MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	13	
Docket:	   Oxf-15-182	
Argued:	   February	10,	2016	
Decided:	  January	19,	2017	
	          	                                                                             	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                       STATE	OF	MAINE	
                                                	
                                               v.	
                                                	
                                      DAVID	L.	THOMPSON	
	
	
HJELM,	J.	

        [¶1]	 	 After	 David	 L.	 Thompson	 was	 charged	 with	 three	 drug-related	

crimes,	 he	 moved	 to	 suppress	 evidence	 obtained	 pursuant	 to	 a	 search	

warrant.		Included	in	his	motion	was	a	request	for	the	court	to	hold	a	Franks	

hearing1	 to	 allow	 him	 to	 challenge	 the	 truthfulness	 of	 the	 statements	 in	 the	

affidavit	 supporting	 the	 warrant	 application.	 	 To	 determine	 whether	

Thompson	 was	 entitled	 to	 a	 Franks	 hearing,	 the	 trial	 court	 (Oxford	 County,	

Clifford,	J.)	held	a	hearing	where	the	State	examined	the	affiant,	who	was	a	law	

enforcement	 officer	 involved	 in	 the	 investigation.	 	 During	 the	 course	 of	 the	

State’s	 direct	 examination,	 the	 court	 stated	 that,	 based	 on	 its	 review	 of	 the	

affidavit	and	the	officer’s	partial	testimony,	it	determined	that	Thompson	had	

    1		See	Franks	v.	Delaware,	438	U.S.	154	(1978).			
2	

not	made	a	sufficient	showing	to	warrant	a	full	Franks	hearing,	and	denied	his	

request.		The	court	also	rejected	Thompson’s	assertion	that	the	warrant	was	

not	supported	by	probable	cause.		Thompson	entered	conditional	guilty	pleas	

to	all	charges.		On	this	appeal,	we	affirm	the	court’s	order	denying	that	part	of	

Thompson’s	motion	challenging	probable	cause.		We	conclude,	however,	that	

the	 hearing	 conducted	 by	 the	 court	 must	 be	 treated	 as	 the	 beginning	 of	 a	

Franks	hearing.		We	therefore	vacate	the	judgment	and	remand	for	the	court	

to	hold	a	full	hearing.	

                                              I.		BACKGROUND	

          [¶2]	 	 Maine	 Drug	 Enforcement	 Special	 Agent	 Tony	 L.	 Milligan	 was	

involved	 in	 an	 investigation	 into	 the	 manufacture	 and	 distribution	 of	

methamphetamine.	 	 In	 February	 2014,	 Milligan	 submitted	 a	 consolidated	

application	 seeking	 search	 warrants	 for	 four	 residences,	 including	

Thompson’s	 residence	 in	 Gilead,	 which	 he	 shared	 with	 his	 son,	 Mico	

Thompson.2	 	 The	 fifty-page	 affidavit	 supporting	 the	 application	 describes	

conduct	 and	 circumstances	 involving	 Thompson,	 Mico	 Thompson,	 and	 six	

other	people	allegedly	involved	in	illegal	drug	activity.		



     2	 	 For	 ease	 of	 reference,	 in	 this	 opinion	 we	 will	 refer	 to	 the	 defendant	 as	 “Thompson”	 and	 to	

other	members	of	his	family	by	their	full	names.	
                                                                                 3	

      [¶3]	 	 The	 affidavit	 contains	 the	 following	 information	 concerning	

Thompson.	 	 Three	 unnamed	 people	 (“sources	 of	 information”	 or	 “SOI”)	 told	

Milligan	 that	 Thompson	 was	 involved	 in	 the	 manufacturing	 of	

methamphetamine.		SOI	#1	previously	provided	the	Maine	Drug	Enforcement	

Agency	 with	 drug	 trafficking	 information	 that	 was	 independently	 confirmed.		

Amanda	 Thompson,	 who	 is	 Thompson’s	 daughter	 and	 herself	 makes	

methamphetamine,	 told	 SOI	 #1	 that	 Thompson	 and	 her	 brother,	 Mico,	 were	

involved	 in	 producing	 methamphetamine	 in	 the	 basement	 of	 Thompson’s	

Gilead	 residence.	 	 The	 affidavit	 made	 reference	 to	 an	 audio-recorded	

controlled	purchase	of	methamphetamine	by	SOI	#1	from	a	third	person,	who	

was	also	a	subject	of	the	warrant	application.		Milligan	stated	in	the	affidavit	

that	during	the	transaction,	the	third	person	“indicated	to	SOI	#1	that	he	was	

the	main	distributor	for	AMANDA	THOMPSON	.	.	.	and	of	his	association	with	

others	.	.	.	that	are	also	making	and	selling	methamphetamine—	.	.	.	[including]	

MICO	THOMPSON	and	his	father	in	Gilead.”			

      [¶4]		As	recited	in	Milligan’s	affidavit,	two	other	SOIs	also	reported	that	

Mico	Thompson’s	father,	whose	name	they	did	not	know,	was	involved	in	the	

production	 of	 methamphetamine.	 	 SOI	 #3,	 who	 had	 provided	 truthful	

information	 to	 law	 enforcement	 in	 the	 past,	 stated	 that	 methamphetamine	
4	

was	 being	 produced	 in	 Mico	 Thompson’s	 father’s	 basement,	 although	 the	

affidavit	does	not	describe	the	underlying	basis	for	the	information.		SOI	#4	is	

a	 “concerned	 citizen”	 who	 provided	 information	 about	 the	 production	 and	

trafficking	 of	 methamphetamine	 to	 assist	 law	 enforcement,	 and	 acquired	

information	about	Thompson’s	involvement	in	methamphetamine	production	

through	conversations	with	a	co-worker	who	is	“a	regular	methamphetamine	

customer.”	 	 SOI	 #4	 reported	 other	 details,	 including	 Thompson’s	 use	 of	 the	

“shake	 and	 bake”	 production	 method,	 his	 willingness	 to	 trade	

methamphetamine	 for	 commercial	 ingredients	 used	 in	 the	 production	

process,	and	his	place	of	employment.		

      [¶5]		Through	the	investigation,	Milligan	learned	that	Mico	Thompson’s	

father’s	 name	 is	 David	 Thompson	 and,	 by	 happenstance,	 subsequently	 saw	

Thompson	at	a	local	business.		Milligan	followed	Thompson	and	saw	him	meet	

Amanda	 Thompson’s	 boyfriend.	 	 Milligan	 made	 “observations	 [that]	 were	

consistent	with	that	of	an	apparent	drug	transaction”	between	the	two.				

	     [¶6]		The	warrant	applications	were	granted	in	early	February	2014	by	

a	 District	 Court	 judge	 (Carlson,	 J.),	 serving	 as	 the	 reviewing	 magistrate,	 and	

several	 days	 later	 police	 executed	 the	 warrant	 and	 conducted	 the	 search.		

Thompson	 was	 subsequently	 charged	 by	 criminal	 complaint	 and,	 in	
                                                                                                            5	

April	2014,	 by	 indictment	 for	 two	 counts	 of	 aggravated	 trafficking	 in	

scheduled	 drugs	 (Class	 A),	 17-A	 M.R.S.	 §	 1105-A(1)(B)(1)	 (2015),3	 and	 one	

count	 of	 conspiracy	 to	 commit	 aggravated	 trafficking	 in	 scheduled	 drugs	

(Class	 B),	 17-A	 M.R.S.	 §§	 151(1)(B),	 1105-A(1)(B)(1)	 (2015).	 	 Thompson	

pleaded	not	guilty.			

	        [¶7]	 	 Thompson	 filed	 a	 motion	 for	 sanctions	 based	 on	 allegations	 of	

discovery	 violations	 by	 the	 State.	 	 See	 M.R.	 Crim.	 P.	 16(d).4	 	 In	 the	 motion,	

Thompson	 sought	 dismissal	 of	 the	 charges	 or	 a	 court	 order	 prohibiting	 the	

State	 from	 presenting	 certain	 evidence.	 	 The	 court	 ultimately	 denied	 the	

motion	summarily.			

         [¶8]		Thompson	also	filed	a	motion	to	suppress	evidence,	asserting	that	

the	information	in	the	warrant	affidavit	was	not	sufficient	to	support	a	finding	

of	 probable	 cause	 and	 that	 the	 affidavit	 included	 intentional	 or	 knowing	

misstatements	 or	 misstatements	 made	 in	 reckless	 disregard	 of	 their	 truth.		

Based	 on	 the	 latter	 ground,	 Thompson	 requested	 that	 the	 court	 hold	 a	

testimonial	 Franks	 hearing.	 	 He	 later	 filed	 a	 “supplemental	 motion”	 that	


    3	 	 The	 sentencing	 classification	 for	 each	 charge	 was	 enhanced	 because	 the	 State	 alleged	 that	

David	Thompson	had	been	previously	convicted	of	a	qualifying	drug	offense.			

    4		The	Maine	Rules	of	Criminal	Procedure	applied	in	this	instance.	 	The	Maine	Rules	of	Unified	

Criminal	 Procedure	 became	 effective	 in	 Oxford	 County	 on	 April	 1,	 2015,	 shortly	 after	 Thompson	
entered	conditional	guilty	pleas	on	March	27,	2015.		M.R.U.	Crim.	P.	1(e)(2).			
6	

elaborated	 on	 his	 allegations	 that	 the	 warrant	 affidavit	 contained	

misstatements.	 	 In	 response,	 the	 State	 filed	 a	 “[c]onsolidated	 [m]otion”	 to	

deny	the	motion	to	suppress	and	the	request	for	a	Franks	hearing.			

         [¶9]		In	January	2015,	over	objections	of	both	parties,	the	court	held	a	

testimonial	hearing	associated	with	Thompson’s	suppression	motion.5		At	the	

beginning	 of	 the	 hearing,	 the	 court	 stated	 that	 it	 wanted	 to	 hear	 testimony	

from	Milligan,	and	that	the	purpose	of	the	hearing	was	for	the	presentation	of	

evidence	that	would	allow	it	to	determine	whether	Thompson	was	entitled	to	

a	Franks	hearing:	

     And	the	reason	I’m	doing	this,	I	think	.	.	.	the	most	efficient	way	for	
     me	to	get	a	grasp	as	to	whether	or	not	there	was	an	entitlement	to	
     a	Franks	hearing	is	to	listen	to	the	affiant	go	through	the	affidavit	
     to	point	out	the	information	on	which	he	relied,	some	of	which	is	
     challenged,	a	lot	which	is	challenged	.	.	.	.			
            	
The	court	acknowledged	that	“it’s	unusual	to	have	a	hearing	before	a	hearing.”		

The	parties	objected	to	the	procedure	invoked	by	the	court:	the	State	argued	

that	Thompson	had	not	made	the	showing	necessary	to	merit	any	hearing,	and	

Thompson	asserted	that	based	on	the	information	accompanying	his	motion,	

he	was	entitled	to	a	full	Franks	hearing.				


     5		Mico	Thompson	had	also	been	charged	with	drug	offenses.		He	joined	in	Thompson’s	motion	

but	immediately	before	Milligan	began	to	testify	at	the	hearing,	Mico	entered	guilty	pleas	pursuant	
to	a	plea	agreement,	and	he	did	not	participate	further	in	the	hearing.	
                                                                                            7	

      [¶10]	 	 The	 State	 called	 Milligan	 as	 a	 witness.	 	 As	 Milligan	 testified,	 the	

court	 suggested	 to	 him	 that	 in	 the	 motion	 for	 a	 Franks	 hearing,	 Thompson	

alleged	 that	 the	 recording	 of	 the	 controlled	 drug	 purchase	 between	 SOI	 #1	

and	the	third	person	did	not	support	Milligan’s	statement	in	the	affidavit	that	

the	 third	 person	 “indicated”	 that	 Thompson	 was	 manufacturing	 and	 selling	

methamphetamine.		Milligan	then	explained	that	investigators	who	monitor	a	

controlled	 drug	 transaction	 eventually	 prepare	 reports	 and	 affidavits	 based	

both	on	their	memory	of	what	they	heard	and	their	debriefing	of	an	informant.		

Milligan	also	explained	to	the	court	that	in	a	warrant	affidavit,	the	description	

of	 transactions	 is	 sometimes	 based	 on	 the	 investigators’	 interpretation	 of	

words	 or	 references	 to	 people.	 	 As	 to	 this	 particular	 transaction,	 Milligan	

agreed	that	he	was	“able	to	infer	that	it	was	Mico’s	father	even	though	David	

Thompson’s	name	wasn’t	spoken.”			

      [¶11]		In	an	exchange	with	Milligan,	the	court	also	made	reference	to	the	

description	 in	 the	 warrant	 affidavit	 about	 the	 encounter	 between	 Thompson	

and	Amanda	Thompson’s	boyfriend,	which	Milligan	stated	in	the	affidavit	was	

“consistent”	 with	 a	 drug	 transaction.	 	 When	 the	 court	 raised	 this	 issue,	

Milligan	stated,	“You	know,	I	should	just	say,	I	don’t	even	know	what	we	saw,	

and	I	think	I	made	that	clear	in	the	affidavit.		To	the	naked	eye	it	looked—it	
8	

was	 indicative	 [of]	 a	 drug	 transaction,	 but	 what	 it	 was	 or	 wasn’t—.”	 	 In	

response	to	a	statement	by	the	court,	Milligan	agreed	that	he	had	not	claimed	

in	his	affidavit	that	it	was	a	drug	transaction	but	that	it	was	merely	“consistent	

with	or	indicative	of”	one.			

      [¶12]	 	 After	 Milligan	 finished	 answering	 a	 question	 presented	 by	 the	

State,	the	court	stated:	

    [O]ver	 the	 [d]efendant’s	 objection,	 based	 on	 the	 testimony	 of	
    Agent	 Milligan	 and	 my	 review	 of	 the	 affidavit	 and	 of	 the	 State’s	
    memorandum,	I	think	that	I’m	going	to	deny	[d]efendant’s	motion	
    for	 a	 Franks	 hearing	 .	 .	 .	 because	 .	 .	 .	 I	 just	 don’t	 think	 there’s	
    anything	that	appears	to	me	to	be	a	.	.	.	deliberate	material	falsity,	
    or	if[,]	even	discounting	the	information	from	the	recording	of	the	
    [controlled]	buy	.	.	.,	there	is	.	.	.	more	than	enough	information	in	
    the	affidavit	that	would	be	sufficient	for	the	magistrate	to	sign	the	
    affidavit.			
            	
Thompson	then	stated	that	he	objected	to	the	absence	of	any	opportunity	to	

cross-examine	Milligan	and	to	the	court’s	failure	to	listen	to	the	recording	of	

the	 controlled	 buy,	 which	 Thompson	 had	 provided	 to	 the	 court.	 	 The	 court	

explained	 that	 “cross-examination	 of	 this	 witness	 is,	 in	 fact,	 a	 Franks	

hearing.	.	.	.	 	 [T]he	 [d]efendant	 has	 the	 burden	 of	 demonstrating	 the	

entitlement	to	a	Franks	hearing.		And	I	think	they’ve	not	met	the	burden	based	

on	 the	 material	 they	 submitted	 as	 well	 as	 the	 explanation	 of	 Agent	 Milligan.”		

(Emphasis	added.)				
                                                                                                                9	

        [¶13]		The	court	took	under	advisement	and	later	denied	the	remaining	

part	of	Thompson’s	motion,	which	challenged	the	sufficiency	of	the	affidavit	to	

demonstrate	probable	cause	to	search	his	residence.		Pursuant	to	Maine	Rule	

of	Criminal	Procedure	11(a)(2),	Thompson	subsequently	entered	conditional	

guilty	 pleas	 to	 the	 three	 pending	 charges,	 reserving	 his	 right	 to	 appeal	 from	

the	 orders	 denying	 his	 motion	 to	 suppress	 and	 motion	 for	 sanctions.	 	 The	

court	 found	 Thompson	 guilty	 based	 on	 his	 pleas,	 and	 on	 each	 count,	 by	

agreement	of	the	parties,	imposed	concurrent	prison	sentences	of	eight	years	

with	all	but	four	years	suspended,	to	be	followed	by	four	years	of	probation	on	

the	 charges	 of	 aggravated	 trafficking	 in	 scheduled	 drugs	 and	 three	 years	 of	

probation	on	the	conspiracy	charge.		The	court	also	ordered	Thompson	to	pay	

the	 minimum	 mandatory	 fine	 of	 $400	 on	 each	 of	 the	 two	 charges,	 see	

17-A	M.R.S.	§	1301(6)	(2015),6	and	imposed	restitution	of	$2,500	for	the	cost	

of	drug	testing.		Pursuant	to	the	conditional	guilty	pleas,	Thompson	appealed.			

                                             II.		DISCUSSION	

        [¶14]	 	 Thompson	 argues	 that	 (1)	 the	 information	 contained	 in	 the	

warrant	application	was	insufficient	to	allow	a	probable	cause	determination;	

(2)	 the	 court	 erred	 in	 holding	 a	 preliminary	 hearing	 and	 allowing	 only	 the	

   6	 	 Although	 the	 court	 stated	 at	 the	 sentencing	 hearing	 that	 the	 fines	 would	 be	 included	 in	 the	

sentences,	they	were	not	set	out	in	the	resulting	judgment	and	commitment.	
10	

State	to	present	evidence	that	the	court	considered	when	denying	his	motion	

for	 a	 Franks	 hearing;	 (3)	 he	 made	 a	 substantial	 preliminary	 showing	 that	

entitled	 him	 to	 a	 Franks	 hearing;	 and	 (4)	 the	 court	 erred	 in	 denying	 his	

discovery-based	 motion	 for	 sanctions.	 	 We	 first	 consider	 Thompson’s	

arguments	related	to	his	suppression	motion,	and	we	then	briefly	address	his	

discovery	motion.	

A.    Motion	to	Suppress	

      [¶15]		In	his	motion	to	suppress,	Thompson	challenged	the	issuance	of	

the	 search	 warrant	 in	 two	 ways.	 	 First,	 he	 asserted	 that	 the	 information	

contained	 within	 the	 four	 corners	 of	 the	 affidavit	 did	 not	 support	 the	

determination	 of	 probable	 cause.	 	 Second,	 he	 claimed	 that	 the	 affidavit	

submitted	 in	 support	 of	 the	 warrant	 application	 was	 affected	 by	 actionable	

misstatements,	 entitling	 him	 to	 relief	 pursuant	 to	 Franks.	 	 The	 court	 denied	

both	aspects	of	Thompson’s	motion,	which	we	address	in	turn.			

      1.     Probable	Cause	Determination	

      [¶16]	 	 Thompson	 argues	 that	 evidence	 obtained	 through	 the	 search	

warrant	 supported	 by	 Milligan’s	 affidavit	 should	 have	 been	 suppressed	

because	 the	 informants	 referenced	 in	 the	 affidavit	 were	 unnamed	 and	 the	

information	 lacked	 corroboration,	 and	 that	 in	 the	 totality	 of	 the	
                                                                                             11	

circumstances,	 the	 affidavit	 fell	 short	 of	 establishing	 probable	 cause.	 	 On	

appeal	from	a	denial	of	a	motion	to	suppress	evidence	obtained	by	execution	

of	a	search	warrant,	we	review	directly	the	issuing	judge’s	finding	of	probable	

cause	to	issue	the	warrant.		State	v.	Samson,	2007	ME	33,	¶	11,	916	A.2d	977.		

“Probable	cause	exists	when,	based	on	the	totality	of	the	circumstances,	there	

is	a	fair	probability	that	contraband	or	evidence	of	a	crime	will	be	found	in	a	

particular	 place.”	 	 Id.	 ¶	 12	 (citing	 Illinois	 v.	 Gates,	 462	U.S.	 213,	 238	 (1983)).		

Our	 review	 is	 confined	 to	 “the	 information	 within	 the	 four	 corners	 of	 the	

affidavit,”	with	that	information	viewed	“in	a	positive	light.”		State	v.	Simmons,	

2016	ME	103,	¶	12,	143	A.3d	819	(quotation	marks	omitted).		

       [¶17]	 	 Milligan’s	 affidavit	 contained	 information	 supporting	 the	

probable	 cause	 determination	 that	 Thompson	 was	 involved	 in	 illegal	

drug-related	 activity	 and	 that	 evidence	 of	 that	 criminal	 conduct	 would	 be	

found	 at	 his	 residence.	 	 Three	 SOIs	 separately	 reported	 that	 Thompson	 was	

involved	 in	 producing	 methamphetamine,	 and	 two	 of	 those	 informants	

specified	 that	 Thompson	 did	 so	 in	 the	 basement	 of	 his	 home.	 	 Although	 the	

SOIs	 were	 not	 identified	 by	 name,	 the	 affidavit	 stated	 that	 each	 of	 them	 had	

provided	 reliable	 information	 in	 the	 past;	 the	 affidavit	 explained	 that	 two	 of	

the	SOIs,	who	are	“citizen	informants,”	obtained	their	information	from	people	
12	

involved	 in	 the	 illegal	 drug	 activity	 under	 investigation;	 and	 the	 information	

from	each	of	the	SOIs	was	mutually	corroborative.		These	factors	entitled	the	

District	 Court	 judge	 to	 infer	 that	 the	 information	 was	 reliable.	 	 See	 State	 v.	

Rabon,	 2007	 ME	 113,	 ¶	 24,	 930	 A.2d	 268.	 	 Even	 beyond	 this,	 an	 officer	 saw	

Thompson	 participate	 in	 an	 apparent	 drug	 transaction	 with	 another	

individual	 who	 also	 sold	 methamphetamines	 to	 a	 different	 SOI	 during	 a	

transaction	monitored	and	recorded	by	drug	investigators.				

       [¶18]	 	 The	 totality	 of	 the	 information	 within	 the	 four	 corners	 of	 the	

affidavit	established	a	fair	probability	that	evidence	of	criminal	conduct	would	

be	 found	 at	 Thompson’s	 home	 and	 supported	 the	 District	 Court	 judge’s	

probable	cause	determination.		The	court	therefore	did	not	err	in	denying	this	

aspect	 of	 Thompson’s	 suppression	 motion.	 	 See	 State	 v.	 Nigro,	 2011	 ME	 81,	

¶	27,	24	A.3d	1283.					

       2.     Motion	for	Franks	Hearing	

       [¶19]	 	 Having	 concluded	 that	 the	 court	 did	 not	 err	 in	 rejecting	

Thompson’s	 argument	 that	 the	 affidavit	 failed	 to	 support	 the	 District	 Court	

judge’s	probable	cause	determination,	we	next	consider	the	court’s	treatment	

of	Thompson’s	motion	for	a	Franks	hearing.			
                                                                                         13	

       [¶20]		In	contrast	to	challenging	the	sufficiency	of	the	information	as	it	

is	presented	in	a	warrant	affidavit,	a	defendant	may	seek	to	invoke	the	process	

established	in	Franks	and	go	behind	that	information	based	on	a	claim	that	the	

affiant	 knowingly	 or	 recklessly	 misstated	 information,	 see	 State	 v.	 Hamel,	

634	A.2d	 1272,	 1273	 (Me.	 1993),	 or	 deliberately	 omitted	 facts	 “negatory	 of	

probable	cause,”	State	v.	Van	Sickle,	580	A.2d	691,	693	(Me.	1990).		Affidavits	

submitted	 in	 support	 of	 warrant	 applications	 are	 presumed	 to	 be	 proper.		

Franks	 v.	 Delaware,	 438	 U.S.	 154,	 171	 (1978);	 Hamel,	 634	 A.2d	 at	 1273-74.		

Therefore,	 in	 order	 to	 demonstrate	 an	 entitlement	 to	 an	 evidentiary	 hearing	

where	 a	 challenge	 to	 alleged	 misstatements	 may	 be	 developed	 on	 a	 proper	

record,	 a	 defendant	 must	 make	 a	 “substantial	 preliminary	 showing”	 that	

(1)	the	affiant	“knowingly	and	intentionally,	or	with	reckless	disregard	for	the	

truth”	 made	 a	 false	 statement	 in	 a	 warrant	 affidavit,	 and	 (2)	 “the	 allegedly	

false	statement	is	necessary	to	the	finding	of	probable	cause.”		Franks,	438	U.S.	

at	155-56.		If	a	defendant	makes	the	requisite	showing,	he	is	constitutionally	

entitled	to	a	Franks	hearing.		Id.	at	156.	

       [¶21]	 	 The	 substantial	 preliminary	 showing	 that	 the	 defendant	 must	

make	 is	 in	 the	 nature	 of	 an	 offer	 of	 proof.	 	 Id.	 at	 171;	 State	 v.	 Dickinson,	

2005	ME	100,	¶	8,	881	A.2d	651;	see	also	United	States	v.	Glover,	755	F.3d	811,	
14	

820	 (7th	 Cir.	 2014)	 (stating	 that	 the	 showing	 must	 satisfy	 a	 “burden	 of	

production”).		Unless	the	defendant	adequately	explains	why	he	cannot	do	so,	

that	 showing	 is	 made	 in	 the	 form	 of	 “[a]ffidavits	 or	 sworn	 or	 otherwise	

reliable	 statements	 of	 witnesses.”	 	 Franks,	 438	 U.S.	 at	 171.	 	 The	 supporting	

material	must	contain	information	that	is	“more	than	conclusory	and	must	be	

supported	by	more	than	a	mere	desire	to	cross-examine.”		Id.	

      [¶22]	 	 The	 motion	 court	 must	 then	 determine	 whether	 the	 defendant	

has	made	a	showing	sufficient	to	trigger	a	Franks	hearing.		That	determination	

is	 generally	 based	 on	 the	 affidavit	 or	 other	 documentary	 material	 filed	 in	

support	 of	 the	 motion.	 	 Dickinson,	 2005	 ME	 100,	 ¶	 19,	 881	 A.2d	 651	 (“This	

preliminary	 inquiry	 requires	 the	 court	 to	 consider	 the	 warrant	 affidavit	 and	

the	defendant’s	written	submissions	.	.	.	.”).		It	has	been	recognized,	however,	

that	 it	 is	 “not	 always	 easy	 to	 draw	 the	 Franks	 line	 between	 sufficient	 and	

insufficient	showings”	based	on	the	documentary	materials	submitted	by	the	

accused.	 	 See	 United	 States	 v.	 McMurtrey,	 704	 F.3d	 502,	 509	 (7th	 Cir.	 2013).		

Consequently,	the	motion	court	is	authorized,	as	a	matter	of	discretion,	to	give	

the	 accused	 an	 opportunity	 “to	 supplement	 or	 elaborate	 on	 [the]	 original	

submissions.”		Id.			
                                                                                        15	

       [¶23]	 	 The	 forum	 for	 this	 opportunity	 is	 a	 “pre-Franks”	 hearing	 that	

serves	 the	 narrow	 purpose	 of	 allowing	 the	 court	 to	 determine	 whether	 the	

defendant	can	make	the	showing	necessary	to	warrant	a	full	Franks	hearing.		

Id.	 at	 509-510;	 Glover,	 755	 F.3d	 at	 821.	 	 The	 purpose	 and	 scope	 of	 any	 such	

preliminary	hearing	is	not	to	provide	the	prosecution	with	an	opportunity	to	

clarify	information	in	the	warrant	application	or	to	explain	any	discrepancies	

or	 contradictions	 that	 bear	 on	 issues	 of	 veracity	 affecting	 the	 warrant	

affidavit.		See	McMurtrey,	704	F.3d	at	504.	

       [¶24]		Here,	the	court	stated	that	it	chose	to	hold	a	preliminary	hearing	

to	inform	its	determination	of	whether	Thompson	would	be	entitled	to	a	full	

Franks	 hearing.	 	 As	 it	 was	 carried	 out,	 however,	 the	 hearing,	 held	 over	

Thompson’s	 objection,	 constituted	 a	 vehicle	 for	 the	 State	 to	 respond	 to	 the	

challenges	asserted	in	Thompson’s	written	motion	rather	than	as	a	forum	for	

Thompson	 to	 supplement	 or	 enhance	 the	 information	 that	 he	 had	 already	

submitted	in	support	of	his	motion	for	a	Franks	hearing.			

       [¶25]		This	is	demonstrated	by	the	court’s	ruling,	after	the	court	listened	

to	 Agent	 Milligan’s	 explanation	 of	 challenged	 portions	 of	 the	 affidavit,	 that	 it	

contained	no	“deliberate	material	falsity.”		The	court	made	that	ruling	without	

providing	 any	 opportunity	 for	 Thompson	 to	 test	 the	 State’s	 evidence	 or	 to	
16	

present	his	own	evidence	to	support	the	substantial	preliminary	showing	that	

he	 was	 required	 to	 present.	 	 For	 example,	 during	 the	 course	 of	 the	 State’s	

direct	 examination	 of	 Milligan	 and	 without	 giving	 Thompson	 an	 opportunity	

to	cross-examine,	the	court	ruled	that	it	was	denying	Thompson’s	motion	for	a	

full	 Franks	 hearing.	 	 Further,	 the	 court	 declined	 to	 consider	 an	 audio	

recording,	 offered	 into	 evidence	 by	 Thompson,	 of	 the	 controlled	 drug	 buy	

involving	SOI	#1,	which	was	the	basis	for	Thompson’s	assertion	that	Milligan	

misrepresented	the	participants’	conversation	in	the	warrant	affidavit.				

        [¶26]		The	court	erred	by	holding	a	pre-Franks	hearing	that,	in	process	

and	 purpose,	 did	 not	 allow	 Thompson	 to	 attempt	 to	 meet	 the	 burden	 of	

production	necessary	for	a	full	Franks	hearing.		In	effect,	the	court	converted	

the	 preliminary	 hearing	 into	 the	 beginning	 of	 a	 full	 Franks	 hearing,	 and	 we	

must	 vacate	 the	 order	 denying	 Thompson’s	 motion	 for	 a	 Franks	 hearing.7		

Because	 the	 court	 entered	 that	 order	 based	 in	 part	 on	 Milligan’s	 partial	

testimony,	 we	 remand	 for	 the	 court	 to	 hold	 a	 full	 Franks	 hearing—

encompassing	 the	 remainder	 of	 Milligan’s	 testimony,	 including	 Thompson’s	

cross-examination	 of	 him,	 and	 other	 evidence	 the	 parties	 wish	 to	 present—


   7		In	the	past,	we	have	reserved	ruling	on	whether	we	review	the	denial	of	a	motion	for	a	Franks	

hearing	for	clear	error	or	on	a	de	novo	basis.		See	State	v.	Boutilier,	2011	ME	17,	¶	1	n.1,	12	A.3d	44.		
We	need	not	address	that	issue	here,	because	our	decision	is	the	same	under	either	standard.		
                                                                                    17	

rather	 than	 for	 the	 court	 to	 determine	 merely	 whether	 Thompson’s	

pre-hearing	 submissions	 constitute	 a	 substantial	 preliminary	 showing.	 	 See	

McMurtrey,	704	F.3d	at	504	(“[T]he	court	should	not	give	the	government	an	

opportunity	 to	 present	 its	 evidence	 on	 the	 validity	 of	 the	 warrant	 without	

converting	 the	 hearing	 into	 a	 full	 evidentiary	 Franks	 hearing,	 including	 full	

cross-examination	of	government	witnesses.”).		

      [¶27]	 	 We	 emphasize	 that	 our	 remand	 instruction	 for	 the	 court	 to	

conduct	 a	 full	 Franks	 hearing	 does	 not	 suggest	 any	 determination	 about	

whether	 Thompson	 made	 the	 substantial	 preliminary	 showing	 that	 is	

ordinarily	required	as	a	predicate	to	such	a	hearing.		Rather,	given	the	unusual	

procedural	 posture	 of	 Thompson’s	 motion,	 where	 the	 court	 began	 the	

testimonial	process	and	ruled	based	in	part	on	Milligan’s	partial	testimony,	a	

full	 hearing	 is	 the	 only	 available	 course	 for	 Thompson’s	 contentions	 to	 be	

considered	properly.	

B.    Motion	for	Discovery	

      [¶28]	 	 Thompson	 also	 argues	 on	 appeal	 that	 the	 court	 erred	 when	 it	

summarily	denied	his	motion	for	sanctions,	which	was	based	on	his	assertion	

that	 the	 State	 had	 not	 produced	 certain	 information	 and	 material	 through	
18	

discovery.		See	M.R.	Crim.	P.	16(d).8		Because	we	remand	the	matter	for	further	

proceedings,	we	do	not	reach	this	issue.		Thompson	will	now	be	entitled	to	a	

full	 Franks	 hearing.	 	 Therefore,	 the	 court	 will	 have	 an	 opportunity	 to	 revisit	

the	 discovery	 issue	 to	 determine,	 based	 on	 the	 change	 in	 the	 posture	 of	 the	

case,	whether	any	“appropriate	action”	is	warranted	on	the	motion.		See	M.R.U.	

Crim.	P.	16(e).	

         The	entry	is:	

                          Judgment	 vacated.	 	 Remanded	 for	 further	
                          proceedings	consistent	with	this	opinion.		
	
	        	       	        	       	        	
	
	
	
	
	
	
	

    8	
     	 Thompson	 initially	 filed	 a	 “request	 for	 additional	 discovery”	 pursuant	 to	 Maine	 Rule	 of	
Criminal	Procedure	16(b),	in	which	he	sought	a	court	order	requiring	the	State	to	produce	certain	
discoverable	 materials.	 	 Rule	 16(b),	 however,	 merely	 created	 a	 mechanism	 for	 a	 defendant	 to	
request	 discovery	 material	 directly	 from	 the	 State	 without	 judicial	 intervention,	 even	 though	 the	
court	 treated	 the	 Rule	 16(b)	 submission	 as	 a	 motion	 and	 denied	 it.	 	 Later,	 Thompson	 filed	 a	
“request	 for	 sanctions.”	 	 In	 substance,	 this	 filing	 was	 a	 motion	 that	 implicated	 Rule	 16(d),	 which	
allowed	 a	 defendant	 to	 seek	 a	 court	 order	 of	 “[s]anctions	 for	 [n]oncompliance”	 with	 discovery	
obligations.		M.R.	Crim.	P.	16(d).		

   We	 further	 note	 that	 in	 its	 brief	 on	 appeal,	 the	 State	 represented	 that	 it	 had	 provided	 the	
requested	discovery.		The	near-nonexistent	record	on	the	discovery	issue	would	make	it	difficult	to	
determine	whether	the	court’s	denial	of	Thompson’s	motion	exceeded	its	“substantial	deference	in	
overseeing	the	parties’	discovery,”	which,	to	warrant	relief	on	appeal,	requires	a	showing	that	the	
effect	of	the	order	“is	so	significant	as	to	deprive	him	of	a	fair	trial.”		State	v.	Silva,	2012	ME	120,	¶	8,	
56	A.3d	1230.		Nonetheless,	we	do	not	reach	the	merits	of	Thompson’s	argument.	
                                                                                   19	

	
Jamesa	 J.	 Drake,	 Esq.	 (orally),	 Drake	 Law,	 LLC,	 Auburn,	 for	 appellant	 David	
Thompson	
	
Janet	T.	Mills,	Attorney	General,	and	Leanne	Robbin,	Asst.	Atty.	Gen.,	(orally),	
Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine	
	
	
	
Oxford	County	Superior	Court	docket	number	CR-2014-54	
FOR	CLERK	REFERENCE	ONLY	
	
