STATE OF MAINE SUPERIOR COURT

SOMERSET, ss. DOCKET NO. CR-******

STATE OF MAINE, )
)
v. ) DEFENDANT’S MEMO
) ON MOTION TO
************* ) SUPPRESS AND DISMISS
)
Defendant )

NOW COMES Defendant, ***********, by and through

Undersigned Counsel, and issues this Memorandum on his Motion to

Suppress and Dismiss.

MEMORANDUM OF LAW

I. THE UNCORROBORATED HEARSAY IN THE WARRANT

AFFIDAVIT DOES NOT MEET PROBABLE CAUSE OR THE
STANDARD SET FORTH IN ILLINOIS V. GATES

The question for the Court is whether hearsay is a sufficient basis

for the search Search Warrant at issue. When hearsay is the only

information provided in the Warrant Affidavit, hearsay is insufficient.

State v. Sweatt, 427 A.2d 940 (Me. 1981).

In Sweatt, the Court held that where an officer’s affidavit relied

solely on the hearsay of a confidential informant, “the affidavit was

required to show affirmatively that the hearsay information concerning the

alleged [criminal act] was reliable.” Id. at 948.

Where an affidavit contains additional evidence corroborating a

confidential informant’s information, however, the Court has upheld the

magistrate’s probable cause determination. State v. Knowlton, 489 A.2d

529 (Me. 1985). In determining whether probable cause exists, the

magistrate applies the “totality of the circumstances” test adopted in

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983), which requires a “practical, common-sense decision whether,

given all the circumstances set forth in the affidavit before him, including

the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay

information, there is a fair probability that contraband or evidence of a

crime will be found in a particular place.” State v. Higgins, 2002 ME 77, ¶

20, 796 A.2d at 56 (quotation marks omitted).

In Sweatt, an officer applied for a search warrant to search various

properties owned or used by a gem cutter to find tourmaline that was

allegedly stolen. Sweatt, 427 A.2d 940, 948 (Me. 1981). The affidavit

included statements made to the swearing officer by a confidential

informant. Id. The affidavit contained no statements about the informant’s

credibility or reliability, and the affidavit did not at all rely on the affiant’s

personal knowledge or observations of the stolen gems. Id. The Court

upheld the Superior Court’s granting of a motion to suppress. Id.

In Knowlton, a confidential informant, previously unknown to

local police, gave an officer information about cocaine-dealing activity in

a defendant’s house, including where in the house the defendant normally

kept the cocaine. Knowlton, 489 A.2d 529 (Me.1985). Subsequently, the

officer observed a controlled purchase of drugs from the defendant to the

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informant. Id. at 530. The officer also confirmed the informant’s reliability

with police in New Jersey, where the informant claimed he had previously

served as an informant. Id. at 531. The officer provided the informant’s

hearsay and his own observations in an affidavit for a search warrant,

which the magistrate granted. Id. The police executed the warrant, which

turned up illegal drugs, and the defendant was arrested for trafficking. Id.

at 529. The Superior Court granted the defendant’s motion to suppress

because there were no statements in the affidavit regarding the credibility

of the informant or the reliability of his hearsay. Id. Where the information

provided by the informant was partly corroborated by the officer’s

observation of the buy, the Court held the magistrate correctly applied the

“totality of the circumstances test,” and vacated the Superior Court’s

decision granting the defendant’s suppression motion. Id. at 533.

Gates afforded magistrates greater flexibility and deference in determining

the existence of probable cause based on hearsay: "Informants' tips

doubtless come in many shapes and sizes from many different types of

persons. . . . Rigid legal rules are ill-suited to an area of such diversity."

Gates, 462 U.S. at 232. However, Gates was also unequivocal that

uncorroborated hearsay from a source whose credibility is itself unknown,

standing alone, cannot support a finding of probable cause to issue a

search warrant. Id. at 227. This is precisely what the Court faces in the

case at bar.

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 Gates allows for a determination of whether the uncorroborated

hearsay is trustworthy enough to survive review. Gates holds that the

trustworthiness of hearsay for purposes of proving probable cause can be

established in a number of ways, including where (1) the informant has

given correct information in the past, (2) independent police investigation

corroborates the informant's statements, (3) some basis for the informant's

knowledge is shown or (4) the informant predicts conduct or activities by

the suspect that are not ordinarily easily predicted. Id.

Recently and importantly, the Law Court has clarified its position

related to the Gates test in the case of State v. Rabon, 943 A 2d. 268 (Me.

2007). In Rabon, there was a confidential informant who provided

information that the Defendants were transporting cocaine from Florida to

Maine for sale. Id. at 271. The informant identified times when the

Rabon’s van would be missing from their home in Rumford because they

would be on a drug run to Florida. Id. at 272. The informant also

provided corroborated information as to the Rabons’ names, telephone

number, address, car, color of their home, the fact Charles Rabon had

received a Summons for Excessive Noise, and that trafficking of the drugs

would take place in two local bars. Id. at 280-281.

The Law Court in Rabon noted that Gates required “something

more” to establish police corroboration of a confidential informant’s tip.

Id.at 277. In making a determination as to whether the confidential

informant tip was sufficient, the Law Court analyzed three areas: (1) the

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reliability and basis of knowledge of the informant, (2) the informant’s

claims regarding the Defendant’s criminal activity and (3) the reports of

other information concerning the Defendants. These standards were

balanced by the totality of the circumstances test. Id. at 277.

In evaluating the informant’s reliability and basis of knowledge,

the Law Court in Rabon emphasized the informant was not a

“disinterested citizen informant, but instead a confidential informant.” Id.

at 278. The Law Court noted that courts should be concerned with the

veracity of confidential informants as opposed to individual citizen

informants. Id.

Additionally, the Court noted that the affidavit in Rabon “does not

assert the informant had actually seen first hand any contraband or illegal

activity.” Id. at 278. The Law Court further noted that “the Affidavit does

not contain any statements to the effect that the informant has been found

or is otherwise believed by the MDEA agent or other law enforcement

agency officials to be a reliable reporter of information.” Id. at 278.

The second step is to determine if there is corroboration of the

informant’s claims. The Law Court indicated that the “something more”

required by Gates is usually supplied by police corroboration of the

informant’s tips. Id. at 279. In fact, the Law Court noted that “in every

search warrant affidavit we have addressed since Gates, the affidavit

included information depicting contextually suspicious or overtly criminal

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activity by a suspect who was observed by someone in addition to or other

than an anonymous or confidential informant.” Id. at 279.

In the Rabon case, the Law Court indicated that there may have

been partial corroboration of facts related to the Rabons, but they were not

contextually suspicious. Id. at 281. The Law Court concludes that the

investigators in Rabon were “in the middle of a promising investigation”

that was cut short by a premature warrant. Id. at 281. Under the totality

of the circumstances test, partial corroboration of facts is “not a strong

showing as to …. some other indica of reliability as contemplated by

Gates that would justify a Magistrate in crediting the otherwise

unsupported claims of criminal activity by the Rabons made by an

informant for whom the warrant affidavit provides no information

concerning the informant’s reliability or basis of knowledge.” Id. at 281.

Here, when Officer Carl Gottardi II’s affidavit is stripped of its

boilerplate language, it contains facts that do not rise to the level of

probable cause under the cases cited above. The facts amount to the

following: (1) a confidential informant told Officer Gottardi that the

Defendant was drying marijuana in his barn and attic, (2) the confidential

informant had not had any contact with the Defendant personally in 2009,

(3) the confidential informant’s information came from an anonymous

informant who is unknown and is not named in the affidavit, (4) the

reliability of the anonymous informant is not provided in the affidavit, (5)

The basis of knowledge of the anonymous informant is not included in any

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way in the affidavit, (6) the confidential informant has provided reliable

information in the past that he has received from other unknown

individuals, but not the anonymous individual who gave information on

the Defendant here, (7) Officer Gottardi II drove by the Defendant’s house

once a day from September 30, 2009 through October 5, 2009 to see if any

elicit or illegal activity could be detected and none was detected, (8)

Detective Sergeant Thomas Rourke of the Somerset County Sheriff’s

Department walked past the **********’s residence to see if he could

smell the odor of marijuana, and he could not, (9) on May 22, 1997,

Officer Gottardi received a tip that the Defendant was growing marijuana

off of a road. Officer Gottardi investigated the tip, flew above the

suspected area via helicopter, and did not spot any marijuana plants. No

charges were filed.

The information provided in the Warrant Affidavit in this case do

not even make a close case for probable cause. At best, we have an

anonymous informant, who is not known to be reliable, the basis of whose

information is unknown, providing information to a confidential

informant. The confidential informant is not a citizen informant, but is

rather a confidential informant who is trying to get consideration for his or

her criminal charges. The confidential informant had not had contact with

the Defendant in the year 2009. As a result, all the information that we

have is from the unknown and unreliable informant.

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 Further, this Warrant Affidavit severely lacks the “something

more” required by Gates and Rabon. There is no independent police

corroboration of any activity whatsoever. The information from 1997 that

resulted in no charges is too stale to have been considered, and

corroborates nothing. There is no indication that drying equipment or

lighting was used to dry the alleged marijuana. There is no indication

related to corroboration of the growing of the marijuana (fertilizer bags,

seeds, etc…) There is no corroboration of any suspicious activity in the

area. The police attempted to detect the plain smell of marijuana, and

were unsuccessful. This is not terribly surprising in light of the fact that

the search revealed only a single marijuana plant and no harvested or

drying marijuana.

In essence law enforcement had what the court described in Rabon

as a promising case that was premature. The Warrant Affidavit as it was

filed, however, did not even present a close case for probable cause.

The appropriate remedy for the execution of a search warrant

based on an affidavit that lacks probable cause is exclusion of the search

and the fruits of that poisonous tree. Counsel requests the Court exclude

that search and anything discovered in that search and dismiss this matter.

Dated this 7th day of April, 2010 in Portland, Maine.

Truly yours,

Timothy E. Zerillo, Esq.

ZERILLO LAW, LLC

8
 103 Exchange Street
P.O. Box 17221
Portland, Maine 04112-8721