confronted with a complicating factual circumstance, in that two documents purporting to be affidavits may or may not have formed the basis for the magistrate's determination that probable cause existed to justify issuance of the search warrant.

In their brief and at oral argument defendants have maintained, inter alia, that only the 'titled' affidavit (Appendix B) may be considered by this Court in reviewing the magistrate's finding of probable cause. Standing alone, they say such affidavit does not and cannot satisfy the minimum requirements for probable cause contemplated by our decisional law, State v. Appleton, supra, State v. Benoski, Me., 281 A.2d 128 (1971), State v. Cadigan, Me., 249 A.2d 750 (1969), State v. Hawkins, Me., 261 A.2d 255 (1970).

In so arguing, defendants rely chiefly upon our holding in State v. Hollander, Me., 289 A.2d 419 (1972).

As in the instant case, Hollander involved a 'supplemental' affidavit reciting facts not contained in another separate affidavit executed the same day.

By defendants' analysis, there has been no 'incorporation by reference' here of the supplemental affidavit as permitted in Hollander. The magistrate in Hollander, in referring in the warrant to the two affidavits, stated: '. . . both of which are attached to the original thereof.'

The defendants argue the supplemental affidavit may not be considered.

They say the title affidavit is purely conclusory and the warrant is therefore defective and invalid.

On the narrow question of the sufficiency of the titled affidavit standing alone, we agree with defendants.

As we said in State v. Appleton, supra,

'. . . 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 that the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the criminal law, . . . was being violated on the premises to be searched, and if the apparrent facts set out in the affidavit were such that a reasonably discreet and prudent person would be led to believe that there was a commission of the crime . . . then there was probable cause justifying the issuance of the search warrant.' 297 A.2d 363, 368.

The titled 'Affidavit and Request for Search Warrant,' when read separately from the supplemental affidavit, is utterly devoid of facts or circumstances which would supply probable cause for issuance of the warrant. ³

It remains to be examined, then, whether or not the untitled supplental affidavit was 'incorporated' into the warrant, along with the titled affidavit, such that we may look to it on review in measuring 'from foresight, not hindsight,' State v. Hawkins, supra, 261 A.2d 255, 261, whether or not the magistrate correctly found probable cause.

Prior to addressing this point in terms of the facts presented here, we must state our rejection of the notion that it is either possible or useful for this Court to attempt to develop a fixed criterion to be applied as a 'litmus paper' in determining whether on any given set of facts an affidavit, or otherwise denominated supporting document, has been sufficiently 'incorporated' into a warrant.

We did not intend in Hollander, to suggest any particular means of physical attachment necessary to show incorporation or any particular words in the warrant to demonstrate that the alleged supporting document had been incorporated.

Rather, we pointed out and now reemphasize, that the requirement that the grounds of probable cause be stated on the warrant (and hence, that any substitute for this statement, e. g., an affidavit, be properly incorporated) is intended 'to provide a reviewing court with a complete record,' ⁴ of all the material on which the magistrate relied for his finding of probable cause.

In Hollander, we found it sufficient, on the facts there presented, that there had been '(C)lear reference to an attached affidavit . . ..' Ibid., p. 421.

We now hold that what amounts to satisfactory incorporation must be determined on a case-by-case basis, under the general guiding objective of providing the reviewing court with a record comprising all of the documents legitimately evaluated by the magistrate or other judicial officer issuing the challenged warrant.

With respect to the instant case, we cannot say there was sufficient incorporation of the untitled 'supplemental' affidavit to assure us that it was actually presented to the magistrate at the time he made his determination of probable cause for issuance of the warrant, or that it constituted the factual foundation for this determination.

First, the warrant refers only to a single affidavit.

More significantly, there is no factual material in the warrant which conclusively points to the 'supplemental' affidavit as its source. For example, in referring to the property allegedly concealed in defendants' premises, the warrant contains the words 'hypodermic syringes,...