MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision: 2013 ME 106
Docket:   Aro-13-27
Argued:   September 9, 2013
Decided:  December 5, 2013

Panel:          SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
                JJ.


                                   STATE OF MAINE

                                           v.

                             CHRISTOPHER J. JOHNDRO

SILVER, J.

         [¶1] The State appeals from an order of the Superior Court (Aroostook

County, Hunter, J.) granting Christopher Johndro’s motion to suppress evidence.

The Superior Court found that search warrants for Johndro’s house, garage, and car

were not supported by probable cause. The court further found that, because the

initial affidavit was so lacking in indicia of probable cause, officers did not rely on

the warrants in objectively reasonable good faith. Finally, the court concluded that

evidence seized pursuant to the third search warrant must be excluded as fruit of

the poisonous tree. We affirm the order granting Johndro’s motion to suppress.

                                   I. BACKGROUND

         [¶2]    On April 15, 2009, Chief Stacey Mahan of the Limestone Police

Department was called to investigate a burglary at 257 Long Road in Limestone.
2

Several footprints were found near the garage, and a footprint inside the house

appeared to match the footprints outside. At Mahan’s request, a Maine State

Police Trooper arrived on scene with his dog and conducted a search of the area.

The dog followed footprints from the driveway to Blake Road, located to the east

of the residence.

      [¶3] Mahan was called to the scene of another burglary in Limestone later

that day, this time at 646 Blake Road. A footprint found inside the residence

appeared to match the footprints found at the scene of the Long Road burglary.

      [¶4] The following day, April 16, a Limestone resident informed Mahan

that he had observed a “strange” vehicle driven by a male operator at 257 Long

Road around noon the previous day. He described the vehicle as a Dodge Intrepid

bearing the license plate 2196MD.

      [¶5] Later in the day, a local resident named Vinal Paul Chasse informed

Mahan that Chasse’s stepfather, a trash collector in Limestone named Carl Morin,

had observed a vehicle on Blake Road, also around noon the previous day.

According to Chasse, Morin saw the vehicle pull in and out of “a couple” of

driveways, which made him nervous. Morin had written down the license plate

number, which Chasse provided to Mahan. The number, 2196RD, was assigned to

a 2002 Dodge Intrepid registered to Christopher Johndro. Mahan ran a criminal

history check on Johndro and found that he had multiple burglary convictions.
                                                                                 3

      [¶6] Mahan immediately completed an affidavit containing only the above

facts and submitted it, along with a proposed search warrant for Johndro’s house

and car, to a justice of the peace on April 16, 2009. The affidavit did not mention

what items, if any, had been taken from the homes, nor did it provide any other

information regarding the reason for which a search was requested. The draft

search warrant did include a list of items that purportedly constituted evidence of

burglary, including loose change, a green pillowcase, shoes, jewelry, firearms, and

safes. The justice of the peace signed and issued the proposed warrant that same

day, and Mahan, along with other officers, executed it at Johndro’s residence.

They seized several items, including marijuana, loose change, and a diamond ring.

Later that day, using the same affidavit, Mahan applied to the same justice of the

peace for a second warrant to search a shed behind the house. The justice of the

peace granted the warrant. The search of the shed did not produce any further

evidence.

      [¶7] Five days later, on April 21, 2009, Mahan applied to the same justice of

the peace for a third warrant authorizing another search of Johndro’s house. The

affidavit in support of this warrant was from another officer, who had observed a

gold wristwatch inside Johndro’s house during the first search and had later

learned that it matched the description of a watch connected to a burglary in
4

Caribou.1 The affidavit further stated that officers had learned that Johndro might

have hidden evidence in an area of the house that was not searched during the

execution of the first warrant. The justice of the peace issued the third warrant,

pursuant to which the police seized additional evidence.

        [¶8] On November 6, 2009, Johndro was indicted on five counts of burglary

(Class B), 17-A M.R.S. § 401(1)(B)(4) (2012), two counts of theft (Class B), 17-A

M.R.S. § 353(1)(B)(2) (2012), and three counts of theft (Class C), 17-A M.R.S.

§ 353(1)(B)(6) (2012).            Johndro entered not guilty pleas on all counts on

January 21, 2010, and later filed a motion to suppress the evidence obtained

pursuant to the three search warrants. The trial court granted the motion, finding

that the first affidavit did not establish probable cause for a search, and that

evidence seized pursuant to the third search warrant must be suppressed as fruit of

the poisonous tree.          The State appealed.           Because we conclude that the first

affidavit provided an insufficient basis for a finding of probable cause, and that the

second affidavit was tainted by the illegality of the first search, we affirm the

suppression of the evidence obtained in the three searches.




    1
       It is unclear from the record if this affidavit referred to a separate burglary in Caribou, or if the
affiant mistakenly referred to Caribou instead of Limestone. The trial court did not address the apparent
discrepancy.
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                                         II. DISCUSSION

A.       Probable Cause

         [¶9] When the State appeals an order suppressing evidence, we directly

review the finding of probable cause made by the magistrate2 who issued the

warrant. State v. Crowley, 1998 ME 187, ¶ 3, 714 A.2d 834. Our inquiry is

limited to whether there is a substantial basis for the finding of probable cause.

State v. Diamond, 628 A.2d 1032, 1033 (Me. 1993). We must “give the affidavit a

positive reading and review the affidavit with all reasonable inferences that may be

drawn to support the magistrate’s determination.” State v. Higgins, 2002 ME 77,

¶ 20, 796 A.2d 50 (quotation marks omitted). Although we must test the affidavit

in a commonsense fashion, the test for probable cause is restricted to the four

corners of the affidavit. State v. Thornton, 414 A.2d 229, 233 (Me. 1980).

         [¶10] The magistrate must determine whether probable cause exists based

on the “totality of the circumstances” test adopted in Illinois v. Gates, 462 U.S. 213

(1983). Crowley, 1998 ME 187, ¶ 3, 714 A.2d 834. This test requires a practical,

commonsense determination whether, given all the circumstances set forth in the

affidavit, there is a fair probability that contraband or evidence of a crime will be


     2
      We clarify that only a judge or a justice of the peace may issue a search warrant pursuant to
M. R. Crim. P. 41(a). Traditionally, a person with less authority than a judge, but who had the authority
to issue search warrants, was referred to as a magistrate. See e.g. 15 M.R.S. § 55 (2012). Thus, although
much of our search and seizure precedent refers to the findings of a magistrate, we apply the same
principles to cases involving search warrants issued by a justice of the peace.
6

found in a particular place. Gates, 462 U.S. at 238. Further, the 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.

        [¶11] Here, the witnesses’ veracity is not a concern.3 The witnesses were

disinterested “citizen informants” whose accounts were not inherently unreliable.

See State v. Perrigo, 640 A.2d 1074, 1076 (Me. 1994.) However, even if we

accept the State’s contention that it was, in fact, Johndro’s car that the witnesses

observed in the vicinity of the crime scenes on the day the burglaries were

reported,4 the affidavit nevertheless fails to provide a substantial basis for a finding

of probable cause.

        [¶12] The affidavit provides no information about what items, if any, were

stolen during the burglaries. The State urges us to look to the proposed warrant,

which included a list of items to be seized as evidence of the crime of burglary.

The State argues that, because we must give the affidavit a commonsense review,

we should consider all of the materials that were presented to the justice of the


    3
      That Mahan received one witness’s statement from a third party is irrelevant to the probable cause
analysis under the “totality of the circumstances” test. Evidence that would be inadmissible at trial,
including hearsay, may properly be considered in evaluating whether probable cause exists. Draper v.
United States, 358 U.S. 307, 311-12 (1959); Brinegar v. United States, 338 U.S. 160, 172-73 (1949). See
also Illinois v. Gates, 462 U.S. 213, 241-242.
    4
      According to Mahan’s affidavit, the first witness described the vehicle he saw as “possibly” a tan
Dodge Intrepid, and indicated that he “felt” that the license plate number was 2196MD, which was similar
to, but did not match, Johndro’s license plate number. The search warrant indicates that Johndro’s 2002
Dodge Intrepid is silver.
                                                                                     7

peace as part of Mahan’s search warrant application. However, although a warrant

may incorporate an accompanying affidavit by reference, Groh v. Ramirez, 540

U.S. 551, 557-58 (2004), our inquiry when reviewing a finding of probable cause

is restricted to the four corners of the affidavit. Thornton, 414 A.2d at 233; State v.

Ruybal, 398 A.2d 407, 414 (Me. 1979); State v. Smith, 381 A.2d 1117, 1120 (Me.

1978).   Thus, the list of items in the proposed warrant cannot remedy the

affidavit’s failure to establish probable cause.

      [¶13] We recognize that “innocent behavior frequently will provide the

basis for a showing of probable cause.” Illinois v. Gates, 462 U.S. 213, 243 n.13

(1983). However, “[w]ithout a specific allegation of criminal activity to color the

noncriminal behavior described in [the] affidavit, there is no information from

which to conclude that evidence of criminal activity would be found at the time of

the search.” State v. Diamond, 628 A.2d 1032, 1034 (Me. 1993). Here, the

affidavit indicates that both witnesses saw a “suspicious car” in the area of the

burglarized homes around noon on the day the burglaries were discovered. It

provides no indication as to what time the burglaries occurred, or what time they

were reported. A vehicle being driven down the road in the middle of the day, and

even pulling in and out of several driveways, without more, is not a sufficient

nexus to criminal activity, notwithstanding the subjective feelings of the witnesses

who observed this behavior. This is not a case where innocent behavior is used to
8

corroborate an informant’s specific allegation of criminal activity. See Illinois v.

Gates, 462 U.S. at 243 n.13. Nothing in either the witnesses’ statements or

Mahan’s affidavit links the noncriminal behavior to the burglaries.

      [¶14] Johndro argues that it was improper for the justice of the peace to

consider his prior burglary convictions as part of the probable cause analysis. The

affidavit’s reference to Johndro’s convictions did not compromise the neutrality of

the justice of the peace.      Past criminal activity and interactions with law

enforcement provide background and are properly considered as part of the totality

of the circumstances.    State v. Estabrook, 2007 ME 130, ¶ 7, 932 A.2d 549.

Standing alone, however, this history would not give a prudent person reason to

believe that evidence of the burglaries would exist in Johndro’s home. Id.

      [¶15] This is especially true because there is no indication that Johndro was

the person driving the car near the crime scenes. According to the affidavit, one

witness observed that the operator was male; no further description was provided.

The affidavit’s failure to identify Johndro as the operator renders the weak

connection between the vehicle and Johndro’s home even more tenuous. The State

urges us to infer that a burglar who drives his car to the scene of a burglary will

almost certainly transfer stolen property from the car to his own residence. Even if

we accept that proposition, the State’s theory requires us to go one step further and
                                                                                    9

to assume that Johndro was the person who drove the car and committed the

burglaries. The basis for this assumption is simply lacking from the affidavit.

      [¶16] We are required to draw all reasonable inferences in favor of a finding

of probable cause. The inferences the State asks us to draw, however, are so

attenuated as to exceed the bounds of reasonableness.          We cannot say that

observation of a car driving in the vicinity of a crime scene gives rise to a fair

probability that evidence of that crime will be found inside the home of the car’s

registered owner. Accordingly, there is no substantial basis for the finding of the

justice of the peace that the affidavit demonstrated probable cause sufficient to

justify a search of Johndro’s home, car, and shed.

B.    The Good Faith Exception

      [¶17] The Fourth Amendment does not require suppression of evidence

seized pursuant to a facially valid warrant if officers relied on the warrant based on

an objectively reasonable belief in the existence of probable cause. United States

v. Leon, 468 U.S. 897, 926 (1984). An officer cannot manifest objective good faith

in relying on a search warrant based on an affidavit so lacking in indicia of

probable cause as to render belief in its existence entirely unreasonable.

Id. at 923 (quotation marks omitted).

      [¶18] In Diamond, we concluded that, because an affidavit based entirely on

noncriminal behavior contained no information from which to conclude that
10

evidence of criminal activity would be found at the time of the search, officers’

reliance on the warrant was not objectively reasonable. 628 A.2d at 1034. In that

case, a drug enforcement agent learned from the federal Drug Enforcement Agency

that a confidential source, whose information had already led to dozens of arrests

for indoor marijuana growing operations, had relayed that Diamond had received

four shipments from two companies identified as “A.G.S. Inc.” and “Light Mfg.”

Id. at 1033. The affidavit did not specify that the informant suspected these

companies of being suppliers of marijuana seeds or growing equipment.            Id.

Further investigation revealed that tax assessors had been denied access to the

inside of Diamond’s residence, and that Diamond’s monthly electricity use far

exceeded that of a typical residential customer. Id. at 1034. While conducting

surveillance in a heavily wooded area surrounding Diamond’s property, the agent

was accosted by two dogs, which came from and returned toward the direction of

Diamond’s house, apparently to alert Diamond to the presence of strangers. Id. A

justice of the peace issued a search warrant based on these facts, and agents seized

marijuana plants and indoor growing equipment from Diamond’s house the same

day. Id. at 1033. On these facts, we held not only that the affidavit failed to

establish probable cause, but also that the good faith exception did not apply. Id.

We concluded that reasonable judges could not disagree that the affidavit, based
                                                                                11

solely on noncriminal behavior, failed to establish probable cause, and that the

agent’s reliance on the warrant was not objectively reasonable. Id. at 1034.

      [¶19] That reasoning compels the same result here. Although the affidavit

indicates that two burglaries occurred, the only activity that could potentially be

linked to Johndro⎯his car having been seen driving in the area⎯is entirely

noncriminal and unsuspicious on its own. Moreover, there is no specific allegation

that Johndro, or anyone with ties to his residence, engaged in suspicious or

criminal activity. In Diamond, we characterized the affidavit as “bare bones,” id.

at 1034, even though it recited that the informant’s information had led to dozens

of arrests, id. at 1033. Similarly, the affidavit in this case is based entirely on

noncriminal behavior and fails to explain how such behavior provides a basis for

suspecting that evidence of the burglaries would be found in Johndro’s home or

vehicle.

      [¶20] Nothing in the record suggests that Mahan intended to mislead the

justice of the peace, or that any of the information in the affidavit was false.

However, an officer’s subjective good faith is not the appropriate inquiry. Because

nothing in the affidavit establishes a connection between the burglaries and

Johndro’s residence, officers’ reliance on the warrant was not objectively

reasonable.
12

C.    Fruit of the Poisonous Tree

      [¶21] The exclusionary rule applies to evidence obtained as a direct result of

an illegal search and seizure, as well as to evidence later discovered and found to

be derivative of an illegality. Segura v. United States, 468 U.S. 796, 804 (1984).

Illegally seized evidence need not be excluded if the connection between the illegal

police conduct and the discovery and seizure of the evidence is so attenuated as to

dissipate the taint. Id. at 805 (quotation marks omitted). However, any evidence

obtained through the exploitation of police illegality must be excluded as fruit of

the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 488 (1963).

      [¶22] The third warrant, which permitted officers to search Johndro’s house

again five days after the initial search, relied heavily on observations officers made

while executing the first warrant. Had officers not been illegally present inside of

Johndro’s home, they would not have observed the gold wristwatch matching the

description of a watch that had been stolen during a burglary. The third warrant

undoubtedly exploited information gleaned from the illegal search; therefore,

evidence seized pursuant to that warrant must be suppressed as well.

     The entry is:

                     Judgment affirmed.

____________________________________
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On the briefs:

        Todd R. Collins, District Attorney, and Kurt A. Kafferlin, Asst. Dist. Atty.,
        Prosecutorial District 8, Houlton, for appellant State of Maine

        Michael E. Carpenter, Esq., Houlton, for appellee Christopher J. Johndro


At oral argument:

        Kurt A. Kafferlin, Asst. Dist. Atty., for appellant State of Maine

        Michael E. Carpenter, Esq., for appellee Christopher J. Johndro



Aroostook County Superior Court docket number CR-2009-502
FOR CLERK REFERENCE ONLY
