State v. White

Supreme Judicial Court of Maine

State v. White

391 A.2d 291, 1978 Me. LEXIS 830

Supreme Judicial Court of Maine·Decided August 2, 1978·Published·Cited by 11 cases

Opinion

NICHOLS, Justice.

The Defendant, Philip J. White, and another, stand indicted by a grand jury in Cumberland County for the crimes of trafficking in hypodermic apparatuses (17-A M.R.S.A. § 1110) and furnishing a Schedule Z drug (17-A M.R.S.A. § 1106). The Defendant White brings this case here on report pursuant to M.R.Cr.P. 37A(b) from the ruling of the Superior Court, which denied his request for an evidentiary hearing on his motion to suppress evidence seized under a search warrant. The purpose of that evidentiary hearing would have been to go .behind the four corners of what the Defendant concedes is a facially sufficient affidavit in support of the warrant. The recent decision of the United States Supreme Court in Franks v. Delaware, - U.S. -, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) narrows the issue before us to whether the Defendant has made the “substantial preliminary showing” of material falsity necessary to obtain such a hearing. 1

We hold that he has not, and we therefore deny his appeal.

On April 26, 1977, on the basis of the affidavit of South Portland Police Sergeant David Martino, set out in Appendix A, a judge of the Maine District Court issued a search warrant for the premises at 241 Elm Street in South Portland, authorizing the executing officers to conduct a daytime search of that specifically described property for “large amounts” of growing marihuana, “large amounts” of marihuana in glassine bags as well as hypodermic needles and a laboratory located in the cellar, allegedly used to make illegal drugs.

The warrant was executed the same day. Among the items seized, as reflected in the inventory, were thirty-two growing marihuana plants, twenty-two “rolled” ounces of marihuana, ninety-eight hypodermic needles, tubing and glass beakers.

After the Defendant was indicted and arraigned, he brought a motion to suppress the evidence seized under the warrant. At the initial hearing, counsel for the Defendant conceded that the warrant was facially valid and that Officer Martino’s affidavit, if true, was sufficient to justify issuance of the warrant. The Defendant contended, however, that the affidavit was false and requested an evidentiary hearing to prove its falsity.

In an order dated August 25, 1977, the presiding justice, recognizing the absence of case law in Maine and the split of authority elsewhere, deemed the standard of United States v. Belculfine, 508 F.2d 58 (1st Cir. 1974), to be controlling. Accordingly, the Defendant was given leave to file an affidavit in support of his motion so that the court could determine whether he had made the necessary preliminary showing to justify an evidentiary hearing.

*293 Subsequently, the Defendant filed his own affidavit challenging the officer’s affidavit, set out in pertinent part in Appendix B. The presiding justice denied the motion to suppress without holding an evidentiary hearing, ruling that the Defendant’s affidavit did not sufficiently call into question the statements of the affiant officer, but rather was directed to statements made by the unnamed informant. Counsel for the Defendant then sought reconsideration of the denial on the grounds that he had been supplied police reports concerning two of the cases recited in the officer’s affidavit where the informant had previously proven reliable. The Defendant’s motion alleged that the information in those reports “do not support or are not consistent with” the statements Officer Martino made regarding the informant’s reliability. Those police reports are not in the record before us nor, so far as we can tell, were they presented or offered to the presiding justice. The motion for reconsideration was denied, the court noting that it was unsupported by an affidavit, and even if the allegations were assumed to be true, they did not allege facts from which the court could find that the affiant officer intentionally made relevant and non-trivial false statements.

The Defendant then successfully sought leave to bring this interlocutory appeal.

In Franks v. Delaware, -U.S. -, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court squarely faced, for the first time, the “important and longstanding” Fourth Amendment issue of when, if ever, a criminal defendant has the right to challenge the truthfulness of factual statements made in an affidavit supporting a search warrant.

In Franks, the Court reversed the petitioner’s rape conviction on the grounds that the Supreme Court of Delaware had erred in adopting an absolute rule against ever permitting a defendant to challenge the truthfulness of an affidavit in support of a search warrant. The Court held that “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the Defendant’s request.” - U.S. -, 98 S.Ct. at 2676. The Court also held that if the defendant establishes at such a hearing by a preponderance of the evidence the material falsity 2 of the affiant’s statements, and also establishes that the affi-ant’s statements were intentionally or knowingly false or were made with reckless disregard for the truth, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. Id.

Thus, in order to even gain an evidentiary hearing, a defendant must make a “substantial preliminary showing” to overcome the presumption of validity with respect to the warrant affidavit.

. (T)he challenger’s attack must be more than eonclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and these allegations must be accompanied by an offer of proof. They should point out specifically the portions 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 their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affi-ant, not of any nongovernmental informant. Finally, if these requirements are *294 met, and 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, [footnote omitted].

- U.S. at -, 98 S.Ct. at 2685. The forming of suitable rules to govern proffers was left to the states. 3 Id.

It now falls to us to apply these principles to the case at bar.

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