State v. Willey

• Decision Date: 10 September 1976
• Citation: 363 A.2d 739
• Parties: STATE of Maine v. Malcolm C. WILLEY.
• Court: Maine Supreme Court

Page 739

363 A.2d 739

STATE of Maine v. Malcolm C. WILLEY.

Supreme Judicial Court of Maine.

Sept. 10, 1976.

Michael E. Povich, Dist. Atty., John A. Mitchell, Asst. Dist. Atty., Machias, for plaintiff.

Marshall A. Stern, Jerome B. Goldsmith, Bangor, for defendant.

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

WERNICK, Justice.

In a two count indictment returned on June 6, 1974 by a grand jury convened in Washington County defendant Malcolm C. Willey was charged with possession of marijuana with intent to sell (22 M.R.S.A. § 2384) and possession of hallucinogenic drugs (22 M.R.S.A. § 2212-B). On October 29, 1974 a Justice presiding in the Superior Court denied defendant's motion to suppress, for potential use as evidence against him, particular marijuana and phenycylidine which, in execution of a search warrant, the police had found and seized at defendant's place of residence.

When defendant subsequently waived jury trial, a Superior Court Justice heard the case and found defendant guilty of each offense as charged. At the trial the Justice had admitted as evidence against the defendant the contraband items seized pursuant to the search warrant.

Defendant has appealed from the judgments of conviction. He asserts as his sole ground of appeal that the contraband items seized in execution of the search warrant should have been suppressed, and excluded as evidence against him, because the warrant was issued in violation of defendant's rights as guaranteed by the Fourth-Fourteenth Amendments to the Constitution of the United States.

We sustain defendant's appeals.

On three occasions between January 26, 1974, and February 2, 1974, Ralph Bridges, an undercover Calais police officer, accompanied one Kenneth Bowers to the home of defendant in Harrington (Washington County). On each occasion, Officer Bridges remained in the car and gave $50 to Bowers who then entered defendant's home and purchased two ounces of marijuana, as requested by Bridges.

Officer Bridges then waited for thirty-one days after the time of the last purchase of marijuana at defendant's residence before he applied, on March 5, 1974, for the search warrant here under consideration.

The issue before us is whether, in view of this delay of thirty-one days, the affidavit of Bridges supporting his request for a search warrant made a legally sufficient showing of the 'probable cause' constitutionally requisite to justify issuance of the warrant.

The affidavit provides the following information bearing on probable cause:

'On January 26, 1974 at approximately 6:00 p.m. this affiant . . . (accompanied) by one Kenneth Allen Bowers hereinafter referred to as Boogie Bowers went by automobile to the above described premises owned and occupied by the said Malcolm (Mickey) Willey. Upon arrival this affiant gave Boogie Bowers $50.00 for the purchase of 2 ounces of marijuana. Boogie Bowers entered said premises and shortly returned from within with 2 ounces of marijuana, which marijuana has since been tested with positive results by the Department of Health and Welfare in Augusta. On January 28, 1974, this affiant repeated this process where Boogie Bowers entered said premises and returned with marijuana with similar test results. This process was repeated with like results yet again on February 2, 1974.

'On or about February 2, 1974 Boogie Bowers stated to this affiant that Mickey (Malcolm Willey) always has plenty of marijuana and was expecting a large shipment in a day or two. On other occasions Boogie Bowers has informed this affiant that Malcolm (Mickey) Willey always has grass on hand in said residence and never runs out.

'This affiant further states that he has every reason to believe Boogie Bowers and does in fact believe Boogie Bowers particularly in light of the three occasions stated above where Boogie Bowers said there was marijuana on the above described premises, entered said premises and in fact returned with marijuana from within.'

Initially, we note that we test the validity of a search warrant by whether the facts stated in the affidavit are sufficient to establish probable cause. State v. Appleton, Me., 297 A.2d 363, 367 (1972); State v. Cadigan, Me., 249 A.2d 750 (1969); conclusory statements without a recital of the underlying factual circumstances will not suffice. State v. Benoski, Me., 281 A.2d 128 (1971); State v. Cadigan, supra.

Further, as more directly concerned with the substantive aspects of probable cause, probable cause to justify the issuance of a search warrant must exist at the time the warrant issues. United States v. Boyd, 422 F.2d 791 (6th Cir. 1970); Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Thus, circumstances occurring substantially before the issuance of a search warrant can justify issuance of the warrant only if such past circumstances disclose a 'probable cause' of sufficiently continuing nature to authorize, as rational, an inference that the past probable cause is still operative at the time the search warrant is sought. Sgro v. United States, supra; United States v. Neal, 200 F.2d 305 (10th Cir. 1974). Although events which have occurred close to the time a search warrant is requested have stronger tendency than remote events to show probable cause justifying issuance of the search warrant, Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966), whether a past probable cause is still continuing at the time of the request for a sarch warrant is not determined merely by the passage of time; it may depend, also, on the particular kind of criminal activity involved, the length of the activity and the nature of the property to be seized. United States v. Steeves, 525 F.2d 33 (8th Cir. 1975); United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972); State v. Tella,113 R.I. 303, 321 A.2d 87, 90 (1974). ...