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State v. George Crowley
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MAINE SUPREME JUDICIAL COURT           Reporter of Decisions
Decision:1998 ME 187
Argued:	April 6, 1998
Decided:July 27, 1998




	[¶1]  The State appeals from an order of the Superior Court (Somerset
County, Alexander, J.) suppressing evidence obtained during a search of
defendant's home.  The court found that the magistrate issued the warrant
authorizing the search based on an affidavit that was unsupported by
probable cause.  The State argues on appeal that the court misapplied the
totality of the circumstances test, that a substantial basis existed in support
of the magistrate's finding of probable cause, and that the court erred in
suppressing the evidence.  We agree and vacate the judgment.
	[¶2] The relevant facts may be summarized as follows:  Defendant was
indicted in 1997 for possession of firearm by felon (15 M.R.S.A. § 393 (1980
& Supp. 1997) (Class C) (Count I)) and for aggravated trafficking in
scheduled drugs (17-A M.R.S.A. § 1105 (1983 & Supp. 1997) (Class C)
(Count II)).  The indictment was based on evidence seized during a search of
defendant's home.  The search was conducted pursuant to a search warrant
issued by a justice of the peace.  It was based on information in an affidavit
and request for a search warrant dated March 5, 1997, executed by
Lieutenant Carl Gottardi of the Somerset County Sheriff's Department.  In
the affidavit, Lieutenant Gottardi asserted that probable cause existed to
believe that the residence in question contained evidence of criminal
conduct, including controlled drugs and other contraband.  The facts set
forth in the officer's affidavit included the following:  (1) statements of a
person charged with trafficking in marijuana to the effect that, until the
latter part of 1996, he/she was involved in purchasing marijuana from
Crowley; that Crowley would always go upstairs in his home to get the
marijuana; and that his/her friend had been purchasing marijuana from
Crowley on a steady basis until March 3, 1997; (2) Crowley's prior
conviction in 1990 for possession of scheduled drugs involving sales of
marijuana stored upstairs in his home; (3) statements of Deputy Randy Wing
of the Somerset County Sheriff's Department that in December, 1996, he
responded to a burglary at defendant's residence; that, when he arrived,
defendant's son, and then later defendant's wife, would not let him inside
the residence; and that the wife was extremely agitated that the deputy was
at the residence; (4) statements of two confidential informants, identified by
Officer Gottardi as reliable, that each had friends still purchasing marijuana
from defendant at his residence until February 18, 1997.
	[¶3]  When the State appeals from the Superior Court's order
suppressing evidence, we "review directly the finding of the magistrate who
issued the warrant that probable cause existed."  State v. Perrigo, 640 A.2d
1074, 1076 (Me. 1994) (citations omitted).  In determining whether
probable cause exists, the magistrate applies the "totality of the
circumstances" test adopted in Illinois v. Gates, 462 U.S. 213 (1983).  State
v. Perrigo, 640 A.2d at 1076.  That test requires that the magistrate's
probable cause finding be made upon "the factual and practical
considerations of everyday life on which reasonable and prudent men, not
legal technicians, act."  State v. Lutz, 553 A.2d 657, 659 (Me. 1989)
(citations omitted).  It requires the issuing magistrate "simply to make a
practical, common-sense decision whether, given all the circumstances set
forth in the affidavit before him, 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."  Illinois v. Gates, 462 U.S. 213, 238 (1983).
	[¶4] A court must review the affidavit "with all reasonable inferences
that may be drawn to support the magistrate's  determination." State v. Lutz,
553 A.2d at 659.  Further, courts must "not . . . make a de novo
determination of probable cause, but rather must accord deference to the
magistrate's decision and must limit its inquiry to the question of whether
there was a 'substantial basis' for the magistrate's single required finding of
probable cause."  Id. (citations omitted).  Moreover, courts must give the
affidavit a "positive reading" and not a "grudging reading."  State v. Ward, 624
A.2d 485, 487 (Me. 1993).
	[¶5]  We have stated since Gates that "whether past circumstances
disclose a probable cause that is still continuing at the time of the request
for a search warrant is not determined merely by the passage of time, but
may also depend upon the circumstances of each case."  State v. Friel, 508
A.2d 123, 127 (Me. 1986) (citing State v. Willey, 363 A.2d 739, 742 (Me.
1976)).  For this reason, we have "refrained, therefore, from prescribing any
per se rule fixing a specified period as a mandatory maximum time within
which, to be valid, a search warrant must be sought after occurrence of the
events relied upon to show probable cause; the approach is ad hoc in terms
of the circumstances of each case.  . . ."  Willey, 363 A.2d at 742.  In this
case, the challenged information from an informant that he had purchased
marijuana until late 1996 was at least two months old at the time the
affidavit was presented and the warrant issued on March 5, 1997.  Under
the totality of the circumstances test, however, the stale information should
be considered in conjunction with the affidavit as a whole and may be
freshened by the other corroborating statements in the affidavit. 
	[¶6] We have also stated that probable cause may be based on an
informant's statements.  Under the totality of the circumstances test, "an
informant's 'veracity,' 'reliability,' and 'basis of knowledge' are all highly
relevant in determining the value of his report." State v. Knowlton, 489 A.2d
529, 531 (Me. 1985) (quoting Illinois v. Gates, 462 U.S. at 230 (1983)). 
Under this test, however,
those elements should [not] be understood as entirely separate
and independent requirements to be rigidly exacted in every
case. . . . Rather . . . they should be understood simply as closely
intertwined issues that may usefully illuminate the common-
sense, practical question whether there is "probable cause" to
believe that contraband or evidence is located in a particular
For example, "[a]n informant's reliability is not to be considered 'an element
separate and apart from the general inquiry whether the affidavit as a whole
establishes a sufficient basis' for the warrant." State v. Perrigo, 640 A.2d at
1076. Moreover, "[c]orroboration enhances the credibility of information
from informants that is presented in a search warrant, but there is no rigid
requirement that all assertions of an informant must be corroborated . .
.[because] that would be inconsistent with the 'totality of the circumstances'
test." Id. (citations omitted).
	[¶7]  The same rationale applies to an informant's basis of knowledge.
Although we have stated that "conclusory statements without a recital of the
underlying factual circumstances will not suffice," State v. Willey, 363 A.2d at
741, the basis of knowledge is no longer a separate and independent
requirement but one that is closely intertwined with the other elements to
illuminate the question of probable cause. See Gates, 462 U.S. at 239
(beyond the bare bones affidavits of Nathanson and Aguilar, based on a wholly
conclusory statements, a more flexible, common-sense standard better
serves the purposes of the probable cause requirement).  
	[¶8] Deferring to the magistrate's historical factual findings and
considering the totality of the circumstances, we conclude that the
potentially stale first-hand information, freshened by the corroborating
conclusory statements, and the furtive behavior of the wife, taken as a whole,
establish the necessary substantial basis for the magistrate's finding of
probable cause.  Accordingly, we vacate the Superior Court's order granting
defendant's motion to suppress.  
	The entry is:
Order vacated.  Remanded for entry of an order
denying defendant's motion to suppress evidence.

Attorneys for State: David W. Crook, District Attorney Evert Fowle, Asst. Dist. Atty., (orally) Court Street Skowhegan, ME 04976 Attorney for defendant: John Alsop, Esq., (orally) Alsop & Mohlar P O Box 417 Norridgewock, ME 04957
FOOTNOTES******************************** {1} Lipez, J. sat at oral argument and participated in the initial conference but resigned before the opinion was adopted.