State of Maine v. Collins

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STATE OF MAINE KENNEBEC ss SUPERIOR COURT CRIMINAL ACTION DOCKET NO. CR-09-006 ( ,It \ 'I , V V \ - 1/'-" 'h v L-~I ',I J , -':.c'i 0 '/I , , /1" " / , . STATE OF MAINE ORDER ON DEFENDANT'S MOTION TO SUPPRESS v. KEVIN COLLINS, Defendant The defendant argues that the warrantless search of his vehicle and all evidence obtained should be suppressed. The findings of fact made at the conclusion of the hearing are incorporated into this order by reference. For the following reasons, the motion to suppress is denied. Conclusions of Law The defendant argues that there was no basis for the warrantless search of the defendant's vehicle because the officers had no significant concerns for their safety, the defendant was not able to re-enter his vehicle, and the officers had no reasonable belief that evidence connected to the crime for which the defendant was under arrest would be found in the vehicle. The officers agreed that they had no significant officer safety concerns and the defendant was not able to re-enter his vehicle. The officers did, however, have a reasonable belief that evidence connected to the marijuana cultivation charge could be found in the vehicle. Search Incident to Arrest In Arizona v. Cant, 129 S. Ct. 1710 (2009), the defendant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car. The officers then searched the defendant's car and found a gun and cocaine. Id. at 1714. The Court concluded that the search was unreasonable because there was no possibility that the defendant could have accessed his vehicle and there was no likelihood that the officers would discover offense-related evidence during the search. Id. at 1719. The Court held that officers are authorized "to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." Id. The Court also concluded, however, that a search incident to a lawful arrest would be justified when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Id. (quoting Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring in judgment)). In this case, the defendant was told he would be charged with marijuana cultivation. Prior to the search of the vehicle operated by the defendant, Agent Struck had received information that drug activity was suspected in the downstairs apartment, #1, at number 943 on Route 202 in Monmouth, where the defendant resided, and Agent Struck had obtained a search warrant for that address. Because the agents had begun their execution of the search warrant prior to the time of the search of the vehicle, Agents Struck, Richards, and Dubois knew that the defendant's apartment was being used entirely for a marijuana grow operation and had found, among other things, marijuana plants, a hydroponic grow operation, documents with the defendant's name on them, and loose marijuana. Agent Richards knew that the defendant had been involved in a drug-related case in Somerset County in the 1990s and was familiar with the defendant's methods of operation. The officers were reasonable in their belief that evidence connected to the marijuana grow operation might be found in the vehicle. See United States v. Smith, 510 F.3d 641,649 (6th Cir. 2007). 2 Search Warrant and Probable Cause to Search Probable cause to believe a vehicle contains evidence of criminal activity authorizes a search of any area of the vehicle in which the evidence might be found. United States v. Ross, 456 U.s. 798, 820-21 (1982); see also Smith, 510 F.3d at 647. In this case, the District Court Judge's determination of probable cause concerned vehicles "present at the above described premises at the time of the execution of the search warrant." (State's Ex. 1.) Although the defendant's vehicle slowed into the breakdown lane at the edge of the parking lot as if to enter the parking lot, the vehicle did not enter the parking lot of the apartment building. The vehicle was not subject to the probable cause determination in the search warrant. See United States v. Gereb, 547 F. Supp. 2d 658, 665-66 (W.D. Tex. 2008). The search of the vehicle also could not properly be conducted pursuant to the search warrant. See Smith, 510 F.3d at 647. The entry is The Defendant's Motion to Suppress is DENIED. Date: June 12, 2009 Nancy Mills Justice, Superior Court 3 STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. Docket No AUGSC-CR-2009-00006 vs KEVIN COLLINS 7 HILLCREST STREET AUGUSTA ME 04330 DOCKET RECORD DOB: 02/10/1960 Attorney: LISA WHITTIER LAW OFFICE OF LISA W D WHITTIER, ESQ 21 WESTERN AVENUE AUGUSTA ME 04330 APPOINTED 05/18/2009 State's Attorney: EVERT FOWLE Filing Document: CRIMINAL COMPLAINT Filing Date: 01/07/2009 Major Case Type: FELONY (CLASS A,B,C) Charge(s) 1 AGGRAVATED TRAFFICKING OF SCHEDULED DRUGS Seq 8558 17-A 1105-A(1) (B) (4) Class B 01/05/2009 MONMOUTH AGGRAVATED CULTIVATING OF MARIJUANA 2 Seq 9097 17-A 1105-D(1) (A) (3) Class C 01/05/2009 MONMOUTH 3 CRIMINAL FORFEITURE OF PROPERTY Seq 7049 15 5826 Class U 01/05/2009 MONMOUTH Charged with INDICTMENT on Supplem Docket Events: 01/07/2009 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 01/07/2009 01/13/2009 Charge(s): 1,2 HEARING - INITIAL APPEARANCE HELD ON 01/07/2009 Defendant Present in Court 01/13/2009 Charge(s): 1,2 HEARING - STATUS CONFERENCE SCHEDULED FOR 03/10/2009 @ 8:30 01/13/2009 Charge(s): 1,2 PLEA - NO ANSWER ENTERED BY DEFENDANT ON 01/07/2009 01/13/2009 BAIL BOND - $50,000.00 CASH BAIL BOND SET BY COURT ON 01/07/2009 OR 300,000 SURETY 01/13/2009 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 01/07/2009 01/13/2009 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 01/12/2009 JOSEPH M JABAR , JUSTICE COPY TO PARTIES/COUNSEL 01/13/2009 Party(s): KEVIN COLLINS ATTORNEY - APPOINTED ORDERED ON 01/12/2009 Page 1 of 6 Printed on: 06/15/2009 KEVIN COLLINS AUGSC-CR-2009-00006 DOCKET RECORD Attorney: JAMES FLICK 01/13/2009 Charge(s): 1/2 HEARING - STATUS CONFERENCE NOTICE SENT ON 01/13/2009 01/28/2009 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 01/28/2009 01/30/2009 MOTION - MOTION FOR RETURN OF PROPERTY FILED BY DEFENDANT ON 01/30/2009 01/30/2009 HEARING - MOTION FOR RETURN OF PROPERTY SCHEDULED FOR 03/05/2009 @ 8:30 NOTICE TO PARTIES/COUNSEL 01/30/2009 HEARING - MOTION FOR RETURN OF PROPERTY NOTICE SENT ON 01/30/2009 02/04/2009 Party (s) : KEVIN COLLINS ATTORNEY - RETAINED ENTERED ON 02/04/2009 Attorney: LISA WHITTIER 02/05/2009 Charge(s): 1/2,3 SUPPLEMENTAL FILING - INDICTMENT FILED ON 02/05/2009 02/05/2009 Charge(s): 1/2,3 HEARING - ARRAIGNMENT SCHEDULED FOR 02/17/2008 @ 8:30 JOHN NIVISON / JUSTICE 02/05/2009 Charge(s): 1,2,3 HEARING - ARRAIGNMENT NOTICE SENT ON 02/05/2009 02/05/2009 Charge(s): 1/2 HEARING - STATUS CONFERENCE NOT HELD ON 02/05/2009 02/06/2009 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 02/05/2009 NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL 02/13/2009 MOTION - MOTION TO AMEND BAIL FILED BY DEFENDANT ON 02/12/2009 02/13/2009 HEARING - MOTION TO AMEND BAIL SCHEDULED FOR 02/17/2009 @ 8:30 JOHN NIVISON, JUSTICE NOTICE TO PARTIES/COUNSEL 02/17/2009 Charge(s): 1,2,3 HEARING - ARRAIGNMENT HELD ON 02/17/2009 JOHN NIVISON, JUSTICE Attorney: LISA WHITTIER DA: ALAN KELLEY Defendant Present in Court READING WAIVED. DEFENDANT INFORMED OF CHARGES. COpy OF INDICTMENT/INFORMATION GIVEN TO DEFENDANT. 21 DAYS TO FILE MOTIONS 02/17/2009 Charge(s): 1,2/3 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 02/17/2009 02/17/2009 TRIAL - DOCKET CALL SCHEDULED FOR 04/07/2009 @ 2:45 02/17/2009 HEARING - MOTION TO AMEND BAIL HELD ON 02/17/2009 JOHN NIVISON, JUSTICE Page 2 of 6 Printed on: 06/15/2009 KEVIN COLLINS AUGSC-CR-2009-00006 DOCKET RECORD Attorney: LISA WHITTIER DA: ALAN KELLEY TAPE 1093, INDEX#4050 02/17/2009 MOTION - MOTION TO AMEND BAIL GRANTED ON 02/17/2009 JOHN NIVISON, JUSTICE COpy TO PARTIES/COUNSEL 02/17/2009 BAIL BOND - $10,000.00 CASH BAIL BOND SET BY COURT ON 02/17/2009 JOHN NIVISON, JUSTICE $10,000 CASH, 75,000 SURETY 02/24/2009 BAIL BOND - CASH BAIL BOND FILED ON 02/24/2009 02/24/2009 BAIL BOND - $10,000.00 CASH BAIL BOND FILED ON 02/24/2009 Bail Receipt Type: CR Bail Amt: $10,000 Date Bailed: 02/23/2009 Receipt Type: CK Prvdr Name: DONNA TAVERNIER Rtrn Name: DONNA TAVERNIER BAIL DISBURSEMENT ON 06/10/2009 Check No. 7785 Check Amount: 10,000.00 Paid To: DONNA TAVERNIER FORWARDED TO BAIL PROVIDER 03/05/2009 HEARING - MOTION FOR RETURN OF PROPERTY NOT HELD ON 03/05/2009 03/09/2009 Party(s) : KEVIN COLLINS ATTORNEY - WITHDRAWN ORDERED ON 03/09/2009 Attorney: JAMES FLICK 03/10/2009 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 03/09/2009 03/10/2009 MOTION - MOTION TO AMEND BAIL FILED BY DEFENDANT ON 03/09/2009 03/10/2009 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 03/09/2009 03/10/2009 MOTION - OTHER MOTION FILED BY DEFENDANT ON 03/09/2009 MOTION FOR BRADY MATERIAL 03/10/2009 MOTION - MOTION FOR RETURN OF PROPERTY FILED BY DEFENDANT ON 03/09/2009 03/10/2009 MOTION - MOTION FOR ENLARGEMENT OF TIME FILED BY DEFENDANT ON 03/09/2009 03/13/2009 MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 03/11/2009 JOSEPH M JABAR , JUSTICE COPY TO PARTIES/COUNSEL 03/13/2009 HEARING - MOTION TO AMEND BAIL SCHEDULED FOR 03/16/2009 @ 8:30 NOTICE TO PARTIES/COUNSEL 03/16/2009 HEARING - MOTION TO AMEND BAIL HELD ON 03/16/2009 JOSEPH M JABAR , JUSTICE 03/16/2009 MOTION - MOTION TO AMEND BAIL GRANTED ON 03/16/2009 JOSEPH M JABAR , JUSTICE Page 3 of 6 Printed on: 06/15/2009 KEVIN COLLINS AUGSC-CR-2009-00006 DOCKET RECORD COPY TO PARTIES/COUNSEL GRANTED IN PART, DEFENDANT'S CURFEW MAY BE EXTENDED FOR WORK PURPOSES WITH THE CONDITION THAT THE CONDITIONS OF EMPLOYMENT DOCUMENTED AND PROVIDED TO THE DA BEFORE EMPLOYMENT BEGINS 03/16/2009 BAIL BOND - CASH BAIL BOND AMENDED ON 03/16/2009 JOSEPH M JABAR , JUSTICE Date Bailed: 02/23/2009 BAIL DISBURSEMENT ON 06/10/2009 Check No. 7785 Check Amount: 10,000.00 Paid To: DONNA TAVERNIER FORWARDED TO BAIL PROVIDER 03/24/2009 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 03/23/2009 03/24/2009 MOTION - MOTION TO CONTINUE GRANTED ON 03/24/2009 NANCY MILLS , JUSTICE COpy TO PARTIES/COUNSEL 03/24/2009 TRIAL - DOCKET CALL CONTINUED ON 03/24/2009 NANCY MILLS , JUSTICE 03/27/2009 OTHER FILING - TRANSCRIPT FILED ON 03/25/2009 Reporter: JANETTE COOK MOTION TO AMEND BAIL 04/03/2009 MOTION - MOTION TO REVOKE BAIL FILED BY STATE ON 04/02/2009 04/03/2009 Charge(s): 1,2,3 HEARING INITIAL APPEARANCE HELD ON 04/03/2009 JOSEPH M JABAR , JUSTICE Defendant Present in Court 04/03/2009 BAIL BOND - NO BAIL ALLOWED SET BY COURT ON 04/03/2009 JOSEPH M JABAR , JUSTICE 04/03/2009 HEARING - MOTION TO REVOKE BAIL SCHEDULED FOR 06/10/2009 @ 8:30 05/04/2009 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 05/04/2009 05/04/2009 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 05/04/2009 05/04/2009 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 06/10/2009 @ 8:30 05/04/2009 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 06/10/2009 @ 8:30 05/15/2009 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 05/14/2009 05/19/2009 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 05/18/2009 NANCY MILLS , JUSTICE 05/19/2009 Party(s): KEVIN COLLINS ATTORNEY - APPOINTED ORDERED ON 05/18/2009 Attorney: 05/19/2009 HEARING - LISA WHITTIER MOTION FOR DISCOVERY NOTICE SENT ON 05/19/2009 05/19/2009 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 05/19/2009 05/19/2009 HEARING - MOTION TO REVOKE BAIL NOTICE SENT ON 05/19/2009 Page 4 of 6 Printed on: 06/15/2009 KEVIN COLLINS AUGSC-CR-2009-00006 DOCKET RECORD 06/01/2009 MOTION - MOTION FOR FUNDS FILED BY DEFENDANT ON 06/01/2009 06/04/2009 MOTION - MOTION FOR FUNDS GRANTED ON 06/01/2009 JOSEPH M JABAR , JUSTICE COPY TO PARTIES/COUNSEL 06/10/2009 BAIL BOND - CASH BAIL BOND DISBURSEMENT ON 06/10/2009 Date Bailed: 02/23/2009 BAIL DISBURSEMENT ON 06/10/2009 Check No. 7785 Check Amount: 10,000.00 Paid To: DONNA TAVERNIER FORWARDED TO BAIL PROVIDER 06/15/2009 HEARING - MOTION FOR DISCOVERY NOT HELD ON 06/10/2009 06/15/2009 MOTION - MOTION FOR DISCOVERY WITHDRAWN ON 06/10/2009 06/15/2009 HEARING - MOTION TO REVOKE BAIL HELD ON 06/10/2009 NANCY MILLS , JUSTICE Attorney: LISA WHITTIER DA: ALAN KELLEY Defendant Present in Court 06/15/2009 MOTION - MOTION TO REVOKE BAIL GRANTED ON 06/10/2009 NANCY MILLS , JUSTICE COpy TO PARTIES/COUNSEL PARTIES STIPULATE THERE IS PROBABLE CAUSE TO BELIEVE THE DEFENDANT COMMITTED NEW CRIMINAL CONDUCT. BY AGREEMENT, DEFENDANT TO BE HELD WITHOUT BAIL, BAIL REVOKED CASH BAIL TO BE RETURNED TO PERSON WHO POSTED CASH BAIL 06/15/2009 MOTION - MOTION FOR DISCOVERY WITHDRAWN ON 06/10/2009 06/15/2009 HEARING - MOTION TO SUPPRESS HELD ON 06/10/2009 NANCY MILLS , JUSTICE Attorney: LISA WHITTIER DA: ALAN KELLEY Defendant Present in Court ER, TAPE#1208, INDEX#1178-3507 06/15/2009 MOTION - MOTION TO SUPPRESS DENIED ON 06/12/2009 NANCY MILLS , JUSTICE 06/15/2009 HEARING - MOTION FOR RETURN OF PROPERTY SCHEDULED FOR 09/02/2009 @ 8:30 NOTICE TO PARTIES/COUNSEL 06/15/2009 HEARING - OTHER MOTION SCHEDULED FOR 09/02/2009 @ 8:30 MOTION FOR BRADY MATERIAL 06/15/2009 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 09/02/2009 @ 8:30 NOTICE TO PARTIES/COUNSEL MOTION TO SUPPRESS AND QUASH SUBSEQUENT SEARCH WARRANT 06/15/2009 ORDER - COURT ORDER FILED ON 06/12/2009 NANCY MILLS , JUSTICE ORDER ON DEFENDANT'S MOTION TO SUPPRESS. THE DEFENDANT ARGUES THAT THE WARRANTLESS SEARCH Page 5 of 6 Printed on: 06/15/2009 KEVIN COLLINS AUGSC-CR-2009-00006 DOCKET RECORD OF HIS VEHICLE AND ALL EVIDENCE OBTAINED SHOULD BE SUPPRESSED. THE FINDINGS OF FACT MADE AT THE CONCLUSION OF THE HEARING ARE INCORPORATED INTO THIS ORDER BY REFERENCE. FOR THE FOLLOWING REASONS, THE MOTION TO SUPPRESS IS DENIED. A TRUE COPY ATTEST: Clerk Page 6 of 6 Printed on: 06/15/2009

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