State of Maine v. Gary Mariner , 2017 Me. LEXIS 104 ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 102 Docket: Cum-16-371
Argued: March 2, 2017
Decided: May 23, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
GARY MARINER
SAUFLEY, C.J.
[¶1] The State appeals from an order entered by the trial court
(Cumberland County, Wheeler, J.) suppressing evidence seized from Gary
Mariner, his vehicle, and his residence after the court determined that the
warrant that authorized the search and the seizure of that evidence was not
supported by probable cause. We conclude that the warrant affidavit provided
the necessary substantial basis for the warrant judge’s finding of probable
cause, and we vacate the suppression order.
I. BACKGROUND
[¶2] On October 1, 2015, Portland police applied for a warrant to search
Gary Mariner, his Lyman residence, and his 2010 Toyota Corolla for evidence
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related to an alleged sexual assault that occurred two weeks before. The
supporting affidavit alleged the following facts.
[¶3] On September 19, 2015, a woman reported to police that she had
been the victim of a sexual assault, perpetrated on the night of September 15,
2015. On that night, the victim was working as a prostitute on Congress Street
in Portland. Sometime between 10:30 and 11:00 p.m., a car she described as a
silver Toyota Corolla with a model year from 2002 to 2008 drove by her, and
the male driver yelled “something at her about anal sex.” Around forty-five
minutes later, the same vehicle, with the same driver, passed by again and
picked up the victim on Boynton Street.
[¶4] Once she was in the vehicle, the driver showed the victim a
camouflage wallet containing a gold star-shaped police badge with the State of
Maine seal and the words “Cape Elizabeth” and “Retired.” She described the
male as “older, maybe 60 years of age, bad skin, a mustache, grayish / light
colored eyes,” and “wearing a baseball cap, plaid flannel button up shirt and a
wedding ring.” The victim asked the driver whether she was under arrest and
he told her that she could “work it off.” When she responded that he should
“take [her] to jail, then,” the driver told her that he had been brought back from
retirement by the State Police and asked her to help him find other prostitutes.
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[¶5] He drove her to the parking lot across from the Concord Trailways
station and backed the car up to the fence near the rear of the lot, facing the
entrance. The victim saw an automatic handgun in the driver’s side door
pocket. The male “wanted to engage in anal sex with [the victim] and said he
didn’t get it at home.” The victim “talk[ed] him down” to oral sex. He placed
the gun on top of his lap, pointing in the direction of the front passenger-side
headlight. The male unfastened his belt, removed his penis, and the victim
performed oral sex on him. Before he let her out of the car on St. John Street,
he told her that it had been “against [his] better judgment” and that “in 25 years
[it] was the first time [he had] let anyone go.”
[¶6] On September 22, 2015, police spoke with an identified Concord
Trailways employee “who was able to locate video for this incident.” The
employee was able to determine the license plate number for the “suspect
vehicle.” Police determined that Mariner was a joint owner of the vehicle.
[¶7] The vehicle registration, indicating that the car was a tan-colored
2010 Toyota Corolla, was attached to the affidavit. Mariner’s motor vehicle
record was also attached, indicating that he was fifty-seven years old and
including his photograph. After obtaining the motor vehicle information, police
determined that although Mariner had taken a preliminary test toward
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becoming a police officer, there was no record of him having been a police
officer in Maine. Mariner’s father, however, was a retired Cape Elizabeth police
chief.
[¶8] A search warrant was issued by the court (Portland, Eggert, J.) on
October 1, 2015, authorizing police to search Mariner’s home, car, and person.
Police executed the warrant that same day and seized a Cape Elizabeth police
badge inscribed with the word “Retired” and a camouflage tri-fold wallet, along
with other items that the victim had described.
[¶9] On October 2, 2015, Gary Mariner was charged by complaint with
gross sexual assault (Class A), 17-A M.R.S. § 253(1)(A) (2016), and
impersonating a public servant (Class E), 17-A M.R.S. § 457(1) (2016). He was
later indicted for these crimes. Mariner filed a motion to suppress the evidence
obtained from the search, arguing that the search warrant was not supported
by probable cause. The court (Cumberland County, Wheeler, J.) found that there
was no probable cause to search Mariner or his home because there was no
information that Mariner was the operator of the vehicle or that the victim had
identified Mariner as her assailant. Accordingly, the court granted Mariner’s
motion to suppress the evidence obtained from Mariner and his home—but not
his vehicle.
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[¶10] The State filed a motion for further findings of fact and conclusions
of law. In response to the State’s motion, the court found that the information
obtained from the Concord Trailways employee was “too general and did not
provide a reliable basis for the court to conclude that the video captured the
suspect vehicle and the plate number of the suspect vehicle on the date and at
the time in question.” The court amended its suppression order to also
suppress the evidence obtained from Mariner’s vehicle.
[¶11] With the Attorney General’s approval, the State timely appealed
from the suppression order. See 15 M.R.S § 2115-A(1), (5) (2016); M.R.
App. P. 2(b)(2)(A), 21(b).
II. DISCUSSION
[¶12] The State contends that the information presented in the warrant
affidavit was sufficient for the warrant judge to find that there was probable
cause to believe that Gary Mariner sexually assaulted the alleged victim, and
that evidence of that crime would be found in his car, in his home, and on his
person. Mariner maintains that there was no probable cause because that
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determination depended on what he alleges was a “completely conclusory”
statement by the Concord Trailways employee.
[¶13] In order to discern whether probable cause has been presented, a
magistrate reviewing a warrant request applies the “totality of the
circumstances” test, as set forth by the United States Supreme Court in Illinois
v. Gates, 462 U.S. 213, 238 (1983). State v. Gurney, 2012 ME 14, ¶ 32, 36 A.3d
893. Pursuant to the totality of the circumstances test, a finding of probable
cause requires “a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit . . . including the ‘veracity’ and ‘basis of
knowledge’ of persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a particular place.”
Gates, 462 U.S. at 238; see also Gurney, 2012 ME 14, ¶ 32, 36 A.3d 893.
[¶14] “To meet the standard for probable cause, the warrant affidavit
must set forth some nexus between the evidence to be seized and the locations
to be searched.” State v. Samson, 2007 ME 33, ¶ 15, 916 A.2d 977. The nexus
may “be inferred from the type of crime, the nature of the items sought, the
extent of an opportunity for concealment and normal inferences as to where a
criminal would hide [evidence of a crime].” Id. (quotation marks omitted).
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[¶15] When probable cause for the issuance of a warrant is challenged
on appeal, “we directly review the finding of probable cause made by the
magistrate who issued the warrant.” State v. Simmons, 2016 ME 103, ¶ 11, 143
A.3d 819 (quotation marks omitted). “Our inquiry on appeal is limited to
whether there is a substantial basis for the probable cause finding.” Id. ¶ 12. “We review only the information within the ‘four corners’ of the affidavit, but
we do so construing the information in the affidavit in a positive light and
allowing for ‘reasonable inferences that may be drawn to support the
magistrate’s determination.’” Id. (citation omitted) (quoting State v. Johndro,
2013 ME 106, ¶ 9, 82 A.3d 820); see also Massachusetts v. Upton, 466 U.S. 727,
732-33 (1984); State v. Knowlton, 489 A.2d 529, 532-33 (Me. 1985).
[¶16] In this matter, contrary to Mariner’s contention, the existence of
probable cause did not depend on a wholly conclusory statement. The warrant
judge could reasonably infer that police provided the victim’s description of the
incident to the Concord Trailways employee who reported the license plate
number of a vehicle matching those details on a surveillance video. Because the
employee was a disinterested party, whose account was not “inherently
unreliable,” the warrant judge was entitled to rely on the information provided
by that individual. See Johndro, 2013 ME 106, ¶ 11, 82 A.3d 820. Moreover,
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after receiving the license plate information from the employee, police
continued their investigation by reviewing information contained in motor
vehicle and other records.
[¶17] The affidavit set forth detailed information about the alleged
victim’s description of her assailant and the circumstances of the alleged
assault. In addition to the information received from the Concord Trailways
employee, the affidavit provided substantial additional factual information that
reinforced the employee’s information and corroborated the victim’s report.
Based on Mariner’s physical appearance matching the victim’s description, his
vehicle being similar to the one the victim described and appearing on video at
the time and place that the alleged assault occurred, and his father once holding
the position indicated by the badge Mariner showed to the victim, the warrant
judge could reasonably determine that the totality of the information set forth
in the affidavit created a fair probability that Mariner was the assailant and that
evidence of the crime would be found at his home, in his car, and on his person.
[¶18] Further, the warrant judge could reasonably infer that the badge
and other items identified in the warrant and the supporting affidavit—
including a wallet, backpack, and handgun—were the kind of items that a
person would normally carry, conceal, or store in the pockets of clothing, in a
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vehicle, or in the person’s home. See Gurney, 2012 ME 14, ¶ 33, 36 A.3d 893.
Viewed in a positive light and allowing for reasonable inferences, there was a
substantial basis for the warrant judge’s probable cause determination. See
Simmons, 2016 ME 103, ¶ 12, 143 A.3d 819.
The entry is:
Suppression order vacated. Case remanded for
further proceedings.
Stephanie Anderson, District Attorney, and Jonathan T. Sahrbeck, Asst. Dist.
Atty. (orally), Office of the District Attorney, Portland, for appellant State of
Maine
Neale A. Duffett, Esq., (orally), Cloutier, Conley & Duffett, PA, Portland, for
appellee Gary Mariner
Cumberland County Unified Criminal Division docket number CR-2015-5918
FOR CLERK REFERENCE ONLY