State of Maine v. Durgin

• Court: Superior Court of Maine
• Decided: May 13, 2008
• Docket: PENcr-06-556
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT PENOBSCOT, 55. LOCATION: BANGOR v\DOCKET 1\- : - \ ) . NO CR-06-556 \ ­ -.

STATE OF MAINE FILED & ENTERED SUPFR'(H~ r,()(J RT v. ORDER MAY 13 2008 WALTER DURGIN PENOBSCOT COUNTY

Hearing was held on the defendant's motion to suppress on May 12, 2008. The

State was represented by counsel, Alice Clifford, Esq., while the defendant was

represented by counsel, Donald Brown, Esq. In this motion the defendant seeks

suppression of the fruits of a warrantless search as well as a later search pursuant to a

warrant, and also asks the court to exclude statements made by the defendant after his

arrest. Because the parties agree that defendant did not properly request a hearing

pursuant to Franks v. Delaware, the court will not consider the testimony of the

witnesses that the state called at hearing with regard to the search pursuant to the

warrant because that examination must be made based of the four corners of the

warrant and affidavit only. Franks v. Delaware, 438 U.s. 154, 98 S.Ct. 2674, 57 L.Ed. 2d.

667 (1978).

The court makes the following findings with regard to the initial search, based on

the testimony of the witnesses called at hearing:

1. Working with Newport police officer Wintle, a confidential informant agreed

to purchase illegal drugs from her former boyfriend, Walter Durgin. Her interest in

working with the officer was motivated by a desire to avoid an operating after

suspension conviction. Before the Durgin buy, she had attempted to purchase marijuana from two individuals, in her capacity as an informant, but had failed to

successfully make a purchase.

2. The confidential informant arranged for Mr. Durgin to come to her apartment

to sell heroin to her at a price between $250 and $300. She described the vehicle he

would be driving to the officer and indicated that the purchase would take place

around midnight and that Durgin would be driving to her apartment. She said she

would come out of her apartment and go to the driver's side of the truck and give him

the money and then he would pass the heroin to her. She indicated that Mr. Durgin had

informed her that after he had picked up the drugs in Massachusetts, the return trip

was long because of rainy driving conditions and a bridge closure. Officer Wintle used

the internet to learn that a crane had collided with a bridge on Rt. 128 in Massachusetts,

causing long delays on the previous day, which had been rainy.

3. Prior to midnight no officer searched the informant nor gave her buy money

because it apparently had been planned that she would use her own funds. The

transaction was not recorded by body wire or other similar device. Prior to midnight,

Officer Wintle and several other officers set up in positions near the informant's

apartment so that the transaction could be observed. From a distance of thirty to fifty

yards officers observed a vehicle matching the informant's description of Durgin's

vehicle arrive at the apartment and they observed a woman who appeared to be the

informant come out of the house and approach the driver's side of the truck. Some of

the officers had seen the informant before. They observed her reach into the vehicle to

pass something to the driver and then saw the driver pass something to the informant.

Although they were not able to observe what was exchanged, the size of the items was

consistent with money and a small amount of drugs. They then charged the vehicle and

apprehended Mr. Durgin, his female passenger, and the informant. A warrantless search is lawful when the searching officers have probable cause

to search for evidence or contraband and exigent circumstances exist which demand

immediate search and seizure. State v. Dunlap, 395 A.2d 821 (Me. 1978). With regard to

automobile searches supported by probable cause, such searches are lawful whether or

not exigent circumstances prevailed at either the time of seizure or the time of the

search. State v.Tarantino, 587 A.2d 1095 (Me. 1991). According to Tarantino, probable

cause exists when then officers' personal knowledge of facts and circumstances, in

conjunction with any reasonably trustworthy information conveyed to them, would

cause a prudent person to believe that the vehicle contained contraband or evidence. In

evaluating the existence of probable cause, including cases involving the assertions of

confidential informants, the court must take into consideration the totality of the

circumstances. State v. Knowlton, 489 A.2d 529 (Me. 1985).

In applying these principles to this case, the court finds that the initial seizure of

the defendant and his companion and the immediate search of these two individuals

and the vehicle were lawful. Even though the confidential informant's reliability was

impeached to a degree by her previous failure to successfully purchase marijuana as an

informer and one could conclude that her selfish motive in cooperating with the police

impacted her credibility, this court concludes that the circumstances surrounding the

search compel a finding of probable cause because the information she had given was

corToborated prior to the search. Her statement concerning Durgin's difficulty in

picking up the drugs in Massachusetts was corroborated. The officers also watched the

purchase unfold exactly as she said it would. The Defendant in fact appeared at the

informant's apartment in a vehicle matching the description that she had provided, she

approached the driver's side and passed something into the vehicle and the driver in

fact gave her something small in return. At that moment, either the officers were observing a drug buy or a fairly sophisticated set-up of a person not selling drugs.

Although either scenario is possible, a prudent person could reasonably conclude that

the former was occurring. The resulting search was then supported by probable cause.

Having decided that the warrantless search was lawful, the court finds that the

subsequent search pursuant to a warrant was also lawful, supported by the same

information as discussed above which was included in the affidavit, buttressed by a

description of the fruits of the first search, including contraband.

Finally the court addresses the admissibility of the defendant's statements. After

arresting the defendant, Officer Wintle read Miranda warnings to the defendant who

waived his rights and indicated that he would speak with the officer. Because the

defendant denied that a drug purchase had just taken place, and denied that he

possessed any illegal drugs, the officer stopped asking any questions and turned the

defendant over to Officer Costain. While in that officer's presence the defendant said

that some of the drugs were his and he was just trying to get through the weekend until

he could enroll in a methadone program. The officer did not ask questions to elicit these

statements, which the defendant made spontaneously. Based on these findings, the

court finds that the statements are not the product of custodial interrogation and finds

beyond a reasonable doubt that they were made voluntarily. See State v. Price, 406

A.2d 883 (Me. 1979), State v. Bowden, 342 A.2d 281 (Me. 1975).

Based on the above analysis, the court denies defendant's mo' n in all respects.

Dated: May 13, 2008 WILLIAM AND m::r-----­ JUSTICE, SUPERIOR COURT ATTORNEY FOR THE DEFENDANT

DONALD BROWN ESQ POBOX 3370 BREWER ME 04412

ATTORNEY FOR THE STATE ALICE CLIFFORD ASSISTANT DISTRICT ATTORNEY 97 HAMMOND ST BANGOR ME 04401