State of Maine v. Smith

Maine Superior

State of Maine v. Smith

Superior Court of Maine·Decided November 30, 2007·No. KENcr-06-613and984·Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC ss CRIMINAL ACTION DOCKET NOS. CR-06-613

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STATE OF MAINE v. ORDER ON MOTIONS TO SUPPRESS

MARK SMITH and THOMAS S~,nTH,

Defendants .}4/v r. C'lyr <'.:} ~

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Both defendants are charged with marijuana cultivation and unlawful trafficking

of scheduled drugs. The defendants seeks to suppress the following:

1. evidence obtained as a result of the search of Mark Smith's residence at 1634 Riverside Drive in Vassalboro;

2. evidence obtained as a result of the search of the residence on Dunham Road in Vassalboro;

3. evidence obtained as a result of the search of the property off the Bog Road in Vassalboro;

4. any statements made by the defendants during the course of the searches.

For the following reasons, the motions are denied in part and granted in part. FACTS On 6/2/06, KCSO Corporal Michael Dunham, along with twelve or thirteen other law enforcement officers, some in swat-team type uniforms and armed with gums and tazers, executed a search warrant at 1634 Riverside Drive in Vassalboro. Defendant Mark Smith was taken outside from the residence, secured, placed in hand cuffs, and seated in the front passenger seat of Corporal Dunham's cruiser.

Corporal Dunham asked Mark Smith if he wanted to speak to the officer. Mark Smith replied that he knew the officers were there to get his plants. Corporal Dunham then read the Miranda warnings to Mark Smith. Corporal Dunham read all of the warnings and the waiver verbatim from his card, which is identical to State's exhibit 4. After reading each paragraph, Corporal Dunham asked Mark Smith if he understood what had been read and received an affirmative response before proceeding to the next paragraph. Mark Smith answered affirmatively after the waiver language was read.

During the next several minutes, Corporal Dunham asked questions. Mark Smith admitted his involvement in the cultivation of marijuana plants and implicated his brother, Thomas Smith. Mark Smith also admitted that he stored marijuana at his parents' residence on the Dunham Road in Vassalboro. Corporal Dunham and Mark Smith then drove to the Dunham Road residence. Corporal Dunham did not discuss having found more than 100 plants during this initial interview. The officer had no way to know at that time the number of plants found because the search was not completed.

Detective Rick Stubbert next spoke to Mark Smith, who was in custody by that time. Detective Stubbert advised Mark Smith that he was in trouble and said that if he cooperated, it would help him in the end. Detective Stubbert made no threats but did say that if Mark Smith was honest and forthcoming, it would be in his best interests. Detective Stubbert asked where the processed marijuana was kept and where the plants were. Eventually, Mark Smith said that the marijuana was kept at his parents' residence and that his brother would be there.

Detective Stubbert drove to the Dunham Road residence. The officers knocked on the door and Thomas Smith exited the residence. Sergeant Cowan and Detective Stubbert told Thomas Smith that Mark Smith had been arrested for crimes and that they

knew Thomas Smith was involved. Sergeant Cowan's body language led Thomas Smith to understand that he was not free to leave.

Detective Stubbert advised Thomas Smith that a search warrant had just been executed at Mark Smith's house. Detective Stubbert stated that he could get a search warrant to search the Dunham Road residence or Thomas Smith could consent to the officers entering the residence. Although Thomas Smith denied he was told that he did not have to let the officers enter and they could get a warrant, Mark Smith agreed that that information was given to Thomas Smith. Detective Stubbert did not recall whether he asked if Thomas Smith lived at the residence and did not recall whether Thomas Smith said he lived there. Thomas Smith stated that this was his parents' house and he did not want them to be involved because they had no connection to what was going on.

On 6/2/06, Thomas Smith was the caregiver for his mother. He went to the Dunham Road residence on a regular basis and it was not unusual for him to spend considerable periods of time at the residence. He agreed at the motion hearing that he had access to the residence and access to the attic where the marijuana was found, which was a common storage area used by several family members.

Sergeant Cowan produced the consent to search form. (State's Ex. 1.) Detective Stubbert explained the contents of the form. Thomas Smith admitted at the motion hearing that he understood that the officers were asking for consent to enter the house, that he signed the consent form, and that he let the officers go in. He gave oral permission to look in the residence and signed the form in Detective Stubbert's presence.

When Corporal Dunham and Mark Smith arrived at the Dunham Road residence, Thomas Smith was outside with Sergeant Cowan and Detective Stubbert. At

least seven officers eventually arrived. Sergeant Cowan and Detective Stubbert stated that Thomas Smith resided at that address, had given consent to search the residence, and showed the signed consent form to Corporal Dunham. (State's Ex. 1.)

No Miranda warnings were read to Thomas Smith. Corporal Dunham was unsure if Thomas Smith would be charged and he was free to leave as far as Corporal Dunham was concerned. At the motion hearing, Thomas Smith denied that he was asked any questions by any officers except whether he would consent to the search of the residence and whether he could talk some sense into his brother. Thomas Smith did not reply to the latter question.

Corporal Dunham and Thomas Smith entered the residence. Corporal Dunham asked Thomas Smith if he would show the officer the location of the marijuana. Thomas Smith led the officer to a storage area and a bucket containing just over thirteen pounds of marijuana. Thomas Smith stated that he helped Mark Smith with the marijuana growing and Mark Smith gave marijuana to Thomas Smith for health reasons. Thomas Smith stated that the marijuana belonged to Mark Smith and himself. Corporal Dunham arrested Thomas Smith and another deputy transported Thomas Smith to jail.

At the Dunham Road residence, Detective Stubbert spoke to Mark Smith again.

Detective Stubbert said he had information about plants and asked Mark Smith again about the plants and whether he had an "outdoor grow." Mark Smith asked whether it would help and "make us look good" if he led the officers to the grow. Detective Stubbert and Corporal Dunham replied that it would be to Mark Smith's benefit to show the officers other plants and would help prove his cooperation with the investigation. At the motion hearing, Detective Stubbert agreed that he assumed that

these remarks to Mark Smith led Mark Smith to believe that cooperation would help in the end with the District Attorney.

Corporal Dunham did not say what would happen if Mark Smith did not show other plants and did not hear Detective Stubbert say anything to that effect. Neither Fairfield Police Department Detective Sergeant Kingston Paul nor Detective Stubbert heard any officer discussing having found more than 100 plants or discussing bringing in helicopters.

The defendants' recollection of statements made by the officers differs, of course, from the officers' recollection. In general, the testimony of the defendants was exaggerated, inconsistent, and not credible. Thomas Smith did, however, testify about threats and promises made by Sergeant Cowan, with whom Thomas Smith interacted more than with other officers. Sergeant Cowan told Mark Smith at the Dunham Road residence that his charges would be less if he cooperated and produced evidence. The State did not offer Sergeant Cowan's testimony at the motion hearing and other officers did not specifically refute this statement by Sergeant Cowan.

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