Joe M. Appleton was tried before jury for the crime of unlawful possession of methamphetamine under 22 M.R.S.A. § 2210 and of unlawful possession of cannabis or marijuana under 22 M.R.S.A. § 2383. He was found guilty of both crimes. Sentenced on the former conviction to a term in Maine State Prison for not less than one year and not more than two years, he appeals to this Court from the judgment on several alleged grounds of error.
He states that
“1. The Court erred in denying Defendant’s Motion to Suppress in that—
(a) The affidavit was insufficient on its face to justify the issuing of a search warrant by the Complaint Justice;
(b) The affidavit was insufficient on its face to justify the issuing of a search warrant which was to be executed in the nighttime;
(c) The warrant was illegally executed in that the officer did not give a receipt for the property taken; The inventory was not made in the presence of the Defendant;
The officer, before entering the apartment, did not give his authority and the purpose for his entry;
2. The Court erred in allowing the chemist to testify as an expert.
3. The verdict is contrary to the weight of the evidence.
4. The verdict is not supported by substantial evidence.”
I
Sufficiency of the affidavit respecting probable cause.
This issue was presented to the trial Court on a motion to suppress evidence seized in *366 the search of the defendant’s apartment on the third floor at 51 Knox Street in the City of Lewiston. The defendant complains about the partial denial of his motion which permitted the methamphetamine seized in the search to be used against him at trial.
The affidavit incorporated by reference in the application for the search warrant and in the warrant itself (See, State v. Hollander, 1972, Me.,
“STATE OF MAINE ANDROSCOGGIN, SS.
AFFIDAVIT
I, Robert A. Soucy, a Detective sergeant with the Lewiston Police Department and a duly sworn police officer have reasonable grounds to believe that there is an amount of METHAMPHETAMINE (SPEED) in the appartment (sic) (6) 51 Knox Street Lewiston, Maine. This appartment (sic) is occupied by Joseph Appleton.
My grounds for believing that methamphetamine (speed) is present at the above location are: (1) On this date, a reliable co-operating citizen told me that he had purchased some methamphetamine in this apartment and saw more in the apartment today. (2) This co-operating citizen brought this methamphetamine in to be tested, and the test was positive. (3) This co-operating citizen also bought some methamphetamine on the 24th of August 1971 for us. (4) This cooperating citizen informed us that a [named female] had moved into this apartment with Joseph Appleton. This was checked out with where she used to live at the YWCA. She has not been seen there since Sunday August 22 1971. She was observed by us at 51 Knox St. (4) (sic) This cooperating citizen also bought some LYSERGIC ACID DIETHYLAMIDE (LSD) for us previously.
Having attended a Federal Narcotics school, in Louisville Ky. I have been trained to make certain tests for dangerous drugs and have these kits at my disposal. The reliable co-operating citizen has given us other information in the past that was correct.
Robert A. Soucy
Det. Sergeant Robert A. Soucy
Sworn to before me this 25th day of August, 1971
James F. Cosgrove
James F. Cosgrove complaint justice ”
Methamphetamine, the object of the search, was property for which a search warrant could issue, as its possession by the defendant was unlawful under 22 M.R.S.A. § 2210. Rule 41(b)(3), M.R.Crim.P.
The affidavit discloses on its face that probable cause for the affiant’s belief that methamphetamine, at the time of the application for the search warrant, was present in the Appleton apartment had to' rest heavily upon the word of the unidentified “cooperating citizen” or informant. The officer-affiant’s conclusory statement in his application for the search warrant that he had probable cause to believe and did believe there was then 'being concealed in the apartment methamphetamine and that said contraband was being illegally maintained and possessed contrary to 22 M.R. S.A. §§ 2210, 2215 was for all that appears from the affidavit wholly founded upon the information given to him to the effect that, sometime on the very day of the application for, and execution, of the search warrant, the informant made a purchase of methamphetamine at the apartment and saw some more there at the time. The officer did not personally observe the transaction, nor was he in the apartment at any time before the search. The only nexus between the defendant’s apartment and the drug transaction in question was that supplied by the informant’s report. The affiant’s *367 personal observation that a named female was seen at that apartment and his confirmation through other sources that she had apparently left her usual habitat for the period of a few days furnished no> factual data implying any connection with the type of illegal activity for which the search warrant was being obtained. At best, it only served to identify the apartment where the single sale of methamphetamine took place and thus adduce some credibility to the report. Much, then, depended on the informant’s reliability. The affidavit centers the foundational basis for the informant’s trustworthiness upon the fact that the informant’s purchase at the apartment was turned over to the police who, upon analysis, personally observed it to be methamphetamine and upon the added circumstance that on the previous day the informant at the affiant’s request had brought in some methamphetamine which tested out as such. That the August 24 sample was obtained through a purchase as directed remains in the realm of hearsay since no supporting personal observation of the purchase is revealed in the affidavit. The same must be said of the previous requested purchase of lysergic acid diethylamide (LSD), the date of which is not stated.
We must approach the question of the validity of the instant search warrant with a view to test it for compliance with the federal constitutional standards of the Fourth Amendment as defined by the Supreme Court of the United States, and, in addition thereto, for conformance with the added requirements of Rule 41, Maine Rules of Criminal Procedure. Under the Rule the affidavit must contain all the information in support of the magistrate’s finding of the existence of probable cause. Neither the magistrate nor a reviewing court can go outside the four corners of the affidavit to determine the existence of probable cause. State v. Hawkins, 1970, Me.,
The Complaint Justice who issued the warrant, however, in his determination of the existence of probable cause was not confined to the direct assertions of facts and circumstances disclosed by the affidavit, but could consider also all reasonable inferences of which such facts and circumstances were reasonably susceptible. State v. Benoski, supra; Irby v. United States, 1963,
Affidavits for search warrants, on the other hand, must be tested and interpreted by the magistrate to whom application is made for their issuance and by the courts in appellate review “in a commonsense and realistic fashion” without adherence to unnecessary technical niceties. State v. Benoski, supra; State v. Hawkins, supra; United States v. Ventresca, 1965,
The central question facing the magistrate when asked to issue a search warrant in the instant case was, whether from all the factual circumstances disclosed in the affidavit and all the reasonable inferences flowing from them he was satisfied the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the criminal law, in this instance unlawful possession of methamphetamine, was being violated on the premises to be searched, and if the apparent facts set out in the affidavit were such that a reasonably discreet and prudent person would be led to believe that there was a commission of the crime of unlawful possession of methamphetamine, then there was probable cause justifying the issuance of the search warrant. Dumbra v. United States, 1925,
That the information upon which, in whole or in part, a search warrant issues is hearsay to the officer-affiant, as distinguished from facts personally known to him, does not ipso facto negate the existence of probable cause. An affidavit is not to be deemed insufficient by virtue of the mere fact that it sets out personal observations of the informant and not those of the affiant, so long as a substantial basis for crediting the hearsay is presented or the nature of the information be such that the magistrate can properly infer that it was received by the informant in a reliable way. Jones v. United States, 1960,
The constitutional restrictions upon searches and seizures were obviously designed for citizen protection against official invasion of privacy and the security of property. The exclusionary rule in respect to unreasonable searches and seizures was adopted as a means for efficient enforcement of the constitutional mandate. Such evidence, if it were to be considered by the magistrate issuing the warrant, would be relevant evidence and by no means that type of evidence deemed inherently unreliable or prejudicial. Under such circumstances, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege and prove his charge of illegality. Jones v. United States, 1960,
A reading of the affidavit reveals that the officer-affiant made no personal observations respecting any criminal activity at the apartment of the defendant designated therein as being apartment (6) at 51 Knox Street, in Lewiston, Maine. *369 The fact that on the twenty-fifth day of August, 1971, the same day the affidavit was made, the search warrant issued and executed, a purchase of methamphetamine was transacted in the reference apartment and that there was “more” actually seen in the place, depended wholly upon the personal observation of the unidentified informant. . This was hearsay evidence and before the magistrate could accept the same and conclude that narcotics were probably present at the time in the apartment, the officer-affiant had to establish in his affidavit a reasonable basis upon which the magistrate could himself reach the conclusion that the affiant as a prudent and discreet person could credit the hearsay or determine that the information was reliable. The informant’s alleged ability to obtain some methamphetamine the previous day at police request from some undisclosed place or person without any corroborating circumstance of the factual assertion that he purchased it, as well as his previous alleged purchase of LSD at an indefinite time in the past, have little probative value tending to indicate that the informant should be believed respecting his stated purchase of methamphetamine in the defendant’s apartment on August 25, 1971. However, the informant’s delivery of the methamphetamine to the officer-af-fiant on the same day of his asserted purchase of the same from the defendant’s apartment carries inherent credibility value of some probative force in that such action in and of itself involved him in the commission of crime, since his possession of the narcotic contraband was a criminal offense. An informant is not likely to turn over to the police such criminal evidence unless he is certain in his own mind that his story implicating the persons occupying the premises where the sale took place will withstand police scrutiny.
What quantum of information is necessary to support an affiant’s belief that an unidentified informant’s information is truthful has recently been considered by the Supreme Court of the United States in the landmark case of United States v. Harris, 1971,
“People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility— sufficient at least to support a finding of probable cause to search.” (Emphasis supplied.)
It is unnecessary for us to decide how far we should extend the rule which justifies the admission of declarations against interest as an exception to the hearsay rule to declarations against one’s penal interest beyond the factual scope of the instant case. See, State v. O’Clair, 1972, Me.,
This brings us to the defendant’s next contention that the affidavit was insufficient on the probable cause issue because of the absence therein of any averment as to the time of day when the affiant received his information from the anonymous informant or as to the time of day when the informant made his purchase of methamphetamine in the apartment to be searched. We must point out that, contrary to the facts in Rosencranz v. United States, 1966, 1 Cir.,
“must set forth the basis for the magistrate’s inferences with enough precision so that, if the affidavit is subjected to an attack for lack of probable cause at a subsequent hearing, the trial judge will be ruling on the reasonableness of inferences based on the same underlying circumstances as confronted the commissioner [the Complaint Justice].”
Where the single purchase is related to the day of the making of the affidavit and issuance of the warrant and where the affidavit further discloses that the informant saw more of the narcotic drug in the apartment, the Rosencranz requirements were fully satisfied. Interpreting the affidavit in a commonsense way, the Complaint Justice was justified in inferring that the purchase would not have been made prior to 8 or 9 a. m. on that day (a reasonable time to make a call in the morning) and, taking into consideration that more of the narcotic drug was seen at that time, he was further justified as a discreet and prudent person in believing that there probably was some more there at the time he issued the warrant.
Search warrants have been sustained on affidavits disclosing single sale of contraband in the place to be searched on the day before the making of the affidavit. United States v. Barbini, 1928, D.C.Cal.,
II
Sufficiency of the affidavit to support a nighttime search.
The defendant contends that the facts presented by the affidavit were not such as to bring the case within the meaning of Rule 41(c), M.R.Crim.P. which says that
“[t]he warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct it to be served at any time.” (Emphasis added.)
The Rule may be satisfied respecting affidavit positiveness, where the affiant’s conclusion is based on hearsay from a reliable informant. See, United States v. Plemmons, 1964, 6 Cir.,
*371 We do recognize that Rule 41(c) requires a greater quantum of facts to be disclosed in the affidavit than that necessary only to support a belief that the property probably is to be found in the premises for which a daytime-search warrant is being sought. On the other hand, the factual recital need not be such as to generate belief beyond a reasonable doubt and exclude the possibility that the contraband might have been removed. The Rule does not require the magistrate to find positively that the property is in the place to be searched, but only that the affidavit is positive, i. e. discloses sufficient facts to warrant the affiant in asserting a positive belief. United States v. Arms, supra.
The reason for the somewhat higher standard of factual assertions in affidavits to justify the issuance of nighttime-search warrants imposed by Rule 41(c) lies in the peculiar abrasiveness of official intrusions at such periods. Intrusion into an occupied home in the middle of the night is plainly a greater invasion of privacy than entry during the day. The Complaint Justice in the present case was dealing with a request for a nighttime-search warrant at about 7:15 in the evening of August 25, 1971 which he could infer would be executed in the early part of the evening and not in the middle of the night, since under Rule 41(c) the warrant commanded the officer to search the apartment “forthwith” and since proper police enforcement of the narcotic laws would seem to require the search to be made without unreasonable delay. We are of the view, as was the Court in United States v. Daniels, 1950, D.C. New Jersey,
“ * * * the rule requires nothing more than an explicit statement, supported by positive evidence, as distinguished from negative evidence, ‘that the property is in the place to be searched.’ The explicit statement may not rest upon inferences drawn from the absence of evidence. The rule requires averments of fact sufficiently persuasive to support a reasonable inference that the property is in fact on the premises. A more rigid construction would require proof beyond a reasonable doubt that the property is in the place to be searched. Such a construction would enable the criminal to completely conceal an illegal enterprise behind an insurmountable barrier, provided, of course, he pursued it only at night.”
Having in mind that “the resolution of doubtful or marginal cases in this area should be largely determined by the preference to he accorded to warrants” (United States v. Ventresca, supra), we sustain the validity of the issuance of the search warrant for nighttime execution in the instant case within the limits of the facts disclosed in the reference affidavit.
Ill
Improper execution of the search warrant.
The defendant says that Rule 41 (d) was not complied with, in that the officer taking property under the warrant did not give to him from whose premises the property was taken a receipt for the property taken while on the premises and that the inventory was not made in his presence, where he was then present on the premises. The evidence at the suppression hearing disclosed undisputably that the police violated the requirements of the Rule in that respect. In State v. Martelle, 1969, Me.,
The defendant next argues that, by reason of the police’s alleged failure before entry to give notice of their presence, authority and purpose, the search, even though under the search warrant, became an unreasonable search within the ban of Fourth-Fourteenth Amendment mandate. We recognize that police execution of search warrants, especially in the case of nighttime entries in homes, tend to disturb the security of the people which the Federal and State Constitutions set out to protect and that unannounced forcible entries, even when narcotics are involved, may, in the absence of exigent circumstances, be so unreasonable as to violate the spirit and letter of the constitutional provisions. See, People v. Gastelo, 1967,
IV
Admissibility of expert chemist’s testimony.
The State’s expert testified that he graduated from the University of Maine in 1969 with a Bachelor of Science degree; that following graduation, he taught science and “math” until June of 1970 when he joined the State laboratory as a chemist; that thereafter he tested police evidence for their drug contents on at least 50 occasions; that he was familiar with known charts accepted in the field as proper determinants of certain drugs and how to operate machines used in the laboratory for comparison readings of sample tests of unknown substances; that he testified in courts of this State as an expert on many occasions. Full cross-examination in no way destroyed his qualifications as an expert. The witness’ expertise was for the presiding Justice’s determination as a preliminary question and his decision thereon is not subject to reversal except for abuse of sound judicial discretion. There was no error on that score. The witness disclosed special training and familiarity with the subject matter of chemical tests for drugs qualifying him as an expert in the field. His testimony was for jury evaluation. State v. Fitzherbert, 1969, Me.,
V
Sufficiency of evidence to support the verdict.
No purpose would be served in reciting at length the evidence that produced the defendant’s conviction at the hands of the jury. All we need say is that, in view of all the evidence, the jury was justified in believing beyond a reasonable doubt that the defendant was guilty of the crime of unlawful possession of methamphetamine.
The entry will be
Appeal denied.
All Justices concurring.
Notes
. We do not concern ourselves with the possibility that, in certain appropriate circumstances, an “issue of fact necessary to the decision of the motion” under Rule 41(e), M.R.Crim.P., could require the justice hearing the suppression motion to receive evidence tending to mount an attack on the veracity of sworn allegations in an affidavit which is adequate on its face. See, United States v. Thornton, 1971, D.C.Cir.,