State of Maine v. Sullivan

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CRIMINAL ACTION DOCKET NO. CR-p.9-5£7 /'I IV) - hErJ- 11' 5 j:lD (1) STATE OF MAINE

v. ORDER ON DEFENDANT'S MOTION TO SUPPRESS MATTHEW SULLIVAN,

Defendant

The defendant moves to suppress evidence seized from room number 154 of the Holiday Inn in Augusta. The defendant argues that the affidavit of MDEA Agent Jonathan Richards does not provide a substantial basis for a finding of probable cause and the authorization of a no-knock entry was improper.

The defendant moves also to suppress statements made to law enforcement officers. He argues that he was not properly informed of his Miranda rights and the statements resulted from an invalid search.

The defendant further moves for the disclosure of the identities of concerned citizens numbers 2 and 3 referenced in the Richards affidavit.

For the following reasons, the motions to suppress are denied and the motion to disclose is denied. Findings

MDEA Agent Jonathan Richards was present on 7/7/09 when the no-knock search warrant was executed at room number 154 at the Holiday Inn. Andrew Mumbauer and the defendant were found in the room. They were searched, placed in handcuffs, and taken to the Augusta Police Station. Agent Richards informed the men *2 they were under arrest for drug trafficking. Cocaine, pills, scales, and a firearm were seized from the room.

The defendant was taken to a booking room at the station. The door was closed. Although he had "cycled up" at the hotel room, the defendant had calmed down at the station and was not in distress. Agent Richards introduced himself and Federal DEA Agent Christine l Tierney and Trooper Christopher Tupper. The defendant's name, date of birth, and address were obtained.

Agent Richards read the Miranda warnings to the defendant from a card. 2 After each statement, Agent Richards asked the defendant if he understood and the defendant replied each time that he understood. The defendant agreed to speak to the officers.

Agent Richards left the booking room and Trooper Tupper interviewed the defendant. The interview was not recorded in order to protect the defendant who was cooperative. Any audio or video recording would be available to other defendants through discovery.

The defendant stated he traveled to Maine a couple of times to deliver illegal drugs. He declined to identify the owner of the drugs because of his concerns for the safety of his family. He was aware drugs were being sold in the hotel parking lot. He agreed to be photographed.

The State stipulated at the hearing on the motions that concerned citizens numbers 2 and 3 have no knowledge about the defendant. I Her name may be Christina. *3 Conclusions

Search Warrant

The affidavit provides the officer's valid rationale for requesting a "no knock and night time warrant." See Affidavit at 20; M.R. Crim. P. 41(i). The affidavit contains sufficient facts to provide a substantial basis for a finding of probable cause. See State v. Crowley, 1998 ME 187, <JI 4, 714 A.2d 834, 836. Based on the totality of the circumstances and, given the circumstances set forth in the affidavit, there was a fair probability that contraband or evidence of a crime would be found in the hotel room. Id., <JI 3, 714 A.2d at 836.

Statements

The defendant was proper!y informed of the Miranda warnings, understood the warnings, and agreed to speak to the officers. His waiver of his rights was valid. State v. Coombs, 1998 ME 1, <JI15, 704 A.2d 387, 392. Because the warrant was valid, his statements are not the "fruit of the poisonous tree." State v. Boyington, 1998 ME 163, <JI 9, 714 A.2d 141, 143-44.

Concerned Citizens

"Where the disclosure of an informer's identity, or the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the [informer's] privilege must give way." Roviaro v. United States, 353 U.S. 53, 60-61 (1957). In this case, there is no showing that the concerned citizens are "able to give testimony relevant to any issue in this case." State v. Chase, 505 A.2d 791, 794 (Me. 1986). Disclosure of their identities is not required.

2 Agent Richards did not record in his report that he read the Miranda warnings. The reading of Miranda warnings was noted in Trooper Tupper's report.

The entry is

The Motions to Suppress Evidence Seized is DENIED.

The Motion to Suppress Statements is DENIED.

The Motion to Disclose is DENIED.

Date: January 15, 2010 Nancy Mills Justice, Superior Court

KENN CR-09-537

STATE OF MAINE SUPERIOR COURT vs KENNEBEC, ss. MATTHEW V SULLIVAN Docket No AUGSC-CR-2009-00537 26 STORY AVE LYNN MA DOCKET RECORD

DOB: 07/30/1987 Attorney: LEONARD SHARON State's Attorney: EVERT FOWLE LEONARD SHARON ESQ PC 223 MAIN STREET AUBURN ME 04210-5833 RETAINED 09/16/2009

Filing Document: CRIMINAL COMPLAINT Major Case Type: FELONY (CLASS A,B,C) Filing Date: 07/08/2009

Charge(s)

1 AGGRAVATED TRAFFICKING OF SCHEDULED DRUGS 07/07/2009 AUGUSTA Seq 9044 17-A 1105-A(1) (C-1) (1) Class A

2 AGGRAVATED TRAFFICKING OF SCHEDULED DRUGS 07/07/2009 AUGUSTA Seq 9044 17-A 1105-A(1) (C-1) (1) Class A Charged with INDICTMENT on Supplem

3 AGGRAVATED TRAFFICKING OF SCHEDULED DRUGS 07/07/2009 AUGUSTA Seq 9065 17-A 1105-A(1) (I) Class A Charged with INDICTMENT on Supplem

Docket Events: 07/08/2009 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 07/08/2009

07/10/2009 Charge(s): 1 HEARING - INITIAL APPEARANCE SCHEDULE OTHER COURT ON 07/08/2009

AUGDC 07/10/2009 Charge(s): 1 HEARING - INITIAL APPEARANCE HELD ON 07/08/2009 RI CHARD MULHERN, JUDGE Defendant Present in Court 07/10/2009 Charge(s): 1 HEARING - STATUS CONFERENCE SCHEDULED FOR 09/08/2009 @ 10:00

07/10/2009 Charge(s): 1 PLEA - NO ANSWER ENTERED BY DEFENDANT ON 07/08/2009

07/10/2009 BAIL BOND - $20,000.00 CASH BAIL BOND SET BY COURT ON 07/08/2009 RICHARD MULHERN, JUDGE NO USE OR POSSESSION OF ANY ALCOHOL, ILLEGAL DRUGS, DANGEROUS WEAPONS, FIREARMS, SUBMIT TO. SEARCH AND TESTING FOR ALCOHOL, ILLEGAL DRUGS, FIREARMS, DANGEROUS WEAPONS AT ANY TIME WITHOUT ARTICULABLESUSPICION OR PROBABLE CAUSE. NO CONTACT WITH KATHRYN BUSH, DANIEL GRENIER, ANDREW MUMBAUER, GORDON NEWTON, ASHLEY WILLIAMS, DANIEL SULLIVAN, REVIEW UPON APPEARANCE OF COUNSEL Page 1 of 6 Printed on: 01/15/2010

MATTHEW V SULLIVAN AUGSC-CR-2009-00537 DOCKET RECORD 07/20/2009 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 07/20/2009

07/23/2009 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 07/20/2009 NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL 07/23/2009 Party(s): MATTHEW V SULLIVAN ATTORNEY - APPOINTED ORDERED ON 07/20/2009

Attorney: DAVID CROOK 07/23/2009 Charge(s): 1 HEARING - STATUS CONFERENCE NOTICE SENT ON 08/19/2009

08/03/2009 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 08/03/2009

08/11/2009 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 08/04/2009 NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL 08/11/2009 Party(s): MATTHEW V SULLIVAN ATTORNEY - WITHDRAWN ORDERED ON 08/04/2009

Attorney: DAVID CROOK 08/19/2009 Party(s) : MATTHEW V SULLIVAN ATTORNEY - APPOINTED ORDERED ON 08/04/2009

Attorney: STEPHEN BOURGET 09/08/2009 Charge(s): 1 HEARING - STATUS CONFERENCE HELD ON 09/08/2009 DONALD H MARDEN , JUSTICE Attorney: STEPHEN BOURGET DA: BRAD GRANT Defendant Present in Court 09/08/2009 Charge(s): 1 HEARING - STATUS CONFERENCE SCHEDULED FOR 11/10/2009 @ 10:00

09/08/2009 Charge(s): 1 HEARING - STATUS CONFERENCE NOTICE SENT ON 09/08/2009

09/16/2009 Party(s) : MATTHEW V SULLIVAN ATTORNEY - APPOINTED ORDERED ON 09/16/2009

Attorney: LEONARD SHARON 09/16/2009 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 09/13/2009

09/17/2009 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 09/16/2009 NANCY MILLS , JUSTICE COpy TO PARTIES/COUNSEL 09/17/2009 Party(s): MATTHEW V SULLIVAN ATTORNEY - WITHDRAWN ORDERED ON 09/16/2009

Attorney: STEPHEN BOURGET 09/21/2009 Charge(s): 1 HEARING - STATUS CONFERENCE NOT HELD ON 09/21/2009

Page 2 of 6 Printed on: 01/15/2010

MATTHEW V SULLIVAN AUGSC-CR-2009-00537 DOCKET RECORD 09/21/2009 Charge(s): 1,2,3 SUPPLEMENTAL FILING - INDICTMENT FILED ON 09/18/2009

09/21/2009 Charge(s): 1,2,3 HEARING - ARRAIGNMENT SCHEDULED FOR 09/29/2009 @ 8:30

09/21/2009 Charge(s): 1,2,3 HEARING - ARRAIGNMENT NOTICE SENT ON 09/21/2009

09/23/2009 Party(s): MATTHEW V SULLIVAN ATTORNEY - RETAINED ENTERED ON 09/16/2009

Attorney: LEONARD SHARON 09/30/2009 Charge(s): 1,2,3 HEARING - ARRAIGNMENT HELD ON 09/29/2009 NANCY MILLS , JUSTICE Attorney: LEONARD SHARON DA: BRAD GRANT Reporter: TAMMY DROUIN READING WAIVED. DEFENDANT INFORMED OF CHARGES. COpy OF INDICTMENT/INFORMATION GIVEN TO DEFENDANT. 21 DAYS TO FILE MOTIONS 09/30/2009 Charge(s): 1,2,3 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 09/29/2009

09/30/2009 TRIAL - DOCKET CALL SCHEDULED FOR 12/09/2009 @ 8:30 10/21/2009 MOTION - MOTION DISCLOSE CONF INFORMANT FILED BY DEFENDANT ON 10/20/2009 10/21/2009 HEARING - MOTION DISCLOSE CONF INFORMANT SCHEDULED FOR 12/09/2009 @ 8:30 10/21/2009 HEARING - MOTION DISCLOSE CONF INFORMANT NOTICE SENT ON 10/21/2009

10/21/2009 Charge(s): 1,2,3 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 10/20/2009

10/21/2009 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 12/09/2009 @ 8:30

NOTICE TO PARTIES/COUNSEL 10/21/2009 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 10/21/2009

10/21/2009 Charge(s): 1,2,3 MOTION - MOTION TO SUPPRESS EVIDENCE FILED BY DEFENDANT ON 10/20/2009

10/21/2009 HEARING - MOTION TO SUPPRESS EVIDENCE SCHEDULED FOR 12/09/2009 @ 8:30

NOTICE TO PARTIES/COUNSEL 10/21/2009 HEARING - MOTION TO SUPPRESS EVIDENCE NOTICE SENT ON 10/21/2009

10/21/2009 Charge(s): 1,2,3 MOTION - MOTION TO SUPPRESS EVIDENCE FILED BY DEFENDANT ON 10/20/2009

10/21/2009 HEARING - MOTION TO SUPPRESS EVIDENCE SCHEDULED FOR 12/09/2009 @ 8:30

NOTICE TO PARTIES/COUNSEL Page 3 of 6 Printed on: 01/15/2010

MATTHEW V SULLIVAN AUGSC-CR-2009-00537 DOCKET RECORD 10/21/2009 HEARING - MOTION TO SUPPRESS EVIDENCE NOTICE SENT ON 10/21/2009

10/21/2009 Charge{s): 1/2/3 MOTION - OTHER MOTION FILED BY DEFENDANT ON 10/20/2009

MOTION FOR ACCESS TO EVIDENCE FOR INDEPENDENT TESTING. 10/21/2009 HEARING - OTHER MOTION SCHEDULED FOR 12/09/2009 @ 8:30

AUGSC 10/21/2009 HEARING - OTHER MOTION NOTICE SENT ON 10/21/2009

AUGSC 10/21/2009 MOTION - MOTION EXPERT WITNESS REPORT FILED BY DEFENDANT ON 10/20/2009

10/21/2009 HEARING - MOTION EXPERT WITNESS REPORT SCHEDULED FOR 12/09/2009 @ 8:30 10/21/2009 HEARING - MOTION EXPERT WITNESS REPORT NOTICE SENT ON 10/21/2009 12/09/2009 HEARING - MOTION EXPERT WITNESS REPORT CONTINUED ON 12/09/2009 12/09/2009 HEARING - MOTION EXPERT WITNESS REPORT SCHEDULED FOR 12/10/2009 @ 8:30 12/09/2009 HEARING - OTHER MOTION CONTINUED ON 12/09/2009

AUGSC 12/09/2009 HEARING - OTHER MOTION SCHEDULED FOR 12/10/2009 @ 8:30

MOTION TO PREPARE REPORT 12/09/2009 HEARING - MOTION TO SUPPRESS EVIDENCE CONTINUED ON 12/09/2009

12/09/2009 HEARING - MOTION TO SUPPRESS EVIDENCE SCHEDULED FOR 12/10/2009 @ 8: 30

NOTICE TO PARTIES/COUNSEL 12/09/2009 HEARING - MOTION TO SUPPRESS EVIDENCE CONTINUED ON 12/09/2009

12/09/2009 HEARING - MOTION TO SUPPRESS EVIDENCE SCHEDULED FOR 12/10/2009 @ 8:30

NOTICE TO PARTIES/COUNSEL 12/09/2009 HEARING - MOTION TO SUPPRESS CONTINUED ON 12/09/2009

12/09/2009 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 12/10/2009 @ 8:30

NOTICE TO PARTIES/COUNSEL 12/09/2009 HEARING - MOTION DISCLOSE CONF INFO~T CONTINUED ON 12/09/2009

12/09/2009 HEARING - MOTION DISCLOSE CONF INFO~T SCHEDULED FOR 12/10/2009 @ 8:30

12/09/2009 TRIAL - DOCKET CALL HELD ON 12/09/2009 NANCY MILLS / JUSTICE Reporter: TAMMY DROUIN Defendant Present in Court 12/17/2009 HEARING - MOTION EXPERT WITNESS REPORT HELD ON 12/10/2009 NANCY MILLS / JUSTICE Page 4 of 6 Printed on: 01/15/2010

MATTHEW V SULLIVAN AUGSC-CR-2009-00537 DOCKET RECORD Defendant Present in Court 12/17/2009 MOTION - MOTION EXPERT WITNESS REPORT GRANTED ON 12/10/2009 NANCY MILLS , JUSTICE 12/17/2009 Charge(s): 1,2,3 MOTION - OTHER MOTION GRANTED ON 12/10/2009 NANCY MILLS , JUSTICE MOTION FOR ACCESS TO EVIDENCE FOR INDEPENDENT TESTING. 12/17/2009 HEARING - OTHER MOTION HELD ON 12/10/2009 NANCY MILLS , JUSTICE MOTION TO PREPARE REPORT 12/17/2009 MOTION - MOTION DISCLOSE CONF INFO~T UNDER ADVISEMENT ON 12/10/2009 NANCY MILLS , JUSTICE 12/17/2009 HEARING - MOTION DISCLOSE CONF INFO~T HELD ON 12/10/2009 NANCY MILLS , JUSTICE 12/17/2009 HEARING - MOTION TO SUPPRESS HELD ON 12/10/2009 NANCY MILLS , JUSTICE Defendant Present in Court

ER, TAPE#1264, INDEX#1870-7209 12/17/2009 HEARING - MOTION TO SUPPRESS EVIDENCE HELD ON 12/10/2009 NANCY MILLS , JUSTICE Defendant Present in Court

ER, TAPE#1264, INDEX#1870-7209 12/17/2009 HEARING - MOTION TO SUPPRESS EVIDENCE HELD ON 12/10/2009 NANCY MILLS , JUSTICE Defendant Present in Court

ER, TAPE#1264, INDEX#1870-7209 12/17/2009 Charge(s): 1,2,3 MOTION - MOTION TO SUPPRESS EVIDENCE WITHDRAWN ON 12/10/2009

AS TO THE SECOND FLOOR OF THE HOLIDAY INN 12/17/2009 Charge(s): 1,2,3 MOTION - MOTION TO SUPPRESS EVIDENCE UNDER ADVISEMENT ON 12/10/2009 NANCY MILLS , JUSTICE AS TO THE FIRST FLOOR OF THE HOLIDAY INN 12/17/2009 Charge(s): 1,2,3 MOTION - MOTION TO SUPPRESS UNDER ADVISEMENT ON 12/10/2009

01/15/2010 Charge(s): 1,2,3 MOTION - MOTION TO SUPPRESS EVIDENCE DENIED ON 01/15/2010 NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL 01/15/2010 Charge(s): 1,2,3 MOTION - MOTION TO SUPPRESS DENIED ON 01/15/2010 NANCY MILLS , JUSTICE COpy TO PARTIES/COUNSEL 01/15/2010 MOTION - MOTION DISCLOSE CONF INFO~T DENIED ON 01/15/2010 NANCY MILLS , JUSTICE 01/15/2010 Charge(s): 1,2,3 TRIAL - DOCKET CALL SCHEDULED FOR 03/02/2010

Page 5 of 6 Printed on: 01/15/2010

MATTHEW V SULLIVAN AUGSC-CR-2009-00537 DOCKET RECORD

A TRUE COPY ATTEST: Clerk

Page 6 of 6 Printed on: 01/15/2010