State of Maine v. Peaslee
This text of State of Maine v. Peaslee (State of Maine v. Peaslee) 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.
Opinion
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STATE OF MAINE SUPERIOR COURT
CRIMINAL ACTION KENNEBEC, ss. DOCKET NO. CR,;02-386 Dr A mE Af 3. IS / Ae! STATE OF MAINE v. ORDER ON MOTION TO SUPPRESS HANS C. PEASLEE, DL. GARBRECH! LAW LIBRARY Defendant MAR 12 2005
This matter is before the court on defendant’s motion to suppress evidence. Asa result of a search warrant from an affidavit, a package was seized at The Mailing Center in Augusta, Maine. The defendant asserts that paragraph 2(b) of the affidavit in support of the search warrant quotes a police officer stating that a civilian owner/employee accidentally opened a box addressed to the defendant and discovered a hay-type substance wrapped in “reddish-colored cellophane.” In paragraph 2(c) of the affidavit, the officer states that the civilian told him that he could “see through the - cellophane enough to see that it appeared to be a hay-type substance.” Defendant submits an affidavit of an individual who was sent to the Augusta Police Department to view the package in question. The individual asserts under oath that the “reddish- colored cellophane” is not opaque but is so dense that you cannot determine what it covers and therefore you cannot see through the cellophane sufficient to see the substance. It is the defendant's position that he is, therefore, entitled to a “Franks - hearing” to determine whether there is specific information in the search warrant affidavit which is false, whether the false information is material to the finding of probable cause, and whether the affiant included the false information knowingly or
with reckless disregard as to its falsity. State v. VanSickle, 580 A.2d 691 (Me. 1990). The State resists the defendant's request for a hearing, first asserting that the statement by the police officer in the affidavit was based upon information given him by a person not associated with law enforcement and that his statement contains items substantiating the officer’s conclusions that the information from the civilian is reliable and from a reliable source. The State also argues that the officer obtained the search warrant in good faith and the evidence was seized in a reasonable, good faith reliance on the search warrant. United States v. Leon, 468 U.S. 897 (1984).
There are seven basic elements to the affidavit supporting this search warrant. First, the officer, with considerable training and experience, is quoting a civilian known to the officer from prior criminal investigation wherein the civilian provided detailed, credible information with respect to criminal activity. The second element is that the defendant made numerous phone calls to The Mailing Center appearing anxious for the package to arrive thereby alerting personnel to its importance. The third element is the observation by the civilian that the package contained “a large bale of hay-type substance wrapped in’a reddish-colored cellophane.” The fourth element is that the civilian detected an odor of marijuana coming from the package. The next element is that the civilian asserts that he has had previous experience with marijuana and is familiar with its odor. The next element of the affidavit is that the return address on the package was from Berkeley, California. Finally, the officer asserts that from his training and experience he is aware that individuals will mail marijuana to friends using independent mail locations such as The Mailing Center.
At a Franks hearing, the defendant bears the burden to present a substantial showing that without the information challenged, there would have been no probable cause. State v. Hamel, 634 A.2d 1272 (Me. 1993). The affidavit submitted by defendant
challenges the appearance of the “hay-type substance” through the cellophane.
2 Therefore, even if the defendant were to successfully show that the informant could not see through the cellophane sufficiently to see what appeared to be hay-type substance, there would still remain the probable cause based upon the odor and the other elements as enumerated. Therefore, the court concludes that the requirements of Franks v. Delaware, 438 U.S. 154 and held in State v. VanSickle, 580 A.2d at 693 that an alleged misstatement is necessary for the finding of probable cause does not exist.
The entry will be:
Defendant’s motion to suppress is DENIED.
Dated: March 5, 2003 pti
Donald H. Marden Justice, Superior Court
SUPERIOR COURT KENNEBEC, 8S.- Docket No AUGSC-CR-2002-00386
STATE OF MAINE vs ’ HANS C PEASLEE 135 SPEARS CORNER ROAD WEST GARDINER ME 04345 DOCKET RECORD
DOB: 07/18/1971 Attorney: SUMNER LIPMAN State's Attorney: DAVID CROOK LIPMAN & KATZ PA 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051 RETAINED 10/18/2002 Filing Document: INDICTMENT Major Case Type: FELONY (CLASS A,B,C) Filing Date: 10/18/2002
Charge (s)
1 UNLAWFUL TRAFFICKING IN SCHEDULED DRUGS 08/29/2002 AUGUSTA 17-A 1103 Class C
2 CONSPIRACY TO COMMIT A CLASS C CRIME 08/29/2002 AUGUSTA 17-A 151(1) Class D
3 CRIMINAL FORFEITURE OF PROPERTY 08/29/2002 AUGUSTA 15 5826 Class U
Docket Events: 10/21/2002 FILING DOCUMENT - INDICTMENT FILED ON 10/18/2002 TRANSFER - BAIL AND PLEADING GRANTED ON 10/18/2002
TRANSFER - BAIL AND PLEADING REQUESTED ON 10/18/2002
10/21/2002 Charge(s): 1,2,3 HEARING - ARRAIGNMENT SCHEDULED FOR 10/31/2002 @ 8:30
NOTICE TO PARTIES/COUNSEL 11/01/2002 Charge(s): 1,2,3 HEARING - ARRAIGNMENT HELD ON 10/31/2002 @ 8:30 S KIRK STUDSTRUP , JUSTICE Attorney: WALTER MCKEE DA: ALAN KELLEY Reporter: PHILIP GALUCKI Defendant Present in Court
READING WAIVED. DEFENDANT INFORMED OF CHARGES. COPY OF INDICTMENT/ INFORMATION GIVEN TO DEFENDANT. 21 DAYS TO FILE MOTIONS, BAIL TO CONTINUE AS SET IN DISTRICT COURT.
11/01/2002 Charge(s): 1,2,3 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 10/31/2002
Page 1 of 3 Printed on: 03/05/2003 11/01/2002
11/01/2002
11/08/2002
11/13/2002
11/22/2002
12/23/2002
01/14/2003
01/31/2003
HANS C PEASLEEB AUGSC-CR- 2002-00386 DOCKET RECORD
Charge(s): 1,2,3 PLEA - NOT GUILTY ACCEPTED BY COURT ON 10/31/2002
BAIL BOND - CASH BAIL BOND COND RELEASE ISSUED ON 10/31/2002
ADDED CONDITION NO CONTACT WITH TODD HENDERSON BAIL BOND - CASH BAIL BOND CONTINUED AS SET ON 10/31/2002
MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 11/08/2002 MOTION - MOTION FOR FURTHER DISCOVERY FILED BY DEFENDANT ON 11/08/2002
MOTION FOR DISCOVERY FOR EXAMINATION OF PACKAGING, DEFENSE COUNSEL WISHES TO INSPECT
PACKAGING. TRANSFER - BAIL AND PLEADING RECVD BY COURT ON 11/13/2002
AUGUSTA DISTRICT COURT DOCKET NO: CR-02-2269 BAIL BOND - $200.00 CASH BAIL BOND FILED ON 11/13/2002
Bail Receipt Type: CR
Bail Amt: $200 Receipt Type: CK
Date Bailed: 08/29/2002 Prvdr Name: HANS PEASLEE Rtrn Name: HANS PEASLEE
Conditions of Bail:
Refrain from possession or use of intoxicating liquor. Refrain from possession or use of any
unlawful drugs.
Submit to random search and testing for alcohol, drugs upon reasonable suspicion of use or
possession. Have no contact with...
1 TODD HENDERSON MOTION - MOTION TO SUPPRESS EVIDENCE FILED BY DEFENDANT ON 11/22/2002
DA: WALTER MCKEE REQUESTING A FRANKS HEARING. SUPPRESS ALL EVIDENCE SEIZED AS A RESULT OF BOTH SEARCH
WARRANTS . HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 01/06/2003 @ 9:00
NOTICE TO PARTIES / COUNSEL HEARING - MOTION FOR DISCOVERY NOT HELD ON 01/06/2003
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