MAINE	SUPREME	JUDICIAL	COURT	 	          	     	    	      	      Reporter	of	Decisions	
Decision:	 2016	ME	126		
Docket:	   Ken-15-519	
Argued:	   June	8,	2016	    	      	     	     	    	      	
Decided:	  August	11,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                                       STATE	OF	MAINE	
                                                              	
                                                             v.	
                                                              	
                                                    FRANKLIN	F.	ARBOUR	JR.	
	
	
HUMPHREY,	J.	

           [¶1]	 	 Franklin	 Arbour	 Jr.	 appeals	 from	 a	 judgment	 of	 conviction	 for	

multiple	 drug	 offenses	 entered	 by	 the	 Superior	 Court	 (Kennebec	 County,	

E.	Walker,	 J.)	 following	 a	 jury	 trial.	 	 He	 contends	 that	 (1)	 the	 court	 erred	 by	

denying	his	motion	to	suppress	evidence	seized	pursuant	to	a	search	warrant;	

(2)	the	court	erred	by	denying	his	motion	to	suppress	a	statement	he	made	to	

a	 police	 officer	 before	 receiving	 Miranda	 warnings;	 and	 (3)	 the	 evidence	 of	

drug	quantity	at	trial	was	insufficient	to	support	his	conviction	for	aggravated	

trafficking	of	heroin.1		We	affirm	the	judgment.	




																																								 								
    1		We	are	unpersuaded	by,	and	do	not	discuss	further,	Arbour’s	claims	that	the	evidence	at	trial	

was	otherwise	insufficient	to	support	his	convictions,	that	the	court	erroneously	instructed	the	jury,	
and	that	he	is	entitled	to	a	new	trial	due	to	prosecutorial	misconduct.	
2	 	

                                  I.		BACKGROUND	

A.     Search	Warrant	

       [¶2]		On	September	17,	2014,	Augusta	police	sought	a	search	warrant	to	

conduct	a	search	at	an	apartment	located	at	58	River	Street	in	Augusta.		In	the	

affidavit	 accompanying	 the	 request	 for	 a	 search	 warrant,	 Detective	 Eric	 Dos	

Santos	offered	the	following	facts.		He	had	recently	arrested	John	Howard	on	

outstanding	 warrants	 and	 for	 a	 probation	 violation.	 	 While	 Howard	 was	

detained	at	the	county	jail	on	a	probation	violation	hold,	he	agreed	to	provide	

information	 regarding	 stolen	 tools	 found	 in	 his	 vehicle	 and	 other	 criminal	

activity;	the	detective	arranged	to	have	the	probation	hold	lifted	and	Howard	

released.		Howard	told	the	detective	that	he	had	sold	stolen	tools	for	Arbour;	

that	 Arbour	 sold	 stolen	 merchandise	 out	 of	 his	 residence	 on	 the	 top	 floor	 of	

58	River	 Street;	 that	 Howard	 had	 made	 multiple	 trips	 for	 Arbour	 from	 the	

apartment	 to	 sell	 or	 pawn	 stolen	 tools	 in	 Maine,	 New	 Hampshire,	 and	

Massachusetts;	and	that	he	would	receive	gas	money	and	heroin	from	Arbour	

in	exchange	for	selling	the	tools	for	him.		Howard	also	told	the	detective	that	

he	 would	 buy	 heroin	 from	 Arbour	 for	 his	 own	 use,	 and	 that	 Arbour	 usually	

had	“a	couple	of	bundles”	of	heroin—meaning	at	least	twenty	bags	of	heroin—

in	his	apartment	at	any	given	time.		Howard	also	described	an	air	compressor	
      	                                                                                                3	

that	 he	 had	 seen	 at	 Arbour’s	 apartment	 on	 his	 most	 recent	 visit,	 which	

Detective	Dos	Santos	noted	matched	the	description	of	a	compressor	that	was	

recently	reported	stolen	in	Augusta.		Finally,	Howard	provided	a	hand-drawn	

map	of	Arbour’s	apartment	and	indicated	that	not	only	were	there	stolen	tools	

in	 the	 apartment,	 but	 there	 was	 also	 a	 marijuana	 grow	 operation	 in	 the	

adjoining	 attic.	 	 The	 detective	 confirmed	 through	 a	 police	 database	 that	

Howard	 had	 sold	 tools	 to	 pawn	 shops	 in	 Maine,	 New	 Hampshire,	 and	

Massachusetts.	 	 The	 court	 (Augusta,	 E.	 Walker,	 J.)	 issued	 a	 search	 warrant	

authorizing,	 inter	 alia,	 a	 search	 of	 the	 apartment	 and	 the	 seizure	 of	 heroin,	

marijuana,	other	scheduled	drugs,	and	tools.2		

B.	        Execution	of	the	Search	Warrant	and	Arbour’s	Arrest	

	          [¶3]	 	 Viewed	 in	 the	 light	 most	 favorable	 to	 the	 jury’s	 verdict,	 the	

evidence	at	trial	establishes	the	following	facts.		State	v.	Robinson,	2016	ME	24,	

¶	 2,	 134	 A.3d	 828.	 	 On	 September	 17,	 2014,	 officers	 with	 the	 Augusta	 Police	

Department	 and	 the	 Maine	 Drug	 Enforcement	 Agency	 executed	 the	 search	

warrant	 at	 the	 top	 floor	 apartment	 at	 58	 River	 Street,	 which	 was	 known	 by	

police	to	be	the	residence	of	Arbour	and	his	girlfriend,	Angie	Sousa.		When	law	

enforcement	 arrived	 to	 execute	 the	 warrant,	 Sousa	 was	 the	 only	 person	
																																								 								
    2		The	attic	was	not	specifically	described	in	the	warrant,	but	this	issue	was	not	raised	before	the	

suppression	court	or	on	appeal.	
4	 	

present	in	the	apartment.		At	some	point,	Arbour	showed	up	at	the	apartment	

without	being	contacted	by	law	enforcement3	and	spoke	with	Detective	Jason	

Cote,	 who	 was	 in	 the	 apartment’s	 entry	 area.	 	 Arbour	 told	 Cote	 to	 “go	 ahead	

and	 arrest	 me	 now”	 and	 stated	 that	 his	 girlfriend,	 Sousa,	 “had	 nothing	 to	 do	

with	it.”4		Cote	placed	Arbour	under	arrest	and	notified	Dos	Santos,	who	was	

searching	 the	 attic	 at	 the	 time.	 	 Both	 detectives	 transported	 Arbour	 to	 the	

Augusta	 Police	 Department.	 	 At	 the	 police	 department	 and	 before	 receiving	

Miranda	 warnings,	 Arbour	 made	 an	 incriminating	 statement,	 which	 was	

recorded	by	an	interview	room	camera.		

           [¶4]	 	 During	 the	 search,	 the	 police	 found	 114	 marijuana	 plants	 and	

approximately	 twenty-five	 pounds	 of	 processed	 marijuana	 in	 the	 apartment	

and	the	adjoining	attic.		In	the	only	room	being	used	as	a	bedroom,	the	police	

found	several	items	that	would	likely	be	used	by	a	man,	as	well	as	a	debit	card	

in	 Arbour’s	 name,	 in	 the	 nightstand	 on	 the	 left-hand	 side	 of	 the	 bed.	 	 In	 the	

same	area,	the	police	also	found	a	thermos,	which	contained,	relevant	to	this	



																																								 								
    3		Evidence	presented	at	the	hearing	on	Arbour’s	motion	to	suppress	a	statement	he	later	made	

at	 the	 police	 department	 established	 that	 the	 police	 allowed	 Sousa	 to	 leave	 the	 apartment	 before	
Arbour	showed	up.		Sousa	was	later	arrested	and	charged	with	a	drug	offense.		

    4		At	the	hearing	on	Arbour’s	motion	to	suppress	his	later	statement,	Cote	testified	that,	without	

prompting,	 Arbour	 told	 him	 to	 “go	 ahead	 and	 arrest	 me	 now”	 and	 stated,	 “[my]	 girlfriend	 had	
nothing	to	do	with	this.”			
     	                                                                                                    5	

appeal,	1,252	packets	of	what	the	police	believed	to	be	heroin	and	a	sandwich	

bag	containing	what	appeared	to	be	cocaine	base.5		

C.         Charges	

           [¶5]	 	 On	 November	 14,	 2014,	 a	 grand	 jury	 returned	 an	 eight-count	

indictment	charging	Arbour	with	the	following:		

     • Aggravated	 trafficking	 of	 scheduled	 drugs	 (heroin)	 (Class	 A),	
        17-A	M.R.S.	§	1105-A(1)(H)	(2015);	
     • Aggravated	trafficking	of	scheduled	drugs	(heroin)	with	a	prior	
        conviction	(Class	A),	17-A	M.R.S.	§	1105-A(1)(B)(1)	(2015);	
     • Aggravated	 trafficking	 of	 scheduled	 drugs	 (cocaine/cocaine	
        base)	 with	 a	 prior	 conviction	 (Class	 A),	 17-A	 M.R.S.	
        §	1105-A(1)(B)(1);	
     • Unlawful	trafficking	in	scheduled	drugs	(cocaine/cocaine	base)	
        (Class	B),	17-A	M.R.S.	§	1103(1-A)(A)	(2015);	
     • Unlawful	 trafficking	 in	 scheduled	 drugs	 (marijuana)	 (Class	 C),	
        17-A	M.R.S.	§	1103(1-A)(F)	(2015);	
     • Aggravated	 cultivating	 of	 marijuana	 (Class	 B),	 17-A	 M.R.S.	
        §	1105-D(1)(A)(2)	(2015);	
     • Unlawful	 possession	 of	 scheduled	 drugs	 (cocaine	 base)	
        (Class	B),	17-A	M.R.S.	§	1107-A(1)(A)(2)	(2014);6	and	
     • Unlawful	 possession	 of	 scheduled	 drugs	 (heroin)	 (Class	 C),	
        17-A	M.R.S.	§	1107-A(1)(B)(1)	(2014).	
        	
Arbour	 pleaded	 not	 guilty	 to	 all	 charges	 at	 his	 arraignment	 on	

November	25,	2014.			


																																								 								
     5	 	 The	 thermos	 also	 contained	 approximately	 11.7	 grams	 of	 bk-MDEA	 (“bath	 salts”),	 and	 the	

police	found	stolen	tools	throughout	the	apartment.		

     6		Subsections	1107-A(1)(A)	and	(B)	have	since	been	amended.		See	P.L.	2015,	ch.	308,	§§	1,	2;	

P.L.	2015,	ch.	346,	§	6	(effective	Oct.	15,	2015).	
6	 	

D.         Motion	to	Suppress	Evidence	Seized	from	Apartment	

           [¶6]		Arbour	moved	to	suppress	all	evidence	seized	from	the	apartment,	

and	he	later	filed	a	supplemental	motion	for	a	Franks	hearing	pertaining	to	the	

search	warrant	affidavit.		See	Franks	v.	Delaware,	438	U.S.	154,	155-56	(1978).		

A	 hearing	 was	 held	 on	 May	 26,	 2015,	 and	 the	 court	 (Kennebec	County,	

Murphy,	J.)	denied	both	motions.7		In	its	ruling,	the	court	found	that	there	was	

a	 substantial	 basis	 for	 the	 finding	 of	 probable	 cause	 supporting	 the	 warrant	

because	 (1)	 the	 information	 provided	 by	 Howard	 as	 related	 in	 the	 affidavit	

was	 very	 specific;	 (2)	 Howard	 demonstrated	 a	 base	 of	 knowledge	 from	 his	

criminal	exploits	with	Arbour;	(3)	Howard’s	credibility	was	supported	by	his	

statements	against	penal	interest	regarding	his	use	and	possession	of	heroin;	

and	(4)	his	credibility	was	further	bolstered	by	the	corroborating	information	

regarding	 his	 selling	 of	 tools	 and	 his	 description	 of	 an	 air	 compressor	 in	 the	

apartment.			




																																								 								
     7		The	court	denied	the	motion	for	a	Franks	hearing	because	it	found	that	the	search	warrant	was	

supported	 by	 probable	 cause	 even	 without	 considering	 the	 statement	 in	 the	 affidavit	 that	 would	
have	 been	 the	 subject	 of	 the	 Franks	 hearing.	 	 See	 State	 v.	 Torrey,	 1998	 ME	 5,	 ¶	 4,	 704	 A.2d	 397.		
Arbour	does	not	challenge	this	aspect	of	the	court’s	decision	on	this	appeal.	

     	
     	                                                                                   7	

E.       Motion	to	Suppress	Statement	at	Police	Department	

         [¶7]	 	 Arbour	 also	 moved	 to	 suppress	 a	 statement	 he	 made	 in	 the	

interview	room	at	the	police	department	before	receiving	Miranda	warnings.		

On	 July	 23,	 2015,	 the	 court	 held	 a	 testimonial	 hearing	 on	 the	 motion.		

Detectives	Cote	and	Dos	Santos	testified,	and	the	court	watched	the	interview	

room	 video.	 	 In	 an	 order	 dated	 July	 24,	 2015,	 the	 court	 (Augusta,	 Fowle,	 J.)	

denied	Arbour’s	motion.			

         [¶8]		The	court	found	the	following	facts,	which	are	supported	by	record	

evidence.		See	State	v.	Lovett,	2015	ME	7,	¶	3,	109	A.3d	1135.		At	some	point	

between	 the	 time	 when	 Arbour	 was	 arrested	 at	 the	 apartment	 and	 when	 he	

made	 the	 statement	 in	 question	 at	 the	 police	 department,	 Dos	 Santos	 was	

informed	 that	 Arbour	 had	 asked	 to	 be	 arrested	 upon	 his	 arrival	 at	 the	

apartment.		After	Arbour	was	taken	to	the	police	department,	he	was	put	in	an	

interview	 room.	 	 He	 was	 alone	 in	 the	 room	 for	 approximately	 two	 minutes,	

handcuffed	behind	his	back.		Detective	Dos	Santos	entered	the	room	and	spent	

less	than	two	minutes	“describing	what	had	occurred	that	day,”	including	that	

Sousa,	Arbour’s	girlfriend,	had	been	arrested	and	charged	with	drug	offenses.		
8	 	

Arbour	then	stated,	“She	had	nothing	to	do	with	it.		It’s	all	me.”8		At	that	point,	

the	detective	instructed	Arbour	to	not	make	any	further	statements,	finished	

explaining	 what	 had	 occurred	 that	 day,	 and	 then	 provided	 him	 with	 the	

warnings	required	by	Miranda	v.	Arizona,	384	U.S.	436	(1966).		After	Arbour	

invoked	his	right	to	remain	silent,	the	detective	terminated	the	interaction.			

           [¶9]	 	 Based	 on	 its	 findings,	 the	 court	 concluded	 that	 Arbour	 was	 not	

subjected	 to	 custodial	 interrogation	 at	 the	 time	 he	 made	 his	 incriminating	

statement	because	“the	actions	of	Detective	Dos	Santos	in	providing	[Arbour]	

with	a	summary	of	the	evidence	against	him,	and	information	as	to	the	status	

of	Ms.	Sousa,	[does	not]	constitut[e]	a	statement	reasonably	likely	to	elicit	an	

incriminating	response,	nor	was	such	a	statement	calculated	to	do	so.”			

F.         Trial	

           [¶10]		A	two-day	trial	commenced	on	August	24,	2015.		The	jury	viewed	

the	relevant	portion	of	the	interview	room	video.		Arbour	presented	evidence	

to	suggest	that	he	and	Sousa	were	merely	housesitting	at	the	apartment	for	an	

incarcerated	friend,	that	multiple	people	had	access	to	the	apartment,	and	that	

he	 was	 not	 responsible	 for	 the	 drugs.	 	 He	 moved	 for	 a	 judgment	 of	 acquittal	


																																								 								
     8		Although	the	court	found	that	Arbour	had	stated,	“She	had	nothing	to	do	with	it,”	or	“She	had	

nothing	to	do	with	this,”	the	video	appears	to	show	that	Arbour	actually	said,	“She	had	nothing	to	do	
with	any	of	it.”		For	accuracy,	we	use	the	latter	version	in	the	remainder	of	this	opinion.	
      	                                                                                                           9	

based	on	insufficiency	of	the	evidence	at	the	close	of	the	State’s	case-in-chief	

and	 again	 at	 the	 close	 of	 trial.	 	 The	 court	 (Kennebec	 County,	 E.	 Walker,	J.)	

denied	 both	 motions.	 	 Six	 counts	 went	 to	 the	 jury,9	 and	 the	 jury	 returned	

verdicts	of	guilty	on	all	counts.		Arbour	moved	for	a	judgment	of	acquittal	or	a	

new	 trial,	 and	 the	 court	 denied	 the	 motion	 after	 a	 hearing	 on	

October	14,	2015.		The	court	sentenced	Arbour	to	twenty-five	years	in	jail	on	

Count	 1,	 with	 all	 but	 eighteen	 years	 suspended,	 and	 four	 years’	 probation,	

with	concurrent	sentences	on	all	other	charges.		Arbour	timely	appealed	to	us	

from	both	the	conviction	and	his	sentence.10			

                                                    II.		DISCUSSION	

A.	        Motion	to	Suppress	Evidence	Seized	from	Apartment	

           [¶11]		Arbour	first	contends	that	the	court	erred	by	denying	his	motion	

to	 suppress	 evidence	 because	 the	 affidavit	 in	 support	 of	 the	 search	 warrant	

did	 not	 establish	 probable	 cause.	 	 Specifically,	 he	 argues	 that	 the	 affidavit	

“fail[ed]	to	set	forth	sufficient	information	establishing	[Howard]’s	veracity	or	

reliability.”			

																																								 								
    9	 	 Arbour	 stipulated	 to	 the	 prior	 conviction	 alleged	 in	 Counts	 2	 and	 3	 of	 the	 indictment.	 	 The	

court,	 with	 agreement	 of	 the	 parties,	 consolidated	 Counts	 1	 and	 2	 of	 the	 indictment	 into	 a	 single	
count	and	Counts	3	and	4	into	a	second	count	to	submit	to	the	jury.		

    10	
    	 The	 Sentence	 Review	 Panel	 denied	 Arbour’s	 request	 for	 leave	 to	 appeal	 his	 sentence	 on	
December	17,	2015.			
10	 	

        [¶12]	 	 We	 “review	 directly	 the	 finding	 of	 probable	 cause	 made	 by	 the	

[judge]	 who	 issued	 the	 warrant,	 affording	 great	 deference	 to	 the	 issuing	

[judge],”	 State	 v.	 Wright,	 2006	 ME	 13,	 ¶	 8,	 890	 A.2d	 703,	 and	 we	 “draw	 all	

reasonable	 inferences	 from	 the	 affidavit	 to	 support	 the	 finding	 of	 probable	

cause	.	.	.	limit[ing]	our	inquiry	to	whether	there	is	a	substantial	basis	for	the	

finding	of	probable	cause	under	the	totality	of	the	circumstances	test,”		State	v.	

Estabrook,	2007	ME	130,	¶	5,	932	A.2d	549.		Pursuant	to	that	test,	“[p]robable	

cause	is	established	when,	given	all	the	circumstances	set	forth	in	the	affidavit	

before	 [the	 judge],	 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.”	 	 State	 v.	 Rabon,	

2007	ME	 113,	 ¶	 22,	 930	 A.2d	 268	 (quotation	 marks	 omitted).	 	 “When	 a	

warrant	 affidavit	 reports	 information	 provided	 by	 an	 informant	 .	 .	 .	 the	

totality-of-the-circumstances	approach	permits	a	balanced	assessment	of	the	

relative	 weights	 of	 all	 the	 various	 indicia	 of	 reliability	 (and	 unreliability)	

attending	[the]	informant’s	tip.”		Id.	¶	23	(quotation	marks	omitted).			

        [¶13]		An	informant’s	assertions,	on	their	own,	may	establish	probable	

cause	 if	 the	 affidavit	 demonstrates	 the	 informant’s	 reliability	 or	 basis	 of	

knowledge,	such	as	firsthand	observation	of	contraband	or	illegal	activity.		See	
    	                                                                              11	

id.	¶	24;	see	also	United	States	v.	Taylor,	985	F.2d	3,	6	(1st	Cir.	1993)	(“[T]he	

affidavit	 may	 disclose	 an	 adequate	 basis	 for	 evaluating	 the	 informant’s	

veracity	 through	 the	 very	 specificity	 and	 detail	 with	 which	 it	 relates	 the	

informant’s	first-hand	description	of	the	place	to	be	searched	or	the	items	to	

be	seized.”).		In	addition,	an	informant’s	credibility	is	bolstered	if	the	affidavit	

contains	statements	against	his	or	her	penal	interest,	even	if	the	informant	is	

from	 the	 “criminal	 milieu.”	 	 See	 Rabon,	 2007	ME	113,	 ¶	28,	 930	 A.2d	 268	

(quotation	 marks	 omitted);	 see	 also	 State	 v.	 Appleton,	 297	 A.2d	 363,	 369	

(Me.	1972).	 	 Even	 without	 sufficient	 information	 about	 the	 informant,	 an	

informant’s	assertions	can	still	support	probable	cause	if	the	affidavit	contains	

“something	 more,”	 such	 as	 corroboration	 by	 outside	 sources.	 	 Rabon,	

2007	ME	113,	¶¶	29-30,	930	A.2d	268	(quotation	marks	omitted).	

	       [¶14]		In	this	case,	the	affidavit	(1)	provided	detailed	information	about	

the	 named	 informant,	 Howard,	 and	 explained	 how	 he	 had	 come	 to	 directly	

observe	 contraband	 in	 the	 apartment;	 and	 (2)	 noted	 that	 Howard	 had	

provided	 highly	 specific	 information,	 including	 a	 hand-drawn	 map	 of	 the	

apartment.	 	 The	 affidavit	 also	 contained	 statements	 by	 Howard	 against	 his	

penal	 interest.	 	 Furthermore,	 the	 police	 corroborated	 Howard’s	 assertions	

that	he	had	pawned	or	sold	tools	as	he	described	and	that	he	had	observed	a	
12	 	

possibly	 stolen	 air	 compressor	 in	 the	 apartment.	 	 In	 these	 ways,	 this	 case	

differs	 from	 Rabon,	 in	 which	 we	 concluded	 that	 the	 affidavit	 provided	

insufficient	 information	 about	 the	 informant	 and	 that	 the	 police	 had	 only	

corroborated	 “readily	 available	 information”	 that	 did	 not	 “show	 that	 the	

tipster	 has	 knowledge	 of	 concealed	 criminal	 activity,”	 2007	 ME	 113,	 ¶	 34,	

930	A.2d	 268	 (quotation	 marks	 omitted);	 unlike	 the	 informant	 in	 Rabon,	

Howard	provided	“inside	information”	about	criminal	activity	and	contraband	

in	the	apartment.		See	id.	(quotation	marks	omitted).	

	          [¶15]	 	 The	 fact	 that	 the	 affidavit	 contains	 information	 that	 Howard’s	

criminal	 history	 involves	 convictions	 for	 crimes	 of	 dishonesty,	 and	 that	 the	

police	arranged	for	Howard	to	be	released	from	incarceration	on	a	probation	

hold	 before	 he	 provided	 them	 with	 information,	 may	 be	 considered	 when	

conducting	 the	 “balanced	 assessment”	 of	 the	 factors	 supporting	 or	

undercutting	 the	 informant’s	 tip.	 	 See	 id.	 ¶	 23	 (quotation	 marks	 omitted).		

However,	 given	 the	 information	 in	 the	 affidavit	 unrelated	 to	 Howard,11	 and	

the	 deference	 that	 must	 be	 shown	 to	 the	 judge	 who	 issued	 the	 warrant,	 see	
																																								 								
    11		In	addition	to	recounting	the	information	provided	by	Howard,	the	affidavit	stated	that	Dos	

Santos	had	looked	up	Arbour’s	criminal	record	and	found	that	he	had	previously	been	convicted	of	
drug	crimes	and	dealing	in	stolen	property,	among	other	offenses.		“An	affiant’s	knowledge	of	the	
target’s	 prior	 criminal	 activity	 or	 record	 clearly	 is	 material	 to	 the	 probable	 cause	 determination.”		
United	States	v.	Taylor,	985	F.2d	3,	6	(1st	Cir.	1993);	see	also	State	v.	Gallant,	531	A.2d	1282,	1284	
(Me.	1987)	(considering	a	target’s	prior	conviction	for	drug	trafficking	in	assessing	whether	there	
was	probable	cause	for	a	search	warrant).		
      	                                                                                                         13	

Wright,	 2006	 ME	 13,	 ¶	 8,	 890	 A.2d	 703,	 Howard’s	 criminal	 history	 and	 the	

benefit	he	received	from	the	police	do	not	negate	probable	cause.	

	          [¶16]		We	conclude	that	there	was	a	substantial	basis	for	the	finding	of	

probable	cause	to	issue	the	search	warrant	and	that	the	suppression	court	did	

not	err	by	denying	Arbour’s	motion	to	suppress	the	evidence	seized	from	the	

apartment.12	

B.	        Motion	to	Suppress	Statement	at	Police	Department	

	          [¶17]		Arbour	next	contends	that	the	court	erred	by	denying	his	motion	

to	suppress	his	statement	that	Sousa	“had	nothing	to	do	with	any	of	it,	it’s	all	

me,”	 which	 he	 made	 to	 Dos	 Santos	 at	 the	 Augusta	 Police	 Department	 before	

receiving	 Miranda	 warnings.	 	 He	 argues	 in	 part	 that	 he	 was	 subjected	 to	

interrogation	at	the	time	he	made	the	statement	because	the	detective	knew	

that,	 by	 providing	 Arbour	 with	 information	 about	 the	 evidence	 against	 him	

and	 the	 charges	 against	 Sousa,	 he	 was	 likely	 to	 elicit	 an	 incriminating	

response	 based	 on	 the	 fact	 that	 Arbour	 had	 already	 made	 an	 incriminating	

statement	at	the	apartment.13		


																																								 								
    12		Because	we	conclude	that	there	was	a	substantial	basis	for	the	finding	of	probable	cause	to	

issue	the	search	warrant,	we	do	not	consider	the	State’s	alternative	“good	faith”	argument.	
   	
   13		Arbour	does	not	directly	argue	that	the	detective	was	trying	to	play	upon	Arbour’s	personal	

relationship	 with	 Sousa.	 	 Arbour’s	 contention	 that	 the	 “highly	 custodial	 environment”	 of	 the	
interview	 room	 should	 factor	 into	 our	 analysis	 in	 this	 case	 is	 not	 supported.	 	 See	 Rhode	 Island	 v.	
14	 	

           [¶18]	 	 We	 review	 the	 court’s	 factual	 findings	 for	 clear	 error	 and	 “the	

ultimate	 determination	 of	 whether	 the	 statement	 should	 be	 suppressed”	 de	

novo.	 	 State	 v.	 Bragg,	 2012	 ME	 102,	 ¶	 8,	 48	 A.3d	 769	 (quotation	 marks	

omitted).		The	State	concedes	that	Arbour	was	in	custody	at	the	time	he	made	

the	statement,	and	the	basic	facts	are	not	in	dispute.		Therefore,	we	must	only	

consider	whether	the	court	erred	by	concluding	that	Arbour	was	not	subject	

to	interrogation	at	the	time	he	made	the	statement	at	issue.	

           [¶19]	 	 “A	 person	 subject	 to	 interrogation	 while	 in	 police	 custody	 must	

first	be	given	a	Miranda	warning,	otherwise	statements	made	in	the	course	of	

the	 interrogation	 will	 not	 be	 admissible	 against	 that	 person.”	 	 State	 v.	

Holloway,	 2000	ME	 172,	 ¶	 13,	 760	 A.2d	 223.	 	 Interrogation,	 in	 this	 context,	

“refers	 not	 only	 to	 express	 questioning,	 but	 also	 to	 any	 words	 or	 actions	 on	

the	 part	 of	 the	 police	 (other	 than	 those	 normally	 attendant	 to	 arrest	 and	

custody)	 that	 the	 police	 should	 know	 are	 reasonably	 likely	 to	 elicit	 an	

incriminating	response	from	the	suspect.”		Rhode	Island	v.	Innis,	446	U.S.	291,	

301	(1980).14		“The	test	for	determining	whether	a	police	officer’s	statement	is	

																																								 																																								 																																								 																														 	
Innis,	 446	 U.S.	 291,	 300	 (1980)	 (“‘Interrogation,’	 as	 conceptualized	 in	 the	 Miranda	 opinion,	 must	
reflect	a	measure	of	compulsion	above	and	beyond	that	inherent	in	custody	itself.”).	
   14	 	 Although	 Dos	 Santos	 testified	 at	 the	 suppression	 hearing	 that	 it	 is	 his	 practice	 to	 inform	 an	

arrestee	of	the	charges	and	evidence	against	him	or	her,	his	statements	to	Arbour	likely	were	not	
communications	 “normally	 attendant	 to	 arrest	 and	 custody,”	 which	 always	 fall	 outside	 the	
definition	of	“interrogation”	for	purposes	of	Miranda,	Innis,	446	U.S.	at	301,	such	as	“[b]rief,	routine	
     	                                                                                                                                               15	

the	 functional	 equivalent	 of	 interrogation	 reasonably	 likely	 to	 elicit	 an	

incriminating	response	is	an	objective	one.”		State	v.	Smith,	612	A.2d	231,	233	

(Me.	 1992).	 	 “Officers	 do	 not	 interrogate	 a	 suspect	 simply	 by	 hoping	 that	 he	

will	 incriminate	 himself,”	 and	 ordinarily,	 there	 is	 no	 interrogation	 in	 the	

absence	of	direct	questioning	unless	the	defendant	is	subjected	to	“compelling	

influences	 [or]	 psychological	 ploys.”	 	 Arizona	 v.	 Mauro,	 481	U.S.	520,	 529	

(1987).		The	overriding	consideration	“[i]n	deciding	whether	particular	police	

conduct	 is	 interrogation	 [is]	 preventing	 government	 officials	 from	 using	 the	

coercive	nature	of	confinement	to	extract	confessions	that	would	not	be	given	

in	an	unrestrained	environment.”		Id.	at	529-30.	

	          [¶20]	 	 We	 have	 specifically	 recognized	 that	 the	 “Innis	 definition	 of	

interrogation	 is	 not	 so	 broad	 as	 to	 capture	 within	 Miranda’s	 reach	 all	

declaratory	statements	by	police	officers	concerning	the	nature	of	the	charges	

against	the	suspect	and	the	evidence	relating	to	those	charges.”		Bragg,	2012	

ME	102,	¶	16,	48	A.3d	769	(quotation	marks	omitted).		In	Bragg,	after	taking	

an	 intoxilyzer	 test	 and	 being	 informed	 that	 her	 results	 were	 over	 the	 legal	

limit,	 the	 defendant	 “responded	 [to	 the	 police	 officer]	 that	 she	 had	 thought	

when	she	ordered	the	second	margarita	at	dinner	it	was	probably	a	bad	idea.”		
																																								 																																								 																																								 																														 	
questions	posed	to	a	suspect	during	‘booking’	procedures,”	State	v.	Estes,	418	A.2d	1108,	1111	(Me.	
1980)	(alteration	in	original)	(quotation	marks	omitted).	
16	 	

Id.	¶	6.		We	concluded	that	the	officer	had	merely	provided	“a	matter-of-fact	

communication	 of	 the	 evidence”	 and	 that	 this	 communication	 was	 not	 the	

functional	 equivalent	 of	 interrogation.	 	 Id.	 ¶	 16	 (quotation	 marks	 omitted).		

Although	we	suggested	that	our	conclusion	was	based	to	some	extent	on	the	

fact	that	the	defendant	was	entitled	to	the	intoxilyzer	test	information	under	

state	 law,	 we	 also	 cited	 with	 approval	 other	 cases	 reaching	 broader	

conclusions.		Id.	

        [¶21]		For	example,	we	cited	Caputo	v.	Nelson,	455	F.3d	45,	50-51	(1st	

Cir.	 2006),	 in	 which	 the	 United	 States	 Court	 of	 Appeals	 for	 the	 First	 Circuit	

determined	that	a	police	officer	had	not	engaged	in	the	functional	equivalent	

of	 interrogation	 by	 using	 the	 defendant’s	 phone	 in	 his	 presence	 “to	 relay	

information	 about	 what	 the	 officers	 found	 at	 [the	 defendant]’s	 residence”	 to	

other	 officers.	 	 Bragg,	 2012	ME	 102,	 ¶	 16,	 48	 A.3d	 769.	 	 In	 discussing	 the	

limits	 of	 Innis’s	 conception	 of	 “interrogation,”	 the	 Caputo	 court	 approvingly	

cited	Plazinich	v.	Lynaugh,	843	F.2d	836,	837,	839	(5th	Cir.	1988),	in	which	the	

Fifth	 Circuit	 concluded	 that	 an	 officer	 did	 not	 interrogate	 a	 defendant	 by	

informing	him	that	his	co-defendant	had	attempted	suicide.		Caputo,	455	F.3d	

at	51.		In	Bragg,	we	also	cited	Easley	v.	Frey,	433	F.3d	969,	971,	974	(7th	Cir.	

2006),	 in	 which	 the	 Seventh	 Circuit	 held	 that	 an	 investigator	 had	 not	
    	                                                                               17	

“interrogated”	 a	 defendant	 when	 he	 told	 the	 defendant	 about	 evidence	

implicating	him	in	a	prison	murder	and	informed	him	that	he	could	be	subject	

to	the	death	penalty	if	convicted.		Bragg,	2012	ME	102,	¶	16,	48	A.3d	769.		The	

Easley	 court	 noted	 that	 there	 was	 no	 evidence	 that	 the	 investigator’s	

statements	 were	“anything	 more	 than	 a	 matter-of-fact	 communication	 of	 the	

evidence	against	[the	defendant]	and	the	potential	punishment	he	faced”	and	

stated,	 “[W]e	 do	 not	 believe	 that	 the	 provision	 of	 information,	 even	 if	 its	

weight	 might	 move	 a	 suspect	 to	 speak,	 amounts	 to	 an	 impermissible	

‘psychological	ploy.’”		Easley,	433	F.3d	at	974	(quotation	marks	omitted).	

	       [¶22]	 	 Taken	 together,	 our	 opinion	 in	 Bragg	 and	 the	 cases	 we	 cited	

approvingly	stand	for	the	proposition	that	informing	a	person	of	the	evidence	

against	him,	and	of	a	co-defendant’s	status,	does	not	constitute	interrogation	

in	 the	 absence	 of	 evidence	 that	 the	 person	 was	 subjected	 to	 “compelling	

influences,”	or	that	the	communication	was	a	“psychological	ploy,”	see	Mauro,	

481	U.S.	at	529,	to	elicit	an	incriminating	response.		See	Innis,	446	U.S.	at	299	

(describing	 “psychological	 ploys”	 as	 including	 positing	 the	 subject’s	 guilt,	

minimizing	 the	 moral	 seriousness	 of	 the	 crime,	 and	 casting	 blame	 on	 the	

victim	or	others).		In	this	case,	there	is	no	evidence	of	compelling	influences	or	

that	 the	 detective	 was	 engaging	 in	 a	 “psychological	 ploy”	 to	 elicit	 an	
18	 	

incriminating	 statement	 from	 Arbour.	 	 Rather,	 the	 evidence	 supports	 the	

court’s	findings	that	the	detective	could	recall	knowing	only	that	Arbour	had	

previously	asked	to	be	arrested—not	that	he	had	previously	made	a	statement	

deflecting	responsibility	from	Sousa;	that	the	detective	provided	Arbour	only	

“with	a	brief	summary	as	to	what	had	occurred	and	what	evidence	had	been	

seized”;	 that	 Arbour	 “was	 not	 invited	 to	 or	 encouraged	 to	 respond”;	 that	 the	

detective	 stopped	 Arbour	 from	 making	 any	 further	 statements;	 and	 that	 he	

“quickly	ended	any	communication”	with	Arbour	once	he	invoked	his	Miranda	

rights.		We	conclude	that	Arbour	was	not	subject	to	interrogation	at	the	time	

he	made	his	statement	and	therefore	that	the	court	did	not	err	by	denying	his	

motion	to	suppress.15		

C.	        Heroin	Quantity	

           [¶23]		Finally,	Arbour	challenges	the	sufficiency	of	the	evidence	of	drug	

quantity	 supporting	 his	 conviction	 for	 aggravated	 trafficking	 of	 heroin.		

Because	 Arbour	 stipulated	 to	 a	 prior	 drug	 conviction,	 the	 State	 had	 to	 prove	

beyond	 a	 reasonable	 doubt	 that	 he	 intentionally	 or	 knowingly	 possessed	
																																								 								
      15		We	note	that	“[a]ny	knowledge	the	police	may	have	had	concerning	the	unusual	susceptibility	

of	 a	 defendant	 to	 a	 particular	 form	 of	 persuasion	 might	 be	 an	 important	 factor	 in	 determining	
whether	the	police	should	have	known	that	their	words	or	actions	were	reasonably	likely	to	elicit	
an	 incriminating	 response	 from	 the	 suspect.”	 	 Innis,	 446	 U.S.	 at	 302	 n.8	 (emphasis	 added).		
However,	 it	 would	 be	 difficult	 to	 conclude	 that	 the	 detective	 was	 aware	 of	 any	 “unusual	
susceptibility”	 of	 Arbour	 to	 incriminate	 himself	 merely	 based	 on	 the	 knowledge	 that	 Arbour	 had	
asked	to	be	arrested	at	the	apartment.		
    	
   	                                                                                  19	

“6	grams	or	more	or	270	or	more	individual	bags,	folds,	packages,	envelopes	

or	 containers	 of	 any	 kind	 containing	 heroin.”	 	 17-A	 M.R.S.	 §	1105-A(1)(H),	

(1)(B)(1);	see	also	17-A	M.R.S.	§	1103(1-A)	(2015)	(providing	that	“a	person	is	

guilty	of	unlawful	trafficking	in	a	scheduled	drug	if	the	person	intentionally	or	

knowingly	 trafficks	 in	 what	 the	 person	 knows	 or	 believes	 to	 be	 a	 scheduled	

drug,	 which	 is	 in	 fact	 a	 scheduled	 drug”);	 17-A	 M.R.S.	 §	1101(17)(E)	 (2015)	

(defining	“traffick”	to	include	“possess[ing]	2	grams	or	more	of	heroin	or	90	or	

more	 individual	 bags,	 folds,	 packages,	 envelopes	 or	 containers	 of	 any	 kind	

containing	heroin”).	

       [¶24]	 	 At	 trial,	 the	 State	 presented	 evidence	 that	 1,252	 packets	 seized	

from	 the	 apartment	 had	 the	 characteristics	 of	 heroin	 packaging	 and	 that	 a	

certified	 chemist	 confirmed	 that	 five	 randomly	 chosen	 packets	 contained	

heroin.	 	 The	 chemist	 further	 testified	 he	 could	 make	 the	 “common	 sense	

inference”	 that	 the	 other	 packets	 also	 contained	 heroin,	 even	 if	 he	 could	 not	

make	 a	 “scientific	 inference”	 to	 that	 effect.	 	 We	 conclude	 that	 this	 evidence	

was	sufficient	for	the	jury	to	find	beyond	a	reasonable	doubt	that	270	or	more	

of	 the	 packets	 seized	 from	 the	 apartment	 contained	 heroin.	 	 See	 State	 v.	

Barnard,	2001	ME	80,	¶	12,	772	A.2d	852	(holding	that	even	“[i]n	the	absence	

of	 a	 chemical	 analysis,	 other	 direct	 and	 circumstantial	 evidence,”	 including	
20	 	

testimony	 by	 an	 experienced	 drug	 agent	 as	 to	 the	 appearance	 of	 substances	

believed	to	be	drugs,	“can	establish	beyond	a	reasonable	doubt	the	identity	of	

drugs”).	

        [¶25]		Arbour’s	suggestion	that	our	recent	decision	in	State	v.	Pinkham,	

2016	ME	59,	137	A.3d	203,	affects	his	conviction	is	incorrect.		In	Pinkham,	we	

vacated	a	heroin	trafficking	conviction	where	the	defendant	pleaded	guilty	to	

trafficking	“2	grams	or	more	of	heroin”	but	the	State	did	not	present	evidence	

sufficient	to	show	that	the	defendant	trafficked	“pure”	heroin	in	that	amount.		

Pinkham,	 2016	 ME	 59,	 ¶¶	 3,	 8,	 23,	 137	 A.3d	 203.	 	 In	 this	 case,	 by	 contrast,	

Arbour	was	convicted	of	trafficking	heroin	in	a	quantity	of	“6	grams	or	more	

or	270	or	more	individual	bags,	folds,	packages,	envelopes	or	containers	of	any	

kind	containing	heroin.”		Because	the	State	was	not	required	to	prove	that	the	

packets	 contained	 a	 certain	 amount	 of	 pure	 heroin,	 Pinkham	 does	 not	 apply.		

See	id.	¶	15.	

D.	     Conclusion	

	       [¶26]		For	the	foregoing	reasons,	we	affirm	the	judgment.	

        The	entry	is:	

                      Judgment	affirmed.		
	
	
	
    	                                                                        21	

	     	      	      	       	     	
	
On	the	briefs:	
	
      Luann	 L.	 Calcagni,	 Esq.,	 Augusta,	 for	 appellant	 Franklin	 F.	
      Arbour,	Jr.	
      	
      Janet	T.	Mills,	Attorney	General,	and	Katie	Sibley,	Asst.	Atty.	
      Gen.,	 Office	 of	 the	 Attorney	 General,	 Augusta,	 for	 appellee	
      State	of	Maine	
	
	
At	oral	argument:	
	
      Luann	L.	Calcagni,	Esq.,	for	appellant	Franklin	F.	Arbour,	Jr.	
      	
      Katie	Sibley,	Asst.	Atty.	Gen.,	for	appellee	State	of	Maine	
	
	
	
Kennebec	County	Superior	Court	docket	number	CR-2014-958	
FOR	CLERK	REFERENCE	ONLY	
	
