State of Maine v. Liebowitz

Maine Superior

State of Maine v. Liebowitz

DecidedApril 9, 2008

DocketKENcr-06-710

StatusUnpublished

This text of State of Maine v. Liebowitz (State of Maine v. Liebowitz) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State of Maine v. Liebowitz, (Me. Super. Ct. 2008).

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Opinion

STAT~~c. SUPERIOR COURT CIVIL ACTION Se:MfRSET, ss. DOCKET NO. CR-06-.710 I ' ,1 ,;

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STATE OF MAINE

v. DECISION AND ORDER

ROLAND LIEBOWITZ,

Defendant

Defendant has moved for a Franks hearing and seeks the suppression of evidence

obtained as a result of a search. Defendant also moves to suppress the evidence on the

grounds of staleness.

1. Motion for a Franks Hearing

A Franks hearing entitles a defendant to challenge the truthfulness of statements

made in an affidavit in support of a search warrant. State v. Dickinson, 2005 ME 100, 'IT 8,

881 A.2d 651, 655 (citing Franks v. Delware, 438 U.S. 154, 155-56 (1978)). Defendant is

entitled to a Franks hearing if:

he makes a substantial preliminary showing that: (1) the affidavit to obtain a warrant included intentional and knowing misstatements or misstatements made in reckless disregard for the truth, and (2) ... the misstatements were necessary for a finding of probable cause. Id. (quoting State v. Hamel, 634 A.2d 1272, 1273 (Me. 1993)) (internal quotations omitted).

The same analysis applies in instances such as this when the alleged falsity of the

affidavit arises from the omission of facts rather than the inclusion of false facts. Id.

This court begins with the presumption that the affidavit is valid. Id.

Therefore, to obtain a Franks hearing, a defendant's "attack must be more than condusory and must be supported by more than a desire to cross-examine. A defendant must make allegations of deliberate falsehood or reckless disregard 2

for the truth, and those allegations must be accompanied by an offer of proof. The allegations should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or in their absence satisfactorily explained. Moreover, if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Id. (internal quotation marks and citations omitted).

The affidavit here in question was prepared by Deputy John P. Borque and

included the following information to conclude that there was probable cause in favor

of issuance of a search warrant: 1) information provided by "CC-7" who knew

defendant very well and had according to Det. Sgt. Paul and Lt. Gottardi provided

reliable and credible information in the past that defendant was selling marijuana from

his home; 2) information provided by Lt. Gottardi obtained from an unidentified

reliable source that defendant was involved in marijuana trafficking; 3) Deputy

Borque's own knowledge from a 3/28/05 search of the residence of Rodney Mcaleer, to

which defendant showed up during execution of the search warrant and had his truck

searched leading to defendant pleading guilty to drug trafficking based on marijuana

and cash seized from his truck; 4) information provided by a cooperative jailhouse

informant, "CD-L1," who had provided reliable information relating to a successful

search warrant in the past against drug traffickers, that defendant sold marijuana and

supplied it to others who sell marijuana; 5) information provided by a person confined

on probation violation, "CI06-5," who had provided law enforcement with credible

information leading to search warrants and arrests for illegal drug violations, that he

had been an associate with defendant's relative and that defendant was a large scale

marijuana dealer and that he had observed 50 pounds of marijuana in a house several

years earlier that he was informed by his associate belonged to defendant. 3

Defendant contests the truthfulness of Deputy Borque's inclusion of information

provided by CC-7. The State agrees that the affidavit contains several falsities as to CC

7. Thus this court in determining whether probable cause still exists, must assume to be

part of the affidavit all information intentionally or recklessly omitted and redact from

the affidavit all false information intentionally or recklessly included. See State v. Van

Sickle, 580 A.2d 691, 692 (Me. 1990). First, the affidavit refers to CC-7 as a "CC"

(concerned citizen) when in actuality he is a confidential informant, an individual

involved in the criminal justice system. This difference is one that obviously goes to the

veracity and reliability of information provided by CC-7, a consideration that this court

must take up in evaluating whether probable cause should be found based on the

totality of circumstances. Second, related to the characterization of CC-7 as a concerned

citizen rather than a confidential informant is Deputy Borque's statement that CC-7

provided the information because he "wished to help law enforcement." Such an

inference cannot be made in the context of a confidential informant and is assumed

redacted in this court's review of the affidavit. Third, Deputy Borque omitted

information that CC-7 is the defendant's son. Assuming this was omitted intentionally

or recklessly it has some bearing on the reliability of information provided by CC-7

(Justin Liebowitz). Fourth, the context of Justin Liebowitz's prior drug convictions, that

he was providing information against his father to gain favor with the D.A.'s office, and

that he was on probation for drug charges out of Texas was not included in the

affidavit. This information goes to the reliability of Justin Liebowitz's statements and

should be assumed included in the affidavit.

With the adjustments to the affidavit detailed above, this court now must "give

the affidavit a positive reading" reviewing it with all "reasonable inferences that may be

drawn to support the magistrate's determination." State v. Higgins, 2002 ME 77,

796 A.2d 50, 56. This court does so to detennine whether based on the totality of the

circumstances probable cause exists for the search warrant. In other words, whether the

affidavit after the inclusion of erroneously omitted information and redacting false

information establishes probable cause "given all the circumstances set forth in the

affidavit before [the magistrate], 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. Wright, 2006 Will 13,

890 A.2d 703, 705.

Defendant assumes that the result of the information the court now has is that

the first three paragraphs of the affidavit are fully redacted. This court does not agree.

Assuming all of the information above was intentionally or recklessly omitted or

included in the affidavit, this court looks at the statements of Justin Liebowitz as those

of a self-interested confidential informant, on probation, with a checkered past as a

criminal involved with drugs. They are also looked upon as the statements of a son

against his father.

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