Court denies claim to suppress evidence in marijuana-growing caseDefense attorney plans to appeal to law court
Rockland — A Hope resident facing drug charges has lost his bid for a motion to suppress evidence by a member of the Knox County Sheriff’s Office because of his alleged use of prescription drugs during a search and seizure operation.
Knox County Superior Court Justice Jeffrey Hjelm ruled June 15 that the defendant, Christian W. Neils, did not make a “substantial preliminary showing” for a hearing to make his claim.
Neils had contended that Maine Drug Enforcement Special Agent Kirk Guerrette, while conducting a search warrant for growing marijuana on the defendant’s property, provided evidence that was tainted because the agent himself was on medical prescriptions that might have affected his judgment.
"We were extremely disappointed in the outcome," said Auburn attorney Leonard Sharon, defense lawyer for Neils.
"It is obvious from Agent Guerrette's statements to investigators that he knew that his being the subject of an investigation into his drug seeking behavior made him a liability as to his credibility," said Sharon. "He said as much in an interview with one of the investigators."
Sharon said he believes that the judge who issued the search warrant should have been informed about the investigation and the nature of the investigation.
"It is only then that the judge who was the issuing authority could make a determination based upon the totality of the circumstances as to how much weight he should give to the credibility of the affiant here a law enforcement agent," he said.
"We definitely are determined to appeal the case to the law court," Sharon said, referring to the Maine Law Court.
Sharon cited the example of the recent federal case of Sen. Ted Stevens from Alaska where the federal government failed to disclose massive amounts of exculpatory information, causing the verdict to be overturned.
"We feel that the judiciary should be hyper vigilant and not permit persons involved in enforcing the law to sweep behavior such as Agent's Guerrette's under the rug. We are convinced that we made a proper and adequate showing after we spent days
on end reviewing the massive amounts of records provided to us," Sharon said.
"Mr. Neils will appeal this," he said. "We feel that we have both federal and state law squarely on our side."
Neils had presented two affidavits to support his claim. One was a large body of material connected with two official investigations of Guerrette, and the other a medical report by Daniel Filene, M.D., of Camden.
Hjelm wrote that part of the investigation based on materials from the Maine State Police and the Knox County Sheriff’s Office could not be considered because the statements by Guerrette were not made under oath. Hjelm explained that Guerrette’s statements were unsworn because he was "centrally involved" in an investigation of Neils and could not provide him with sworn statements.
Guerrette performed his work on the Neils case Sept. 21, 2010, when he received information from Detective Justin Twitchell, another investigator. Guerrette and Twitchell went into the woods behind the defendant’s residence and found several dozen marijuana plants and a greenhouse directly behind the home, according to Hjelm.
Guerrette also saw a path between the house and the location where he found the plants.
He believed the plants had been moved to the location in containers because they otherwise would not grow well in the area where he found them.
Neils does not challenge the evidence Guerrette found, but rather that he failed to disclose his own use of prescription drugs.
The defendant presented a medical report by Dr. Filene that explained Guerrette’s use of Ambien and its effects on him, Hjelm stated.
Dr. Filene explained that Guerrette had a prescription for the drug no later than early 2006 that he took for insomnia and agitation. By August 2009, Guerrette had stopped taking the prescription, more than a year before he investigated Neils.
Guerrette did start taking Lunesta in March 2010, but Filene found no meaningful discussion or concerns arising from Guerrette’s use of that drug, according to Hjelm.
Filene does not find that Guerrette omitted information that would bear on his reliability at the time or on the determination of probable cause.
In one statement, Guerrette said that on one instance he received 10 pills from a pharmacy in its parking lot on a Sunday. The pills were to be considered part of the next refill.
He also obtained a 30-day supply over the Internet.
He acknowledged to an investigator ”pills ruled his life.”
He said he was concerned about the effect the investigation would have on cases where he was involved as an investigator and on the prospect he or the prosecution would need to disclose to the defense.
The statements were made about a time remote from the investigation of Neils, Filene said, when Guerrette was taking Ambien, and it was not an issue in the case.
As a result, Guerrette’s own statements do not constitute a showing that Neils had to make in his claim, said Hjelm.
Neils had argued that records of Guerrette’s use of Lunesta justified a hearing. But the court found that Guerrette’s use of that drug ended a month before the investigation of Neils.
Filene also found that there was no evidence that Guerrette experienced the known side effects of the drug Lunesta.
Hjelm also found that the unsworn statements of the witnesses were not substantial proof and were not relevant.
Guerrette’s superiors would not assign him work at night, and Guerrette made the observations on Neils’ property during the day for the affidavit. Hjelm reiterated that Guerrette made his statement more than a year after he stopped taking Ambien.