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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

UNITED STATES OF AMERICA

v. JOHN B. STEWART, Defendant Gene Carter, District Judge

Criminal No. 01-62-P-C

MEMORANDUM OF DECISION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS In this case, the agents applied for, and were issued, two search warrants for Defendant John B. Stewart's home. The agents conducted the searches of Defendant's home approximately one month apart, on June 18, 2001, and July 12, 2001. Now before the Court is Defendant's Omnibus Motion (Docket No. 9) that requests, among other things, a Franks hearing, suppression of physical evidence seized at Defendant's residence.1 The Court held evidentiary hearings on these issues on September 28 and October 24, 2001. In his motion, Defendant contends that the affidavits presented to the reviewing judges in application for both search warrants were deficient in that they omitted some negative facts about the individuals providing information contained in the affidavits and that the affidavits failed to establish the confidential informants' reliability. The Government agreed that the Court should hold a Franks hearing, but opposes the suppression of
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In addition, Defendant's original motion asserts that any post-arrest statements he made should be suppressed. See Memorandum in Support of Defendant's Pre-Trial Motions (Docket No. 9) at 17-20. Defendant withdrew this claim in his reply brief. See Defendant's Letter Reply (Docket No. 19) n.1.

any of the evidence seized. I. FIRST SEARCH WARRANT A. Facts Relevant to June Search Warrant Application Carl Creamer was stopped and arrested on April 2, 2001, while in possession of ten ounces of cocaine and a loaded handgun. Tr. 1 at 6. 2 The stop and arrest occurred after Creamer's physician called the police reporting that he believed that Creamer was in possession of a firearm and had threatened to kill his wife. Tr. 1 at 7, 19-21. In addition, Creamer's physician told police that he believed that Creamer was "psychotic." Tr. 1 at 19. After apprehending Creamer, state police were sufficiently concerned about Creamer's mental health that, instead of taking Creamer to jail, they took him to Southern Maine Medical Center. Tr. 1 at 8. Creamer remained in the psychiatric unit of Southern Maine Medical Center for ten days. Agent William Deetjen, a special agent with the Maine Drug Enforcement Agency ("MDEA"), received the initial referral concerning Creamer (a.k.a "CI 2202") from the Maine State Police on April 2. Tr. 1 at 6. Hospital personnel informed Deetjen that Creamer was to be released on April 12, 2001. Tr. 1 at 9. On April 12, 2001, Deetjen and his supervisor went to the hospital and met with the psychiatric nurse, who introduced Deetjen to Creamer. Tr. 1 at 11. Deetjen asked Creamer how he was doing, and Creamer responded "that he was excellent, that he wanted to move on with his life, to cooperate with law enforcement relating to his charges." Tr. 1 at 11. Deetjen placed Creamer under arrest on the April 2 drug trafficking charge, took custody of Creamer's prescribed medication, and placed Creamer in the police vehicle. Tr. 1 at 12. There, Creamer repeated that he wanted to cooperate with the agents and identify the source of the ten

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Citations to the transcript of the September 28, 2001, hearing will be designated as "Tr. 1" and citations to the October 24, 2001, hearing will be designated as "Tr. 2."

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ounces of cocaine. Tr. 1 at 12. Deetjen advised Creamer of his Miranda rights, and Creamer acknowledged that he understood them and signed a waiver form. Tr. 1 at 13. Deetjen drove Creamer to the nearby MDEA office, where he conducted an interview. Tr. 1 at 13. Asked to describe his conversations with Creamer, Deetjen testified: I don't believe I had any problem understanding him. He was rational, he made sense to me, and he was very articulate as to the historical cocaine, his use of the cocaine, his introduction to cocaine. We talked about his family, his marriage. I didn't have any problems with him at all. I thought he was rational and mentally stable. Tr. 1 at 14. During the interview, Creamer identified Stewart as his source of cocaine. Tr. 1 at 30. Following the interview, Deetjen transported Creamer to the jail. Tr. 1 at 15. As of April 12, 2001, George Connick was the supervisor of the MDEA office that covers the Rockland area and was leading the investigation into the activities of Defendant Stewart. Shortly after his interview with Creamer, Deetjen called Connick and told him that he had arrested Creamer, that Creamer was cooperating, and that Creamer had provided information about drug activities in the Rockland area. Tr. 1 at 14, 38. In making that referral to Connick, Deetjen testified that he told Connick only that Creamer had been arrested in possession of ten ounces of cocaine and a gun and that Creamer had been released from the hospital, but he did not give Connick any specific information regarding the reason for Creamer's hospitalization. 3 Tr. 1 at 16, 59. At some point, Connick read the transcript of the doctor's phone call informing police that the doctor believed Creamer to be "psychotic." Tr. 1 at 59. Connick assigned MDEA Agent James Pease to interview Creamer at the York County Jail. Pease was the case agent on the drug investigation already underway with respect to Stewart's

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Deetjen told him on April 12 that Creamer's hospitalization was related to some kind of mental problem, but Connick testified that he believed that it was "a cocaine induced situation, he was heavily using drugs, low on meds . . .." Tr. 1 at 60, 62.

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activities. On April 13, 2001, Pease conducted an interview with Creamer. Tr. 2 at 41; Tr. 1 at 38. At the time he interviewed Creamer, Pease was aware that he had been hospitalized at a psychiatric facility. Tr. 2 at 40-41. Pease obtained a post-Miranda statement from Creamer. Tr. 1 at 38. Pease had prepared a search warrant affidavit for Defendant's home, but he never included any information about Creamer's psychiatric hospitalization. Def. Exs. 8 and 10. Creamer was subsequently admitted to bail. Tr. 1 at 40. Two weeks later, on April 27, 2001, Connick met with Creamer, an attorney for Creamer, a DEA agent, and a prosecutor for a proffer interview session. Tr. 1 at 39. Connick described Creamer's demeanor at the proffer session as follows: "Mr. Creamer was very lucid, very cooperative and basically we went over everything in the [two previous] interviews and if there was anything else that he had to add as far as collaborating." Tr. 1 at 39. Connick continued: "He seemed to have his wits about him. There was no confusion that I could see when he spoke about the particular people that he dealt with, that he was selling or buying cocaine, he was very detailed in regards [sic] to giving addresses and people's names." Tr. 1 at 40. Nevertheless, after the proffer session, Connick decided not to actively use Creamer to work on drug investigations. Tr. 1 at 41. Connick stated that his reasons for that decision were related to the potential for violence suggested by Creamer's April 2 arrest and firearm seizure, Creamer's recent hospitalization, and the fact that Creamer was on medication. 4 Tr. 1 at 41-42. Connick's plan at that time was to stay in contact with Creamer and continue to evaluate his suitability to work as an active informant. Tr. 1 at 41. Sometime in the late May 2001, Pease returned to his employment at the Rockland Police Department and Agent Lowell Woodman took over as the case agent on the Stewart investigation. 5

During this time, Creamer was being treated for cancer of the throat. Tr. 1 at 72. It is not clear whether the medication that concerned Connick was related to Creamer's throat cancer treatment or the stabilization of Creamer's mental health.
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The record discloses that Woodman had already been actively involved in the Stewart investigation and monitored controlled

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Tr. 2 at 14. On the night of May 27, 2001, the Knox County Sheriff's Department notified Woodman that Creamer had been arrested for Operating Under the Influence ("OUI") and marijuana possession. Tr. 1 at 113. Woodman never disclosed this information to Connick or other members of the Stewart investigation team. In the meantime, Connick had been having regular telephone contact with Creamer. Tr. 1 at 42-44. Between April 27 and June 13, Connick observed that Creamer was "very lucid, more so as time went on. He was back [together] with his wife, getting his business back into running shape and getting into the lobster business. Basically, every time I talked with him, things were better for him, much more, and stable." Tr. 1 at 43. Because of these improvements, Connick made the decision, on June 13, to document Creamer as an active informant and to have him attempt to make a controlled purchase of cocaine from Stewart. Tr. 1 at 44. On June 15, 2001, Creamer participated in a controlled buy of cocaine from Stewart at Stewart's residence. Tr. 1 at 45-46. Woodman monitored that transaction via a body wire Creamer wore and recorded the transaction in which Creamer purchased cocaine. Tr. 1 at 101. Woodman heard Stewart state that he would have ten or more ounces of cocaine available for sale on June 18. Tr. 1 at 101-02; Govt. Ex. 1A,

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