State v. Rabon

2007 ME 113

STATE of Maine B. et

Charles RABON al.

Supreme Judicial Court Maine.

Argued: May 2006. Aug.

Decided: LEVY, CALKINS,

Majority: SILVER, JJ. ALEXANDER, J.

Concurrence: SAUFLEY, Dissent: C.J. CLIFFORD, J.

LEVY, J. Rabón Charles B. and Sharon R. judgments conviction en- appeal from (Oxford Superior Coun- tered Court J.) Gorman, on Charles’s conditional ty, furnishing for unlawful guilty plea (Class C), 17-A M.R.S. drug scheduled (2006) 1106(1-A)(A) plea § and for crimi- (2006), forfeiture, § and nal M.R.S. un- guilty plea conditional on Sharon’s of a possession lawful scheduled 1107-A(1)(C) (Class D), § 17-A M.R.S. (2006). Rabons contend that C.J.) it de- (Humphrey, court erred when joint suppress their motion to based nied initial warrantless on its conclusion entry into Rabons’ offi- apartment Department Rumford Police cers unlawful, of the suppression but that required based on evidence was exception the exclu- inevitable sionary We conclude because rule. to search did not exist probable cause during obtained the information without entry, exception no the initial warrantless Rowe, General, Attorney G. Don- Steven requirement or the exclu- to the warrant (oral- Macomber, Atty. ald W. Asst. Gen. sionary and we vacate applies, rule Gen., Fisher, ly), Atty. W. Asst. David convictions. Augusta, for State. I. BACKGROUND Martemucci, (orally), Esq. James F. summer During LLC, Portland, [¶2] Topchik, Martemucci & Department received Rumford Police Sharon, Sharon, (orally), Esq. Leonard I. indicating that the Rabons were Auburn, formation Leary DeTroy, & for defendants. Flor- transporting cocaine from involved in po- C.J., Maine. The Rumford SAUFLEY, for sale in Panel: and ida Drug ALEXANDER, CALKINS, lice, with the Maine CLIFFORD, cooperation (MDEA), investigat- LEVY, Agency SILVER, Enforcement JJ.* * opinion was certi- argu- before this ence but retired H. Dana Jr. sat at oral Justice Howard fied. participated in the initial confer- ment and Rabons,

ed the on August safety search of the house for or firearms sought inhabitants, and obtained warrant to search photographs other took of the the Rabons’ apartment for evidence of apartment, inside of the amade list of drug trafficking. telephone numbers listed thе Ra- bons’ telephone’s caller ID. The officers Preceding A. Events the Issuance of the then sat with the Rabons to await the Search Warrant issuance of a search warrant. [¶ 3] The information concerning the Ra- agent participated [¶ 5] The MDEA who bons’ from a activities came confidential in the preparation the warrant request informant subject who was the of a pend- included in ten and paragraphs eleven of ing charges. criminal charge The infor- his affidavit concerning requested mant prosecutorial consider- other officers’ warrantless into the ation if any of the information he or she apartment. Rabons’ The District Court provided proved helpful in drug traffick- J.) (Rumford, Lawrence, issued a search ing case. The confidential informant resulting warrant at 4:31 P.M. search claimed that Charles Rabón drives to Flor- led the seizure of during year ida several pick times cocaine money. cocaine, up large brings amounts the cocaine apartment back to the that he B. The Warrant Affidavit Rumford, shares with his Sharon in wife paragraph [¶ 6] The first of the warrant and then most of distributes his cocaine to agent’s affidavit training details the and local dealers for at local sale bars where experience in drug law enforcement and operates Charles karaoke a business. investigations.1 The second paragraph ex- Court, Superior [¶ As found the by 4] on plains agent seeking that the was the war- August police five officers were sent to rant at the request the Rumford Police the apartment Rabons’ to secure the scene Department to search the Rabons’ apart- in anticipation of the issuance of a search ment and van Plym- “both situated to sought by that was other (Oxford Rumford outh Avenue in County), officers. The officers arrived at the Ra- Maine[,] ... and cocaine other evi- apartment bons’ at 11:58 A.M. An officer pertains possession, dence as it to furnish- clothes, in plain wearing but a vest that ing of scheduled trafficking drugs.” and/or clearly police officer, him as a identified The remaining paragraphs detail the initial knocked on the front door closed of the by information provided the informant in apartment. One the other officers ob- August June of and on and served a woman peek through the blinds of explain and extent to which the a window near door. One of the offi- police were able to corroborate the same. say shit,” cers heard the woman “Oh and reports police [¶ 7] The affidavit observed her run toward back of the Rabons’ corroborated blue van apartment. immediately The officers August was not at their on opened apartment apart- the door and entered the August and and that it ment without returned consent located both Ra- a period corresponding to the sitting bons. Charles found at a informant’s was desk on which claim that were returning there was of white the Rabons’ container addition, powder from a run Florida. In digital drug and a scale. The officers to Rabons, handcuffed reports police conducted a brief affidavit corroboration of agent’s Appendix 1. The opinion. MDEA affidavit is attached A to as this number, None- names, knocking apartment’s ad- on the door. telephone Rabons’ dress, car, theless, suppres- their build- concluded that color of court fact had re- result of ing, the that Charles Rabón obtained as a of the evidence sion ceived a summons for excessive noise of the post-warrant initial and searches search, subject not been to a and that had required. apartmеnt was Rabons’ area, in the two bars Rumford Mexico discovery ex- applied the inevitable court as named informant locations where rule, exclusionary and con- to the ception in drugs, Rabón trafficked were Charles truly inde- cluded “the warrant places drugs known where entry[,] illegal from the pendent [initial] noted, already it also are trafficked. As physical of the evidence description contains a into truly inevitable.” lawful means apartment by Rabons’ earlier joint mo- After the denial of the 10] [¶ day. suppress, to Sharon Rabón entered tion posses- Suppress guilty plea C. The Motion to conditional unlawful (Class D), drug 17-A of a scheduled sion arrest, Rabons Following their 1107-A(1)(C), and, § to a pursuant M.R.S. charged aggravated each traf- were with agreement, aggravated trafficking plea (Class A) ficking drugs pursu- scheduled the indict- and criminal forfeiture counts of A(1)(C—1)(1) § to 17-A ant M.R.S. 1105— were the State. ment dismissed (2006), seeking and a count criminal forfei- guilty entered conditional Charles Rabón pursuant § ture 15 M.R.S. furnishing a scheduled plea unlawful filed a all joint suppress Rabons motion 1106(1- (Class C), § 17-A M.R.S. apart- obtained from their A)(A), plea and his and as a result this had, They that ment. contended the forfeiture, the dismissed to criminal cause, probable without conducted a war- trafficking The Su- aggravated the count. they initially rantless search when entered condi- perior approved Court Rabons’ apartment and had then used the guilty thereby preserving illegally pleas, tional through formation obtained deni- right in a to from the court’s probable appeal search to establish cause their ap- suppress.2 warrant affidavit. The Rabons contended their This al of motion the resulting search warrant was peal followed. upon wrongfully based obtained informa- was, therefore, unlawful, in viola-

tion II. DISCUSSION tion of the United Stаtes and Maine Con- stitutions. beyond question “It is [¶ 11] home, of an rights and the person’s mo- Superior The Court denied the home, special individual within that the suppress. tion to The court found jurisprudence.” in our State Bol place entry into Rabons’ initial warrantless (Me.1985). lard, The 488 A.2d by illegal justified was and not apartment and Maine Constitutions United States to the exigent exception circumstances right to secure one’s guarantee the requirement. The court reasoned warrant and sei- by from unreasonable searches exigency created home had imprison- Rabón was im- sentenced service. Sharon sentenced 2. Charles Rabón was years, days, suspended, with all but prisonment ment for two-and-one-half for 364 all days suspended, years proba- and two year probation. one tion, public including one hundred hours zures.3 A is, rant; warrantless search because, of a home or Superior Court law, as a matter of concluded, unreasonable unless: inevitable excep- (1) supported by “it is probable cause” and permits tion the admission of the evidence “exigent requiring circumstances exist seized from the Rabons. search,

prompt without delay occa- warrant”; (2) sioned the need for a parties’ contentions “the is pursuant search to another recog- (A) cause us to consider: exigent cir nized exception require- to the warrant exception cumstances to the warrant re Leonard, ment.” State v. (B) quirement; a temporary seizure of the ¶ 12, (quotation marks premises to secure the scene pending the omitted). issuance of a warrant as an exception to (C) requirement; the warrant indepen Rabons’ central contention is dent exception source to the exclusionary that because the probable officers lacked (D) rule;5 and the inevitable discovery cause to search the apartment prior to the exception exclusionary to the rule. As will entry, warrantless gathered no evidence explained, be further any of these ex from the initial entry warrantless into the ceptions apply, the officers must have apartment or from the subsequent search had cause to search the Rabons’ apartment of the pursuant to the warrant apartment at the time they made can be admitted against them. The State their initial entry warrantless into the contends that the contested evidence was apartment. begin by We identifying and lawfully seized because the officers’ initial explaining exceptions these and how each entry warrantless into was dependent on probable justified this exigent circumstances ex- case. We conclude ception addressing wheth requirement;4 er, justified totality under the reasonable, circumstances, nonetheless as a tem- porary there seizure in order to secure cause to search premises preserve any apartment prior evidence within Rabons’ to the officers’ pending the issuance of a search war- warrantless apartment. into the 3. The United provides, States Constitution work for its conclusion that neither the evi right people "The of the to be secure in their police following dence seized the their houses, persons, papers against and effects entry, initial warrantless nor the evidence seizures, unreasonable searches and shall not following seized the issuance of the search CONST, be violated.” U.S. amend. IV. The warrant, suppressed. should be For reasons provides, Maine Constitution people "The addressed, fully to more we conclude that hоuses, persons, shall be secure in pa- their following the evidence seized the issuance of pers possessions from all unreasonable the search properly warrant is more analyzed CONST, I, searches and seizures.” ME. art. under what is known independent as the § 5. exception. Although source the inevitable independent exceptions source Although 4. the State did not file a notice of similar, they are are not identical. An inde appeal, right challenge Supe- has the to the pendent exception analysis source appro is regarding rior Court’s determination the issue priate exigent circumstances where a search appeal pursuant war circumstances on issued, A(3)(2006). § to 15 rant M.R.S. was but some of the information 2115— probable used to establish cause is deter Although the disagree Rabons and the State illegally mined to have been obtained. See properly as to whether applied the court the Storer, (Me. State v. 583 A.2d 1019 discovery exception, they inevitable do not 1990). challenge the court's use of the inevitable discovery exception analytical as the frame-

275 through Exigent “was an gained A. Circumstances evidence dependent as the tainted source as well exigent circumstances Storer, source.” v. 583 A.2d justification ap for searches warrantless (Me.1990) v. (quoting 1019 United States is a to plies compelling when “there need (1st Cir.1986)). Silvestri, F.2d 740 conduct a search insufficient time exception analysis An source independent to which secure a warrant.” State v. is circumstances where appropriate (Me.1996). Dube, How issued, the search warrant but some of ever, is probable prerequisite cause probable used to establish exigent justification the to circumstances illegally cause to have been is determined Leonard, 125, 1112, apply. See Storer, A.2d at 1019. If obtained. See A.2d the Accordingly, exigent at 994. magistrate proba- the would still have had exception circumstances to the warrant re ble warrant without the cause to issue the quirement authorizes the warrantless en information, unlawfully allegedly obtained only try this case if the officers had independent exception the source allows probable search the Rabons’ evidence, sup- admission apartment at the time made the they deci pression justified. Id. is not sion to enter the apartment. Rabons’ case, In present most B. Temporary Seizure of the Premises to sought suppressed to be evidence

Secure Scene during Ra the search discovered of a apartment following bons’ issuance temporary seizure of a search If conclude that warrant. we purpose preserving residence for the apartment was warrantless pending issuance of a warrant justified exigent neither circum under recognized is exception another exception require the warrant stances requirement. Such a seizure is temporary ment nor as a seizure of the constitutionally sound certain under cir premises, independent exception source cumstances, only but if the officers have analysis justified. is To determine wheth probable they cause to search at the time exception er will independent source entered the residence. Illinois v. See Mc of the evidence permit admission obtained Arthur, 326, 331, 531 U.S. S.Ct. case, in this pursuant to the warrant we: (2001); 148 L.Ed.2d Segura United (1) from the affidavit used ] “excisef States, ... obtain the warrant all the information (1984). here, applied 82 L.Ed.2d 599 if As obtained,” illegally have] been [to believed officers did cause to (2) judge and thеn determine whether the premises search the time they en have had magistrate “would residence, exception tered then this solely relying cause to issue inapplicable support and cannot the denial remaining on the Id. information.” suppress. of motion As first step, to the [¶ 18] Independent Exception C. The Source in ten eleven paragraphs detailing the initial war independent The source of the affidavit [¶ 16] permits entry consequent observa exception exclusionary to the rule rantless be excised from police the use of evidence that has been obtained tions of the must step, Turning to the second in violation of the Fourth Amendment to affidavit. affidavit we the redacted without the United States Constitution article review if I, to see paragraphs ten and eleven section 5 of Maine Constitution when magistrate nonetheless could have found from the initial entry reported warrantless probable cause to issue the warrant. Be- in paragraphs ten and eleven of the affida- vit, cause there magistrate is no determination there would not abe lawful means to regarding the para- warrant affidavit with apartment, enter the and it would not be excised, graphs ten and eleven we review inevitable police would law- de novo whether the fully evidence in the re- discovered they the evidence discov- affidavit, dacted read positively, is suffi- during ered their entry. initial warrantless Storer, cient probable to establish cause. See See 583 A.2d at 1020. Accordingly, United v. Barajas-Avalos, States 377 F.3d for the discovery exception inevitable (9th Cir.2004) (“We case, review de apply this it requires that novo question probable police whether cause had probable they cause the time exists after allegedly tainted information entered the apartment. Rabons’ affidavit.”). has been redacted from an If E. redacted affidavit Probable Cause support does not probable cause to search the apartment, All of the exceptions above to the independent

then the exception source will warrant requirement and exclusionary permit the admission of the contested require rule probable existence evidence. cause at the time of the initial warrantless entry into apartment. the Rabons’ The D. Discovery The Inevitable Exception parties do probable not contend that the inevitable ex analysis cause depending differs on wheth- ception is an additional analytical frame er we focus on the probable existence of work for considering the suppression of search at the time the made the evidence if we conclude that the initial entry, their warrantless or on whether the warrantless apart into the Rabons’ probable redacted warrant affidavit shows prior ment to the issuance of the search cause. warrant was unlawful because there was

no cause. The inevitable discov 1. The Probable Cause Standard ery exception exclusionary per rule To determine mits the use of has been cause, magistrate apply must the “totali obtained violation of Fourth Amend ty-of-the-circumstances approach” articu ment to the United States Constitution Gates, 213, 230, lated Illinois v. 462 U.S. I, and article section. 5 of the Maine Con (1983). 103 S.Ct. 76 L.Ed.2d 527 stitution when “inevitably that evidence when, Probable cause “given is established would have ‍​‌​‌‌​‌​‌​​​‌‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​​‌​‌‌‌‌‌‌​‌​‌‌​‌‍been discovered lawful all the circumstances set forth the affi Storer, means.” (quoting 583 A.2d at 1020 magistrate], davit before including [the Williams, Nix v. 467 U.S. veracity knowledge persons and basis of (1984)). 81 L.Ed.2d 377 supplying hearsay information, there ais specific question presented here is wheth probability fair that contraband or evi er the evidence discovered particu dence of crime will be in a found they initially when entered the Rabons’ lar place.” Wright, State v. securing with the intent of ¶ 8, (quotation marks inevitably would have been discovered omitted). give “Courts must the affidavit through lawful means. positive reading and review the affidavit If a warrant would not have with all may reasonable inferences that be issued without resulting support magistrate’s the information drawn to determi-

277 77, suspect had Higgins, prediction nation.” State v. ME that the informant’s ¶ 50, 20, (quotation drugs by purchase marks and to Florida traveled omitted). Florida and tracking suspect’s trip alteration 244-45, 103 return to Illinois. Id. at quick affidavit [¶ 23] When a warrant “It is The that: 2317. Court stated S.Ct. provided by information an infor reports assessing probable enough, purposes for mant, veracity knowledge basis of cause, other through that corroboration that: the informant are considerations the chances of information reduced sources entirely should as [not] understood tale, thus prevaricating reckless or of a independent separate requirements crediting providing a basis for substantial rigidly every exacted to be in case.... hearsay.” Id. marks and (quotation Rather, they ... should be understood omitted). alteration closely simply as intertwined issues may usefully the common illuminate Ap- Probable 2. The Cause Standard sense, question practical whether there Affidavit for plied Warrant cause” that con “probable is to believe Apart- the Search of the Rabons’ in par traband or evidence is located ment place. ticular signed The warrant affidavit (Me. Knowlton, A.2d agent largely on MDEA is based 1985) Gates, (quoting at U.S. provided him the confi information 2317). emphasized Gates affidavit, In viewing dential informant. totality-of-the-circumstanees approach redacted, in we positive light, its most as “permits a the rel balanced assessment of re the information in the affidavit assess weights ative of all the indicia of various (a) reliability and garding the informant’s: (and reliability attending an unreliability) (b) knowledge; regarding basis of claims tip.” informant’s (c) activities; and criminal Rabons’ may S.Ct. 2317. Probable be estab concerning of other information reports despite deficiency lished an affidavit’s analysis by the Rabons. We conclude the discrete areas. totality circumstances applying the Gates, In the Court considered an test. affidavit contained information de- anony- from a letter rived written Reliability and Basis of a. Informant’s mous informant. Id. at 103 S.Ct. Knowledge The had con- 2317. no information very cerning reliability the informant’s or basis The warrant affidavit reveals 26] [¶ background. knowledge. Id. at 2317. the informant’s 103 S.Ct. little about informant reports Because of the absence of direct informa- It confidential infor- reliability police wishing to share tion about the informant’s contacted occurring drug trafficking knowledge, the stated mation about basis of Court “prosecutorial in order to “something more” than the information Rumford receive any provided if provided by the informant needed “be- consideration drug helpful trafficking could that there in a case.” magistrate fore a conclude being informant not “something cause.” That is described as Id. non- as for being corrobora- but on bail by police probation, more” was established any offenses; receiving reported the informant’s related as tip tion of information; exchange affidavit. Id. 103 S.Ct. remuneration informa- provided additional investigation having and as corrоborated 278 drug trafficking average

tion on other in the area. citizen who has found himself in position of a crime victim or witness.” provide any The affidavit does not details LAFAVE, 2 WAYNE R. SEARCH AND information, regarding this additional or (4th ed.2004). § In SEIZURE 3.4 at 219 whether it had been found to be accurate. addition, report the affidavit does not that explain 27] The affidavit fails to [If any provided informant information for the knowledge basis informant’s that against penal the informant’s inter- own engaged drug Rabons were traffick- ests, which is another basis on which 187, ing. Crowley, See State v. 1998 ME reliability provided infer the of information ¶¶ 6-7, 834, 714 A.2d 837. The affidavit by an Dignoti, informant. See State v. 682 does not assert the informant had (Me.1996). 666, A.2d 670 actually any seen firsthand contraband or short, In the affidavit of activity. criminal The affidavit also does commonly fers no information of the type any not contain statement to the effect presented in search warrant affidavits the informant has been found or is magistrate opin would allow a to form an by agent otherwise believed the MDEA regarding anonymous ion an or confiden other law enforcement officials to be reliability tial informant’s or basis of reporter reliable of information. See id. In knowledge. all but a few of the war ¶ 6, 714 A.2d at 837. involving rant affidavits confidential or The informant is not a disin anonymous informants we have considered informant,” terested “citizen instead but is Gates, since the affidavits included at least a “confidential informant” “disclose[d] who a modicum of addressed information to in hopes the authorities of reliability the informant’s or basis of lessening exposure his or her own to crimi knowledge.6 supplies An affidavit that no nal Perrigo, sanctions.” State v. 640 A.2d reliability information about an informant’s (Me.1994). 1074, 1076 much “Courts are in knowledge provide or basis of fails to veracity more concerned with when the “highly formation that is relevant” tо the source of the information an informant cause determination. See Crow 187, ¶ 6, from the criminal ley, milieu rather than 1998 ME 714 A.2d at 837. ¶¶ 187, 2, 8, Crowley, ticipation illegal purchases 6. See State v. in controlled of 834, (named Nickerson, 1355, drugs); 714 A.2d 836-37 informant with State v. 574 A.2d (Me.1990) (informant potentially report personal stale first-hand information and 1356 informants); conclusory marijuana plants); reliable observation of v. Ha- statements State 831, (Me. (Me.1990) (informant Dignoti, ley, State v. 682 A.2d 670 571 A.2d 833 informants, 1996) (multiple including participation purchases illegal citizen in controlled Gallant, 1282, drugs); informants and one who made statement State v. 531 A.2d 1284 Allard, interest); (Me.1987) (informant against penal against penal State v. 674 actions Currier, 295, (Me.1996) interest); (monitored pur A.2d State v. 521 A.2d 297 (Me.1987) (informant past chases confidential informant and informa reliable in and in- informants); signal drug delivery suggesting tion from citizen formant concerned Ward, (Me. 1993) observation); Salley, personal State v. State v. A.2d informant, (first (Me.1986) (informant report partic- past, reliable in with A.2d personal drug activity; ipation purchases illegal observation of sec in three controlled Knowlton, report drugs); ond informant with of first-hand infor State v. 489 A.2d 530- (Me.1985) (informant against attempt pur mation and at monitored statements interest, chase); Veglia, penal statements another State v. informants, reliable, (Me. 1993) (two department that informant was infor- confidential both drug activity, past, personal reliable in and one involved in con mant’s observation Sickle, participation pur- purchases); v. Van and informant in controlled trolled (Me.1990) (informant cocaine). par- A.2d 693-94 chase of

279 State apartment); of infra-red observation information does The absence of such (Me.1989) 657, Lutz, 658-59 cause, but, 553 A.2d v. finding of preclude tip by observa- Gates, (corroborating informant infor in absent as established path with marijuana gardens tion of four mation, required. more” is “something partially cor- camp and 227, 103 leading to seasonal 462 U.S. named infor- information from roborating of Informant’s Claims b. Corroboration at seasonal resided mant that defendant Activity Suspicious of or Criminal Nason, 252, 253 A.2d v. 498 camp); State (Me.1985) tip (corroborating informant Our decisions establish suspicious of through police observation frequently supplied “something more” is eleven-day peri- activity at residence for of the informant’s by police corroboration od). Indeed, affi- every search warrant criminal reports regarding suspicious Gates, the have addressed since davit we by person suspected of activities depicting information Thibodeau, affidavit included See, wrongdoing. e.g., State v. ¶¶ overtly criminal contextually suspicious or 52, 3, 7, 596, A.2d 598-99 2000 ME 747 was observed activity by suspect who infor- (corroborating tip informant without to or other than in addition veracity or of knowl- someone mation about basis records, or confidential informant.7 utility anonymous and edge by analysis of (two house); Haley, con 571 A.2d at 833 frequent- of 7. Such direct observations are most illegal drugs); v. ly purchases See of State made law enforcement officers. trolled 100, 2-3, ¶¶ Dickinson, 783, (Me.1989) (air v. 2005 ME 881 Wing, State A.2d 784-85 559 651, (observations suspicious A.2d 653-54 of marijuana plants plane flyover of observation place behavior at to be searched over several property and observation on defendant’s 83, Coffin, period); ME month State v. 2003 marijuana plants on defendant’s woods of 5, 208, ¶ (observation of mari- 828 A.2d 209 Gallant, (con A.2d at 1284 property); 531 juana plants path plants to defen- with from suspicious statement purchase trolled and ¶¶ 187, 2, 8, home); Crowley, dant’s Currier, dealer); 521 A.2d at 297 defendant’s (observation 714 A.2d at 836-37 of furtive (discovery marijuana defendant after of behavior of defendant’s wife at defendаnt’s pre partial of pat-down and corroboration in addition to information from named home delivery); Salley, at 466 514 A.2d dicted informants); informant and two confidential (three illegal drugs); purchases of controlled 668, (observation Dignoti, 682 A.2d at 670 of (Me. Friel, 127 508 A.2d State v. predicted multiple in short time home visits 1986) (observation gun plain view in of period by alleged of defendant and associate pursuant home to another search defendant’s defendant); purchase implicating controlled Knowlton, (con warrant); A.2d at 530-31 489 Allard, (observation nu- 674 A.2d at 922 of Diamond, v. purchase). See also State trolled suspicious premises visits to and merous brief 1032, (Me. 1993) (probable A.2d 1033-34 628 Ward, premises); from two monitored sales by police observations cause not established conversation); (monitored 624 at 487 A.2d possibility of consistent with of activities (informant prediction Veglia, at 277 620 A.2d allegation activity an outside without criminal particular of defendant’s arrival at activity). criminal of subsequent cocaine observation of known have also stemmed Direct observations entering exiting apartment after users analysis investigation of evi from Storer, time); period 583 A.2d short of Higgins, 2002 ME State v. dence. See ¶¶ (Me.1990) (police observation of de- 1017-18 21-22, (officer’s investiga A.2d 57 796 woods); marijuana placing bag fendant scene, including DNA test re tion of murder Sickle, (controlled A.2d at 693-94 Van Nickerson, defendant); matching Edwards, sults drugs); purchases illegal State v. corroborating photo (receipt of (Me.1990) (observation A.2d at 1356 575 A.2d 322-23 Morse, A.2d graph); v. State leading directly marijuana plants path (match (Me.1989) logs impaled in victim’s residence); State v. plants defendant's from truck); (Me.1990) Townsend, logs of defendant's truck with A.2d (match (Me.1989) Barczak, (detection driveway marijuana odor from formation, An affidavit’s inclusion of positively, considered is sоme- regarding the observations of supportive what cause because person a by addition to an informant support it lends to the reliability of the required no probable means establish informant.8 The absence Rabons’ totality cause under of the circum 12, August van on 11 and and its return on stances test. As demonstrated in our deci not, however, August contextually 13 was sions, however, it is a form corrobora suspicious. frequently

tion that is included in warrant c. Corroboration of Other Information affidavits. Concerning the Rabons The affidavit in this case reveals MDEA corroborated, agent’s affidavit also police to a limited degree, provided corroborates other information report informant’s informant, by and such as the Rabons’ recently Charles Sharon Rabón had names, number, car, address, left Florida telephone and were en route back to possession Rumford in their van in the color apartment building, co- of their and caine. Specifically, police the fact that observed Charles Rabón had received a the Rabons’ van not parked at summons for excessive noise and had not 12, August their 11 subject and been to a search. The corrobora- that the van August readily returned on 13. This tion of this available information informant, partial corroboration of the informant’s in- persons reveals that the or the murder, 355, (Me. 1988) (defendant’s gun gun of defendant’s used in 356-57 former father, girlfriend, killings defendant’s defendant’s statements about before information informant); Marquis, from citizen State v. 525 general public, information released to 1041, (Me.1987) (statement against A.2d 1043 eyewitness description defendant's match of coworker). penal by interest named murderer). suspected police When the themselves have not ob is, however, substantially It less than the suspicious activity, servеd criminal or obser Gates, degree of corroboration considered in establishing probable vations cause for war police where the corroborated the informant’s rant have come from non-confidential or non- suspect gone claim that the had to Florida to Samson, anonymous informants. See State v. purchase drugs by actually tracking the sus- ¶ 33, 17, 977, (vic 2007 ME 916 A.2d 982 pect's trip to Florida and return to Illinois. ¶ tims); 13, 3, Wright, State v. 2006 ME 890 243, degree 462 103 S.Ct. 2317. The 703, (citizen informant); A.2d 704 State v. predictive to which information was corrobo- Basu, ¶¶ 74, 6-12, 686, 2005 ME 875 A.2d rated in this case is more akin to the circum- coworker, (victim’s 689-90 defendant’s friend Supreme stances considered Court in confessed, janitor he whom defendant's White, police Alabama v. where the corrobo- place employment, neighbors who heard tip by observing suspect traveling rated results); gunshots, as well as DNA test corresponded in a car in a manner that to the Wilcox, 7, ¶¶ 2-4, 711, 2004 ME 840 A.2d predicted to a had route motel as been Elwell, (victim); 712-13 State v. 325, 332, informant. 2412, 496 U.S. 110 S.Ct. ¶ 17, (victim); 793 A.2d 504 State v. White, (1990). 110 L.Ed.2d 301 which Lehman, 124, ¶ 2, ME 736 A.2d case,” was described the Court as a "close (victims); Perrigo, State v. 640 A.2d applied suspicion" the "reasonable standard (Me.1994) (citizen informant); State v. support Terry stop, a standard that is less Lamson, (Me.1994) (De 640 A.2d demanding than the cause standard partment investigator, Human Services at issue here. See id. at 110 S.Ct. defendant, victim, 2412; LAFAVE, various coworkers of see also 2 WAYNE R. attorney, 3.3(f) well victim’s as review of defen § SEARCH AND SEIZURE at 201-02 records); Hamel, (4th ed.2004) dant’s bank State v. (citing & n. 399 cases with facts (Me.1993) (named cooperat resembling A.2d White that were held to be insuffi- defendant); search). ing Candage, State v. cient for cause for arrest or informant, establishes concerning the Rabons to the providing informant, infor- persons supplying familiar with the Rabons. See were informant, familiar were mаtion to the LAFAVE, AND R. SEARCH WAYNE trafficking ed.2004). the Rabons and with 3.3(f) (4th with § at 179-80 SEIZURE vicinity. in the of two bars The informant’s identification as sites in the area known Analy- Totality of the Circumstances d. are trafficked establishes drugs where sis informant, persons pro- or the either the saw the Rabons’ 35] When [¶ informant, were information to the viding 13, in they were August return on van activity in the drug familial’with generally investigation. promising middle of a the no corrobora- area. The affidavit contains however, totality, in Considered its informant’s claim that Charles tion of the redacted, affidavit, does not as warrant business, karaoke nor does Rabón has a information that establishes contain information that corroborates contain reliability or basis of knowl- informant’s present Charles Rabón was ever whether any significant edge, or corroborate alleg- the informant at the two bars where the Ra- informant’s claim that way the drugs were sold. es the in Florida for re- purchased cocaine bons infor preceding None of the corroboration partial in Maine. The sale as “inside information” qualifies mation of police with the observation associated uniquely available to would be to, ‍​‌​‌‌​‌​‌​​​‌‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​​‌​‌‌‌‌‌‌​‌​‌‌​‌‍from, and return the van’s absence knowledge direct of other informant with strong is not “a apartment the Rabons’ activity. criminal See wise uncorroborated indicia of ... some other showing as to ¶¶ 9-10, Lafond, State v. by reliability” contemplated Gates An informant’s accurate A.2d 428-29. crediting magistrate in justify would readily of available information description unsupported claims the otherwise reliability in the “limited sense establishes by Rabons made activity criminal police correctly iden help will [that it] affi- an informant for whom tify person tipster whom the means concerning information provides no davit accuse,” but it “does not show that reliability or basis of the informant’s knowledge Gates, of concealed crimi tipster has knowledge. 462 U.S. See J.L., activity.” nal v. 529 U.S. could Florida Before the 103 S.Ct. 2317. “something 146 L.Ed.2d 254 apartment, 120 S.Ct. the Rabons’ enter (2000). all Here, required.9 “[G]iven de the informant’s accurate more” was affidavit forth in the circumstances set readily information scription available (1984), striking. dissenting 80 L.Ed.2d 721 Contrary opinion, our deci- 9. proposition presented “that Upton, sion does not stand for the warrant affidavit In be based probable cause for a search cannot concerning informant a named formation solely through a provided con- on information already known who 'something fidential informant without claimed, girlfriend, as she the defendant’s ” Rather, ¶ we conclude See 57. more.’ infra of sto- first-hand observation the informant's presented this circumstances under the possession the defen- property len be based cause could not case Thus, 2085. Id. at 104 S.Ct. dant. about whom little on a confidential informant provided from which facts warrant affidavit concerning relia- known the informant’s infor- magistrate could conclude knowledge, bility without some- or basis of she claimed to know what mant had basis fact, is, held. thing This what Gates more. activity. defendant’s criminal about the know addition, comparison of this case to In 733-34, 104 S.Ct. Id. at 727, 104 Upton, 466 U.S. Massachusetts including veracity ... and basis of hearsay knowledge persons supplying gradu- Municipal Police School and information,” the affidavit does not estab- Department ate of the United States probability

lish that there is a fair Drug Justice Enforcement Administration contraband or evidence of a crime would (DEA) Narcotic Law Enforcement School. be found in the Rabons’ apartment. See I am a for the certified Instructor ¶13, 8, Wright, 2006 ME A.2d at 705 En- Department Treasury Federal Law omitted). (quotation mаrks Training forcement Center trained and au- thorized to teach law enforcement

[¶ 36] Because cause did not throughout This certi- the United States. exist search the without the recognized fication is on the Federal both gained from the warrantless level and the Maine Criminal Justice apartment, into the none of the Academy. completed I have attended and exceptions above discussed to the warrant schools, seminars, programs various requirement exclusionary ap- or the rule investigation prosecu- related to the ply, and the from the Ra- evidence seized offenses, drug tion related criminal apartment during the initial war- bons’ - cluding specialized drug enforcement/in- entry subsequent rantless and the search schools, vestigation State and Federal law pursuant to the warrant should have been schools, update schools, drug identification suppressed. ordered I and search and seizure schools. also is: I, conduct various seminars where and oth- Judgments of vacated and re- conviction Municipal, county, er speakers, instruct manded proceedings for further consistent and Federal Law Enforcement Offi- opinion. this cers in the States and in in with United Canada drug investigative

various enforcement Appendix A identification, techniques, drug preparation affidavits, planning and search warrant agent Tony Affidavit of MDEA L. Mil- warrants, execution of search and arrest ligan in search warrant of Rabón and of confidential In the use informants. apartment and vehicle. my I experience, course of have authored STATEMENT OF SPECIAL AGENT support numerous affidavits submitted TONY L. MILLIGAN subsequently issued search warrants for presently employed Spe- 1. I am as a I drugs drug and related materials. have Agent Depart- personally cial conducted numerous undercov- of the State of Maine drug investigations er and assisted Safety Drug ment of Public Enforcement I executed numer- (MDEA) countless others. Agency and have been since De- drug drug-related ous successful Supervi- cember 1992. I am the Assistant and assisted in the execu- search warrants assigned sor to the Lewiston Task Force tion of others. my assign- current Office. Previous ment, I was a sworn law enforcement offi- applying I am for a search warrant Rumford, Depart- cer for the Maine Police request at the of the Rumford Police De- years where I approximately ment for partment for the CHARLES and SHAR- assigned patrol to road duties and their ON RABON residence blue in con- drug investigations enforcement bearing Maine Ford van [sic] Winstar T8ROKE, junction County Drug with the Oxford Registration both situated at 73 (Oxford graduate I am a 1989 Plymouth Task Force. Avenue Rumford (MCJA) Academy County), Maine to search for cocaine and Maine Criminal Justice were able the officers lowing is what possession, pertains evidence as other corroborate: trafficking of scheduled furnishing and/or on building That the blue drugs. a. in Rumford is situated Avenue Plymouth cooperating defen- B. In June Registration Avenue. Plymouth at 73 Police De- contacted the Rumford dant vicinity in the parked vehicles plates on wishing to share information partment on a blue included one of this address occurring in Rum- drug trafficking about to CHARLES registered van defendant, herein cooperating ford. This (Affiant Note: RABON. SHARON “CD”, probation on referred to as is not de- CD’s This corroborates information non-drug now for related but is on bail 3a); paragraph scribed in receiving any remu- offenses. CD is not Place in Rumford b. That Jack’s information exchange neration in for this are two in Mexico bars Tommy Guns’ consider- requested prosecutorial has but by the Rumford well that are known any provided helpful informаtion ation if Drug Enforcement and Maine Police trafficking (Affiant case. Note: drug trafficking oc- having cocaine Agency additional provided CD regular (Affi- basis. curring there on a area, trafficking activities in the but partially This corroborates ant Note: only that is relevant to that information para- described in CD’s information here). The follow- this case is described 3d). graph summary pro- the information ing is CD returned August 5. On vided: in- new/updated the Rumford Police with a. That a white male known as and his pertaining to CHUCK formation in a “CHUCK” resides blue follow- trafficking activities. The cocaine Plymouth in Rum- building on Avenue information ob- summary a of that ing is SHARON; ford his wife with Lt. Tracey Higley and by Sgt. tained b. That CHUCK drives to Florida the Rumford Police: Wayne Gallant of per year pick up three or four times full name is a. That CHUCK’s 2 kilo- large (approximately amount wife is RABON and his CHARLES brings cocaine and it back to grams) of They together RABON. five SHARON distribution; in his home Rumford for home Avenue and their Plymouth c. returns to Rumford When CHUCK (207)369-9935; number is phone cocaine, distributes with CHUCK week, SHAR- Last CHARLES b. dealers so most of his cocaine to local van and their blue RABON took ON him; they can sell for coming They will be to Florida. drove operates d. That CHUCK owns weeks one—two to Rumford within back in- at local bars karaoke music business co- kilograms approximately with in Rumford and cluding Jack’s Place caine; It is at these Tommy Guns’ Mexico. Note: CD also (Affiant c. identified cocaine is bars that most of CHUCK’S selling is the individuals one distributed; RABON. CHARLES cocaine for information, Sgt. name this individual receiving 4. After this identified premature release Rumford Police here since Tracey Higley and other investiga- hinder much will to corroborate as attempted Officers further formation tion.); The fol- possible. information as of CD’s recently d. That CHARLES RABON rates described in CD’s information 5d). got paragraph summonsed Rumford Poliсe for excessive noise and the time of that August approximately 7. 2004 at On violation, had ap- CHARLES RABON a.m., Sgt. Higley again 7:20 CD contacted proximately packages cocaine updated fol- provide information. The possession his that he intended on dis- lowing summary is a of that information: tributing. The cocaine was not seized a. That CHARLES and SHARON RA- because there was never a recently BON have left Florida and are search; presently en route back to Rumford in receiving updated 6.After this infor- van and transporting the blue are mation, Sgt. Higley They traveling and other Rumford cocaine. will be North- Auburn, attempted Police officers on Interstate 95 to the further cor- bound traveling Maine exit and then to Rum- provided roborate the information as best They ford from there. are due back possible. following is what today (August Rumford sometime officers have been able to corroborate: 2004); a. That CHARLES RABON and Plym- do SHARON RABON live a.m., At Rum- approximately 7:30 outh Avenue Rumford and their tele- ford Police Officer James Bernard drove (207) phone number is This 369-9935. past the CHARLES RABON residence information was confirmed law en- van again and re-confirmed blue (a prior forcement observations com- present. Sgt. Higley was not then notified plaint at this addressed a loud [sic ] your updated Affiant and me as to the party resulted in the facts and of the case. circumstances We confirmation suspect CHARLES RABON lives at the decided that the best course of action was address) by telephone company rec- Po- teletype to transmit to Maine State provided by (Affiant ords AT & T. Note: Turnpike requesting a on the lice units “be This corroborates CD’s de- suspects for the and their van lookout” 5a); paragraph scribed in traveling Northbound towards Rumford today request that the vehicle be and b. That CHARLES and SHARON RA- stopped for a search. own a blue BON 1998 Ford Winstar bearing Registration Van Maine [sic] a.m., approximately 9. At 11:21 while T8ROKE, plate confirmed Maine Bu- Drug en route to the Maine Enforcement reau of Motor Vehicles. Rumford Police in to out the Agency office Rumford send and checked the area CHARLES alert, I was notified Rumford Police everyday SHARON RABON’s home Sgt. Higley suspect vehicle had August since 2004 and has confirmed just Plymouth arrived Avenue present. that this blue van has not been conferring Rumford. After with Assistant partially Note: This corrobo- {Affiant Fisher, Attorney agreed General David we rates CD’s described in justify to that cause existed information 5b); paragraph search warrant for the vehicle and resi- 21, 2004, Rumford May assessment, c. That on Po- I upon dence. Based stopped go lice CHARLES RABON asked Rumford Police Officers him Rumford and summonsed for Un- and RABON resi- CHARLES SHARON necessary pending applica- Noise. search con- to secure the scene No was dence (Affiant ducted. Note: This corrobo- tion of a search warrant. a.m., Florida Rum- Sgt. transport

10. At 11:58 cocaine from approximately ford, I Stacy request further search Carter of the Rumford Police ar- any officers to search warrant authorize rived the front door CHARLES and van, vehicles, all the blue including and and SHARON RABON’s residence outbuildings and under CHARLES knocked. SHARON RABON came to the and/or control for evidence SHARON RABON’s Immediately front it.10 opened door and Further, I trafficking. of cocaine know there, upon seeing Sgt. standing Carter drug keep to be traffickers common through she ran kitchen turned and drug drug records of sales and records Fearing toward room. a back that evi- and other rec- computers, debts books destroyed dence or would be that SHAR- this, ord-keeping upon Based I devices. arm ON RABON would herself with any request authorization to search for weapon, ran after Sgt. Carter SHARON records/equipment. such hallway off the RABON into a kitchen[.] her, Upon reaching Sgt. Carter noticed 13.WHEREFORE, I, Special Agent a room off to his side CHARLES affiant, Tony pray L. Milligan, your sitting at a desk with RABON a set of may authorizing a issue search large and a scales container of white residence, outbuildings, above-described powder that resembles cocaine that he was and vehicles under CHARLES and/or scooping Sgt. onto the scale. Carter and SHARON control at said resi- RABON’s other officers immediately took dence for described property the above and, CHARLES and SHARON that if said property RABON into evidence and/or custody any part upon verifying nobody and else same and/or there, I hereby found it be seized. apartment, secured scene. swear under that the information set oath Presently, law enforcement officers in this and forth affidavit is true correct to are standing by at the CHARLES information, my knowledge, best guarding SHARON RABON residence belief, I make this oath and that under in the driveway vehicles pains penalties perjury. pending of a issuance search warrant. s/s 12. By previously virtue of the corrobo- Tony L. Milligan rated provided CD and to- Special Agent day’s events, I believe that Agency Drug Maine Enforcement justify exists the issuance of a search August 13, Dated: warrant for the CHARLES and SHARON J., ALEXANDER, concurring. in Rumford RABON residence to search for and seize evidence cocaine traffick- I that we must vacate the [¶ 37] concur ing. Since I know that traffickers I suppress. denial of motion to write the keep incriminating often con- evidence separately I do not concur in the because cealed outbuildings in vehicles and at or opinion probable Court’s cause home, near and since I that I sufficiently their believe search was nоt established be- probable cause to search CHARLES through cause the information obtained and RABON’s blue used to was not SHARON van the confidential informant suffi- window, pro- hearing, arresting through a shout a suppression 10. At the blinds of apartment. fanity, and the back of the that Sharon had not run to officers testified Rabón knocked, this opened they justice The found that is what door after but that motion happened. spotted peek a one officer had woman I ciently corroborated. concur with the evidence would in fact have occurred.” Heath, analysis cause and corroboration 455 F.3d United States v. Cir.2006). (2nd stated the Chief Justice dissent. Although probable

[¶ 38] cause search case, police In this and the [¶ 41] sufficiently established without reb- A.M., prosecutor, approximately 11:20 illegal anee on obtained in the evidence a process commenced the to obtain war- entry, I would vacate because the State A rant to search the Rabons’ home. half- failed to meet its burden to estabbsh that later, warrant, hour without a officers five discovery of illegally seized evidence appeared at Rabons’ home to “secure Williams, was inevitable. See Nix v. premises.” Immediately, and for rea- 104 S.Ct. 81 L.Ed.2d clear, police sons are knocked (1984) (noting prosecution has Looking through on the door. a window prove the burden to inevitable seeing express and one defendant shock at evidence). by a preponderance of the police presence, entered door, through an unlocked chased Sharon protects The Maine Constitution through apartment, appre- Rabón and people illegal Maine from home invasions kicking hended her after open bathroom and searches and from seizures of evidence door. arrested in an- Charles Rabón was illegal- from homes that have been entered other room where he was found with white ly. The Maine Constitution states: powder digital and scale. After the ar- people per- The shall be secure in their rest, the Rabons were handcuffed. The sons, houses, papers possessions and searched, apartment photos were from all unreasonable and sei- searches taken. The did not obtain a warrant zures; any and no warrant to search to search the until five hours place, any or person thing, seize or shall later. special designation issue without a searched, place person to be and the Superior correctly Court ana- seized, thing prob- to be nor without lyzed regarding law warrantless able supported by oath or affir- cause— searches. It that: “warrantless observed

mation. per searches are se unreasonable and CONST., I, § ME. art. any exception prove the State’s burden to requirement.” to the warrant The court I, protections of article sec- further observed that: “In order for a protections tion and the concurrent legal, warrantless to be there must the Fourth Amendment of the United exigent cir- be both Constitution, easily States cannot be cir- The court then found that cumstances.” by illegally seizing cumvented evidence exigent alleged circumstances this asserting discovery, by legal then that its means, purported concern was “inevitable.” constitution- Our case— might destroyed created protections person al for and home can be —“was police going knocking only special, narrowly avoided con- residence then, only justi- on the door.” The court then concluded purposes, strued when justification by high quality fied of evidence. As the that this was “not a sufficient entry.” cit- recently Second Circuit observed: “the basis for a warrantless After decision, ing exigen- to a noted that discovery evitable doctrine is available which only of own creation do high where there is a level of confi- cies law enforcement’s searches, justify the court contingencies dence that each of the re- not warrantless discovery a fact that: the circum- quired disputed “[U]nder for the of the found as Storer, A.2d by police this was means. State v. entry stances of case the (Me.1990). 1019-20 illegal.” amply in the record illegal court’s an supports finding the of First Cir- apply we the 46] Whether [¶ entry. analysis two-step our three-step cuit’s analy- analysis, steps the first two of either Despite concluding keys to this are similar hold the sis illegal, suppress the court to declined step third case. The the First Circuit’s seized in be- the evidence the the analysis important an reminder of is discovery applied cause it the inevitable protec- the significance of constitutional By exception exclusionary to the rule. and the with which tions at issue caution this, the court it did doing erred because must be discovery the inevitable doctrine heavy the bur- impose upon the applied. justi- requires that our to den Constitution I concur with the Chief Justice illegal 47] fy [¶ an otherwise seizure of evidence. supports the record the trial court’s Circuit, origi- The First in a case of the finding regarding first element Lewiston, nating three-step outlined discovery The infor- inevitable doctrine. analytical framework for examination supporting mation the issuance claims, discovery prose- inevitable with warrant, independent of the information bearing the on each proof cution burden of entry, from the warrantless dem- derived point: jus- to onstratеs sufficient discovery evaluating In inevitable issuing analysis, a warrant. In tify this claims, first, questions: we ask three delay that the five-hour issu- is notable legal whether means which the warrant demonstrates that ing evidence would have been discovered deliberately carefully and District Court second, truly independent; whether That request. the warrant considered legal the use of the would have means sug- and deliberate consideration careful inevitably discovery led to gests that the District viewed Court evidence; third, applying whether close, and to question as that its decision discovery the inevitable rule ei- would influ- may issue the warrant have been provide ther mis- incentive by the from the enced information derived conduct or constitu- significantly weaken apartment. search of the warrantless protections. tional However, respecting our deferential stan- Almeida, States v. 434 F.3d review, United support there dard of is sufficient (1st Cir.2006); see States v. also United Superior finding Court’s for the Cir.2004). Pardue, (1st 385 F.3d sup- necessary element “independence” has discovery inevitable doctrine port the We have indicated that evidence [¶45] demonstrated. been may pursuant admitted inevitable to the evidence, is discovery prosecution doctrine if There insufficient first, however, support element two criteria: the information the second proves legal means would application in the for the search “use discovery of the evi independent illegally inevitably obtained led Storer, Almeida, 28; provide must be F.3d sufficient dence.” Nix, 467 issuance of A.2d at 1019-20. Pursuant support cause to and, 444, 104 prosecution warrant, second, independent inevitable led to the elements of the inevitably prove must information would have discovery preponderance lawful doctrine through оf the evidence application the evidence. Applying preponderance argued “high of the level of the evidence standard to inevitable dis of confidence” standard was inappropriate cases, however, covery requires higher a a involving proof inevitability case of quality standard of of evidence. This de relating discovery probable of cause to conceptual difficulty rives from the of separate opin- arrest. Id. at 63-64. The inevitability proving probability.11 to a higher ion asserted standard of Thus, Nix, recognizing while the Second appropriately is “more limited to government Circuit has held that “the can those cases in which the police have en- prevail discovery under the inevitable gaged in a of property warrantless search merely by establishing doctrine that it is unsupported by any otherwise exception to disputed more than not that the requirement.” the warrant Id. at 63. evidence would have been obtained without Judge emphasized Cabranes Heath, the constitutional violation.” importance application higher of of the (citing F.3d 58-59 & n. 6 United States closely of evidence to limit standard incen- (2nd Cabassa, v. 62 F.3d 472-73 Cir. tives enter homes without a warrant. 1995)). Similarly, the First re Circuit quires that inevitability must be demon I do not doubt Cabassa and its high degree probability.” strated “to a of progeny set forth a approach reasonable Almeida, 29; 434 F.3d at United States for those circumstances which (1st Cir.1996). Rogers, 102 F.3d police have into a home entered without application

[¶ Heath involved Indeed, 49] prior a warrant. cases have discovery proba- inevitable doctrine when indicated that courts view warrantless ble support arrest was discov- property suspicion searches with ered seconds or minutes after an arrest require showing thus a that the without cause. 455 F.3d at 53-54. tangible steps had taken to ensure that suppressed The District Court had evi- they inevitably would have obtained a dence, ‍​‌​‌‌​‌​‌​​​‌‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​​‌​‌‌‌‌‌‌​‌​‌‌​‌‍presented and the case was on the from a neutral and detached government’s interlocutory appeal. Id. at magistrate.

54-55. In a divided opinion, the Second M12 findings Circuit remanded for on the inev- Cabassa, case, itability concurring issue. Id. at 62. A like the instant dissenting opinion by Judge entry Cabranes volved a warrantless to a home and fashion, conceptual difficulty applying timely hardly 11. The of not have in a a issued evidence, preponderance showing inevitability. or “more like- present Given the ly proof inevitability, facts, than not” standard to probe we need not further into the has been addressed as follows: puzzle semantic other than to note the dif- proving by preponder- ference between a are, course, problems There semantic something happened ance that would have using preponderance of the evidence proving by preponderance that some- prove inevitability. say standard to To thing inevitably happened. have would probably more than not event “X” would Cabassa, United States v. 62 F.3d say only have occurred is to that there is a (2nd Cir.1995). + chance that "X” would oc- 50% Clearly, the curred. doctrine of inevitable support point higher 12. To his stan- discovery requires something more where apply, only but dard evidence should upon expected is based Otherwise, inevitability questions arising from warrant- issuance of a warrant. it would homes, entry Judge less Cabranes cited a illegally being result in seized evidence re- opinions applying higher ceived there number of other when chance that 49% warrant would not have issued or would standard to warrantless cases:

289 later when the warrant seizure of evidence while other officers five hours a seeking, but had not obtained war- were obtained. at 472. the draft Although rant. 62 F.3d recognized trial that court demon- supporting affidavit the warrant inevita- obligation prove to was the State’s cause, court, applying the probable strated the the than conclusion bly. Other evidence, standard deter- higher the of inevitable, discovery of the contraband there was room for dis- mined that “some however, findings and the court made no “a agreement” possibility” residual inev- proof regarding offered no the State magistrate would have declined the that it was itability. Despite evidence Ac- the at 473-74. issue warrant.13 Id. necessary premises to secure the before Dis- cordingly, the court overturned issued, the warrant both the State finding discovery of trict Court’s inevitable presumed to have that once court seem inadmissible. and declared evidence they apartment, arrived their Rabons at 474.

Id. remained and the contraband would have quality supporting of [¶ 52] had apartment until the authorities inevitability legal discovery of the evi- facts their warrant. Even the obtained at the nei- dence Rabons’ home satisfies support the trial found court do “high ther the Second level of Circuit’s presumption. such a test, nor confidence” the First Circuit’s that, shortly The trial court found Instead, “high degree probability” test. noon, officers, five Rumford some before presents logical the State’s evidence a wearing protec- at least uniform and one consistency. If it was to send essential vest, resi- appeared tive “at the [Rabons’] prevent five officers to disappearance premises dence” in order “secure the the Rabоns or the contraband before obtained, issuance It is pending warrant could be then it cannot of a warrant.” heavy speculate be inevitable that the the con- a stretch to that this quite Rabons and have traband would been at the would not have been ob- police presence require showings investigation simply Courts these detailed in order means involved, contingencies” "each of the suspect’s see obtain evidence violation of a Lavan, F.Supp.2d v.] States 10 [United [377,] rights, need to deter is constitutional (S.D.N.Y.1998) ], precisely be [ requires paramount application of the they encourage do not wish to offi rule.”); exclusionary v. United States cf. “nullifly]” to "obviate” or Fourth cers (2d Cir.1992) (not- Eng, 971 F.2d requirement Amendment’s warrant bald "special required ing that is care ly asserting they inevitably would govern- part of a district when the court probable had cause needed to obtain power” light subpoena relies on the ment See, e.g., Mejia, warrant. v. United States prevent dis- of "the need to the inevitable (9th Cir.1995) ("|T]o 69 F.3d ex covery exception swallowing ex- from merely the failure to cuse obtain a warrant rule”). clusionary because the officers cause and had Heath, (2nd v. F.3d United States could have obtained a warrant would com Cir.2006). pletely requirement.”); obviate Brown, United States 64 F.3d because, Cabassa, 13. No warrant issued in ("To (7th Cir.1995) say a warrant is illegal entry, agents told the DEA after say required for a search is to cooperate a war- Cabassa that he should get judicial approval must before act issue, obtaining thereby about to rant was ing. dis Yet if cause means that and subse- Cabassa’s consent a search inevitable, covery prior approval then the pro- halting preparation quently the warrant nullified.”); requirement has United been 62 F.3d at 472. cess. (5th Cherry, States v. 759 F.2d Cir.1985) ("When forego legal served at some time prove inevitability over the next five burden to hours, Rabons, by legal and that the observing the means.

police presence, might not have taken SAUFLEY, C.J., with whom some steps separate to from themselves CLIFFORD, J., joins, dissenting.

the contraband or premises. from the Even police pres- without the observed I respectfully [¶ 57] must dissent. The ence, stretch, it is also a inconsistent with opinion today, concluding Court’s “high degree of probability” standard probable cause for a search cannot be evidence, speculate to that the Rabons provided solely based on information contraband, and the having arrived at the through a confidential informant without A.M., more,” “something sometime after 7:30 operates to restrict the “inevitably” ability stop would illegal have remained there State’s the flow of Maine, drugs until into the goes sometime after 5:00 P.M. beyond necessary the measures protect rely “Fact-finders [¶ 55] must on evi citizens from unreasonable searches and dence, speculation, in fact-finding, and seizures. we must vacate decisions where fact-find clear-eyed Let us be about the evidence.” Han ing unsupported by was alleged crimes here. impor- The criminal Prot., num v. Bd. Envtl. 2003 ME Maine, tation of drugs into the State of ¶ 15 n. party 832 A.2d aWhen subsequent drugs, and the sale of those proof by has the burden of preponder likely are activities that are not to be evidence, ance of the possibility” the “mere way undertaken such a that the actual might proved that a fact enough, be is not crime will be observed law enforcement and “when the pure matter remains one of or purchase others not involved in the speculation conjecture, or or even if the drugs. Similarly, sale of those involvеd balanced, probabilities evenly are a defen drug likely trade are not to share Merriam judgment.” dant is entitled to a drug activity information on with law en- ¶ Wanger, 159, 8, 2000 ME 757 A.2d forcement when such cooperation does not Shaw, Crowe v. (quoting 780-81 somehow benefit them. The should ¶ 512). rely be able to informa- corroborated provided by The court’s tion conclusion of inevita- informants who are close bility dealers, legal discovery drug of the to aid this evidence the State’s efforts to interdict the speculation, unsupported by any trade. evi- Basically, dence in the record. the court is A. Probable Cause

bootstrapping the fact that the contraband upon illegal entry discovered I agree [¶ 59] Because with the Court that, illegal entry, noon to infer but for the probable required apply cause is the contraband would remained any legal presented theories apartment, inevitably, after 5:00 P.M. support State in of the admission of the imposed by The strictures our Constitution issue, begin evidence at I where the Court to protect persons and their homes from analysis has ended: with the illegal easily Also, searches cannot be so avoid- cause. because we do not need to ed. The contraband in this case was ob- reach the motion court’s determination tained in a search based on a created the officers’ into the Rabons’ exigency that the trial court found was an premises illegal, home to “secure” the illegal paragraphs search. The State failed to meet its I assume that the in the affida- (1969), by requiring 21 L.Ed.2d 637 from that provide vit that facts derived Thus, I activi- illegal must be stricken.14 criminal regarding search that information affidavit in the the review of the approach by a confidential informant ty provided has, way that with the samе Court by independent supported offending paragraphs redacted. activity, perhaps, detailed criminal activi- the informant’s own analy- formation about The Court’s follows. A confi- sis can be summarized as ties. in provided dential informant Court, citing Illinois properly [¶ 62] substantial in-

the Town of Rumford with 2317, Gates, 213, 76 462 U.S. 103 S.Ct. v. personal the Rabons’ regarding formation (1983); 2006 Wright, State v. L.Ed.2d 527 importation in the and subse- involvement ¶ 703, 705; 13, 8, and v. ME A.2d 890 in large quantities of cocaine quent sale of 77, ¶ 20, 50, A.2d Higgins, 2002 ME 796 corrob- Maine. Law enforcement officials 56, standards recognizes appropriate objective every aspect almost of the orated support in evaluating an affidavit given to them the infor- information cause for a warrant. The Court mant to the Rabons’ fives and ac- related However, enforce- tivities. because the law that the informant be acknowledges also ment officials did not detail the source information that provided fore us detailed information, the confidential informant’s and that police, corroborated present independent information Supreme Court the seminal United States formant, or recount a direct observation of Gates, informants, involved an case on sale of transportation, packaging, and through which the anonymous tip, written cocaine, that the Court has concluded travel to and stark facts of the defendant’s support the affidavit in of the search war- sufficient to corroborate from Florida was support rant could not information. the informant’s other Accordingly, all of the evi- determination. Nonetheless, declares Court residence dur- dence found the Rabons’ lacking. It affidavit before us is warrant, ing including the execution of the affidavit cocaine, scales, by parsing through so guns, does paraphernaliа, money, evi- areas where more indicating and must now be excluded as and those against them. dence It would have been desirable. about the infor- requires more information my opinion It is that the Court mant, informant in Gates though even has, effect, long returned since anonymous. It declares completely rejected required in approach formulaic Florida was the Rabons’ return from Texas, 108, Aguilar v. 378 U.S. 84 S.Ct. and ultimate- “contextually suspicious,” (1964), not 1509, Spinelli 12 L.Ed.2d 723 investiga- States, 410, although ly determines 393 U.S. 89 S.Ct. United CO, OFFI- analy- LAW ENFORCEMENT MAINE 14. Because we have not undertaken (2003-2005 ed.). The regarding CER’S MANUAL8-19 conclusion sis of motion court's States, Segura v. United interprets legality to secure the MANUAL the residence, of the officers’ 796, 3380, 82 L.Ed.2d 599 104 S.Ct. nothing be under- herein should McArthur, note, however, (1984), 531 U.S. Illinois v. opine on that issue. I stood to (2001), 946, 148 L.Ed.2d 838 may 121 S.Ct. actions have been in officers’ securing premises in an internal LAW to allow on the MAINE ENFORCE- reliance MANUAL, circum- anticipation a warrant in the same which infers MENT OFFICER’S warrant, justified. officers, perimeter stakeout anticipation are stances when of a We do not address at 8-19. justified securing the in- FERDICO a residence from present case. legality in the of these methods JOHN N. FERDI- side and from the outside. promising, “something tion was more” was information on the confidential informant’s knowledge needed. basis of or evidence of criminal activity independent provided by of that doing, effectively In so Court Instead, in the confidential informant. our “totality abandons the circum reviews, encourage we should motion “positive stances” test and reading” re rely practical courts to on “factual quirement adopted, we have based on everyday considerations life which opinions Supreme of the United States prudent rely], [persons reasonable and ¶13, 8, ME Wright, Court. See legal Id. at 103 S.Ct. [technicalities].” 705; Knоwlton, A.2d at State v. States, (quoting Brinegar v. United (Me.1985) (adopting 531-33 the Su 338 U.S. 69 S.Ct. 93 L.Ed. preme holding requir Court’s Gates (1949)); Dignoti, see also State v. affidavits); ing positive reading of see (Me.1996). A.2d Upton, also Massachusetts v. 466 U.S. 733, (1984) 104 S.Ct. 80 L.Ed.2d 721 Supreme opinions The Court’s [¶ 66] curiam) (per (rejecting “grudging” or White, Alabama v. 496 110 U.S. S.Ct. warrants); “negative” readings of search (1990), 2412, 110 L.Ed.2d 301 and Gates Gates, 230-32, 462 at 103 U.S. S.Ct. 2317 demonstrate that an informant’s informa- (adopting totality of the circumstances sufficiently tion can be corroborated to test). place, In its the Court substitutes justify a or search stop when infor- requirement any inflexible affidavit may mant identifies vehicle be in support of a warrant that relies on a crime, may used a those who use the confidential informant must contain either vehicle, itinerary and the future of the regarding detailed information the infor White, 331-32, vehicle. See 496 U.S. at personal mant’s involvement with the sub Gates, 2412; 244-45, 110 462 at S.Ct. U.S. ject of investigation or evidence of support 103 S.Ct. 2317. White Gates activity independent sup criminal of that a motion court’s inference that if an infor- plied by the informant. confidential Nei right mant to some shown about Supreme ther we nor the United States vehicle, things identity, timing, such as “ or rigid hyper-tech Court demand such travel, route of the informant ‘is more ” in support nical review of an affidavit facts,’ probably right about other includ- Gates, probable cause. 462 at See U.S. ing participants the claim that the in the 232-35, 103 S.Ct. 2317. trip engaged activity. are in criminal Gates, acknowledged, As the Court has at

[¶ 65] U.S. body (quoting Spinelli, ‍​‌​‌‌​‌​‌​​​‌‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​​‌​‌‌‌‌‌‌​‌​‌‌​‌‍there is a substantial of law directed 393 U.S. at 89 S.Ct. 584). question Beyond at the of the of an in- reasonableness corroboration facts, upon searches are based formant’s the United States Su- by that a war- provided preme require confidential informants. We Court does not begin analysis applica- independent оur with the rant affidavit include should “hy- activity than the in- tion of common sense rather of criminal or evidence on per-technical parsing” personal support of a document char- formant’s activities to lawyer’s judge’s training finding acteristic of a cause. Nor should we. ¶ 231, 235-36, 60, 9, King, experience. See id. See State v. (stating that we are bound 103 S.Ct. 2317. The United States Su- A.2d preme by principles has made it clear that we enunciated the United Court rules, in matters of feder- Supreme should avoid hard and fast such as States Court law). apparent requiring this Court’s new rule al constitutional that, at the time ly. of a search warrant CD further indicated purpose by the Rum- prove of criminal Rabón had been summonsed is not existence police, possession ford he was in actual activity, but rather to ensure that the rea Because Rabón large quantity of cocaine. requirements of the sonableness Fourth time, cocaine was not searched at the this Amendment are effectuated. U.S. CONST, was not discovered. IV; amend. see Illinois v. Mc Arthur, 121 S.Ct. eventually gave police CD (2001). my opinion, 148 L.Ed.2d In trip latest formation about Rabons’ the affidavit at issue contains more than Florida, that the police and the confirmed provide probable sufficient information to van, regularly in previously Rabons’ seen thereby cause to issue the warrant and to told driveway, gone. their was now CD assure the reasonableness search. police day that the Rabons would way, Put another is difficult to deter arrive back in Maine "with the cocaine. information, following prop mine how the alerted other law enforcement erly catalogued presented magis to a and confirmed the arrival of Rabons trate, would make a search of the Rabons’ residence, pre- back their Rumford rеsidence unreasonable. very dicted CD. On the date Maine, Rabons returned repetition, At the risk of I sum- home, sought a warrant to search the marize the affidavit. The confidential in- thereby the home im- proposing to search formant, Drug referred the Maine mediately arrival when it upon the Rabons’ Agency Enforcement cooperating as a de- that likely was most the cocaine would still fendant, CD, police was known to the be at their house. non-drug was on bail from a related crime.

CD contacted the Rumford Police with Any magistrate receiving the in- [¶ 71] information the drug-running about activi- required ap- formation above would be wife, ties of “Chuck” Rabón and his Shar- by ply the standards articulated the Unit- live, on. He told them where the Rabons Supreme ed States Court to determine that Chuck drives to Florida three four a fair that probability whether “there is year pick up approximately times a two of a crime” would contraband or evidence cocaine, kilograms of and that he returns at residence on the be found the Rabons’ ¶ 8, with the cocaine to Rumford for distribu- question. Wright, 2006ME date gave police specific tion. CD informa- (quoting Higgins, A.2d at ¶ tion about where 56); Chuck works indicat- Dignoti, at ME see ed that the cocaine distributed at those 682 A.2d at 670.

places police of business. The corroborat- reviewing A the affida- magistrate [¶ 72] provided by ed the residential information demonstrating vit would have information CD. The also confirmed CD’s infor- indepen- that the authorities were able to regarding mation local law enforcement’s given to dently confirm much of what was belief that sales occurring were by them the confidential informant. This places Chuck Rabon’s of business. regarded information the Rabons’ identi- activities, including demonstrated their real

[¶ 69] CD substantial ties names, residence, vehicle, knowledge their their their Charles Rabon’s activities travels, they when that and were not reported recently he Rabón had and when were been also related to police present. summonsed the Rumford The information trafficking for an cocaine was places excessive noise violation. This where occurring regular “on a ba- independent- formation was also confirmed known to be to Supreme This information sufficient Court held that sis.” was because, informant’s the confidential bona although establish for the warrant existed extent, detail, and corroborated single piece of evidence conclu- “[n]o [was] fides. of the CD provided nature sive[,] together pieces neatly ... fit conclude person would lead a reasonable and, viewed, Magis- supported] so a that probability” that there was “fair trate’s determination.” Id.

cocaine would be found in the Rabons’ 2085. S.Ct. home on the date of search. now, have never Until we held analysis, resulting The Court’s on informa- stops searches based conclusion, similarity to opposite bears informant, by a provided tion confidential of an analysis affidavit addressed the credibili- when officers confirmed Supreme Up- the United States Court ty corroborating of that informant with In a for the Upton, ton. search warrant information, justified unless the cannot be home on suspect’s motor was issued based present “something also more.” authorities that the motor informant’s statements Supreme Nor has the United States Court full of goods, home was stolen required “something ever more” suspect intended to move the motor home information. I search based such recently because the had raided the would affirm motion court’s conclusion goods hotel room of the stolen suspeсt’s affidavit, redacted, once would had supplier, informant seen upon have issued sufficient cause. and that goods, stolen the informant “to suspect’s ex-girlfriend and wanted Discovery B. Inevitable 729, 104 burn him.” 466 U.S. at Because I conclude that would suspect give able to affidavit, redacted, provided sufficient goods description stolen probable cause for the issuance of war- burglaries, matched items taken in recent rant, I on to the motion “specifical- go informant address court’s although the did in ly goods] that she saw the determination that the evidence would state [the 731, 733, home.” Id. at 104 S.Ct. “inevitably motor have been discovered.” only in the 2085. The corroborated facts court, having The motion declared [¶ 76] the warrant affidavit were the location of original entry the officers’ into the Rabons’ home, knowledge the of motor informant’s illegal, the search as a war- home treated raid, of knowledge and the informant’s search. It moved on to rantless therefore suspect girlfriend. and his the name exception to the war- any consider whether 731, holding In Id. at 104 S.Ct. 2085. The requirement rant existed. motion violated Fourth Amend- the warrant ultimately court determined that the inev- ment, of Mas- Supreme Judicial Court discovery a exception provided itable basis reasoned that each corroborat- sachusetts search. for a lawful innocent, affidavit ed fact in the related to discovery exception The inevitable conduct, to a nonsuspicious or was related exclusionary allows the use to the rule 731-32, public Id. at 104 event. S.Ct. that has obtained as result been own analysis, In its the United Fourth Amendment of a violation that the Mas- Supreme States Court noted “inevitably that evidence would have when judging court had sachusetts “insisted isolation,” means.” Nix v. been discovered lawful pieces of information bits Williams, affidavit in its considering rather than (1984); 2501, L.Ed.2d 377 see State v. entirety. Id. at 104 S.Ct. 2085. (Me.1990). Storer, application of the inevitable A.2d 1019-20 result of the is admitted to the inev- pursuant prose- Evidence to that “the discovery rule is ensure (1) discovery only rule if: the evi- itable simply in a put position cution is not worse gained be dence could also from informa- error or police because of some earlier truly illegally that is independent tion Id. 104 S.Ct. 2501. misconduct.” information, (2) obtained the evidence recently the inevitable applied We inevitably would have discovered been discovery doctrine in a situation where Storer, means. A.2d such lawful See body was recovered as a result victim’s at 1019-20.15 interrogation presumed that we a custodial discovery exception inevitable illegal purposes for of the inevitable to be to developed logical counterpart has Yves, discovery analysis.16 v. See State St. doctrine, poisonous “fruit of the tree” ¶97, 17, 1022-23. suppress any reaches out to evi- which There, police lawfully indepen- had illegal as a dence obtained result of earlier dently gathered following information part action on the enforcement. law (1) any alleged misconduct: prior Nix, 467 U.S. 104 S.Ct. 2501. Be- recently given wife had birth defendant’s primary purposes cause one of (2) infant; had at- the defendant rule, judicially-created and its exclusionary himself, tempted stamps obtain food through extension of evi- suppression infant, but the daughter, and his other gained illegal- dence as the “fruit” of other seen, nowhere and the infant was to be evidence, ly obtained has been to deter and un- appeared defendant confused misconduct, exceptions appli- (3) daughter appeared thе elder kempt; the exclusionary cation of rule have been lawfully en- uncared for when the recognized separate, instances where to arrest the tered the defendant’s trailer legitimate investigatory inevi- tools would wife; (4) a caseworker had tably up have turned at issue. defendant’s the evidence 442-43, Id. at The end on a attempted parents S.Ct. 2501. to contact aspect discovery sought 15. A third of the inevitable whether the evidence would inevita- hand, exception bly the other has been First Cir- be discovered.... On identified cuit, an officer is that the evidence I when aware which conclude is embedded in the discovered, inevitably try will he will two Storer first elements. See United States Silvestri, engaging any questionable prac- Cir.1986). avoid (1st 787 F.2d situation, little to In that there will be tice. aspect applica- That addresses whether the taking gain any dubious shortcuts to from any inevitable tion of the rule Significant disincen- obtain the evidence. particular en- case before the court would obtaining illegally tives to evidence courage police pro- the —in- misconduct or reduce cluding departmental dis- possibility the tections offered the Fourth Amendment. liability the cipline civil lessen and —also Although explicitly Id. in Silvestri court or inevitable likelihood ultimate impact expressed concern about the of the in- discovery exception promote police will discovery police rule mis- evitable on further misconduct. conduct, analysis ques- its it focused "on the Williams, 445-46, 431, Nix v. U.S. independence inevitability.” tions of and Id. 2501, (1984) (quotation 81 L.Ed.2d 377 S.Ct. Therefore, by very application, at 746. its omitted). marks two-part independence inevitability and anal- police ysis will not assures that misconduct case, independently we In that did not Supreme be furthered. As the Unitеd States legality interrogation be- review the Court has observed: police would cause we determined that the body. op- inevitably State police A faced with the found the victim’s officer who is have ¶ Yves, portunity illegally will 751 A.2d to obtain evidence v. St. ever, rarely, position to calculate 1022-23. if in a number of occasions at their trailer and In contrast to the search conduct- [¶ 81] Yves, in inside, ed St. here the evi- challenged had heard a though child no adult dence (5) through illegal was not obtained door; police answered the when the interrogation, and the State did obtain a wife, arrived to arrest the defendant’s warrant premises. to search the The war- refuse, dog trailer was cold and filled with rant, however, was tainted the inclusion feces, (6) urine; the defendant of evidence initial gained through pre- provided conflicting explana- and his wife sumed-illegal entry into the Rabons’ resi- police tions to the as to the whereabouts Thus, analysis dence. is similar to the infant and refused to tell them where Yves, in used St. but turns on whether ¶ 19, the infant could be located. Id. the warrant would have issued without the A.2d at 1023. offending paragraphs.17 Taking this information into ac- above, As I con- discussed would count, body we held that the victim’s would properly clude that would because, inevitably have discovered if been have even if the had not issued officers had not discovered the victim’s home, gone first to the if Rabons’ even body interrogation, as a result of the they paragraphs cataloguing the affidavit would have checked the defendant’s wife’s the evidence found in that initial had story and found that the victim was not not been added to the affidavit. ¶¶ 20-22, grandparents. with her Id. Thus, remaining question pre- A.2d at 1023-24. We therefore concluded sented whether the evidence would inev- that, even without the information ob- itably have been discovered when the war- defendant, by interrogating tained issued, rant was several hours after the police would been able establish secured, pre- Rabons’ home was which we probable cause for a warrant to search the illegal sume was an act. and, seeking defendant’s trailer after evidence, hearing After [¶ 84]. warrant, obtaining inevitably would have motion court found that the evidence body. discovered the victim’s Id. We con- inevitably would have been discovered af- “ cluded, ‘fairness can be plac- assured ter the search warrant In was obtained. ing the and the accused the same conclusion, reaching this the court heard

positions they have been in would had the it, presented evidence before heard the impermissible conduct not taken place,’ sides, arguments for both and reviewed and, therefore, the court did not err documentary presented. determining that the inevitable reasonably court could have concluded suppres- doctrine saved the evidence from that, in the action absence the officers’ ¶ (citation sion.” Id. residence, in entering the Rabons’ the evi- omitted) Nix, (quoting inevitably dence would have remained at 2501). the residence until the search warrant was have, fact, 17. When the obtained a 257. If the warrant is determined to be warrant, infirm, challenges to the will ordi- search legally usually the will search be treat narily alleged infirmity be made in terms of ed as warrantless and the evidence will be See, Delaware, e.g., the warrant. Franks v. suppressed exception unless there is an to the 154, 155-56, 2674, 438 98 57 See, requirement. e.g., warrant United States 13, (1978); Wright, L.Ed.2d 667 2006 ME Finucan, (1st v. 708 F.2d 841-43 Cir. ¶¶ 6-7, 705; Dickinson, A.2d at v. State 1983); Storer, v. 583 A.2d 1018-20 State ¶ 100, 10, 651, 655-56; 2005 ME 881 A.2d (Me.1990). Lehman, 124, 1,¶ v. 736 A.2d legal sources. illegal through This con- both late in the afternoon. obtainеd majority Storer, at 1019. As the infer- based on reasonable clusion could be had today, magistrate if the acknowledges court, including the fact ences the the warrant cause to issue had Rabons had traveled considerable the unlawfully-obtained allegedly and that without relatively in a short time distance information, excep- independent source time to or- they would have needed some the admission allowed tion would have the cocaine before ganize prepare and to conclude I would the evidence. Because resale. distributing have had suffi- magistrate would Moreover, the warrant was issued to issue a warrant cient approximately four-and-one- and executed affidavit, I in the would redacted facts entry. initial after the officers’ half hours independent source conclude that also Rabons’ not secured the Had admissibility in the exception results warrant, it is seeking prior home evidence. that, urgency on the very likely based I affirm the situation, Accordingly, would and the court [¶87] both the mo- denial of the Rabons’ Superior re Court’s upon would have acted Thus, suppress. the mo tion to quickly. much more quest unlikely infer that it was tion court could Rabons the cocaine would and/or gone apartment

have from the been subject discovery when

therefore not ultimately

the warrant was obtained. See F.2d Eng,

United States v. (2d Cir.1992) (stating proof of inevita ME 99 bility a “close temporal bolstered Kim et al. SMALL ... what was known relationship between prior gov had and what occurred allegedly and the in

ernment misconduct PARTNERS, LLC, et al. DURANGO ‍​‌​‌‌​‌​‌​​​‌‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​​‌​‌‌‌‌‌‌​‌​‌‌​‌‍evidence”); see evitable Nix, also 467 U.S. at 104 S.Ct. Court of Maine. Supreme Judicial that, (noting suspect’s absent the confes Briefs: March 2007. Submitted On sion, body discovered would been July Decided: hours); v. White within five United States (2d horn, F.2d Cir.

1987) inevitability excep (holding that the search de applied

tion initial delay

spite the six-hour between issuing of the search war

search and

rant). Independent Source

C. if The same results are obtained excep- source” apply “independent

we independent facts. The

tion to these the admission exception permits

source independently that was obtained

Case Details

Case Name: State v. Rabon

Court Name: Supreme Judicial Court of Maine

Date Published: Aug 14, 2007

Citation: 930 A.2d 268

Court Abbreviation: Me.