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,	
8	

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	
