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State v. Torrey
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:		1998 ME 5
Docket:		Was-97-57
Submitted on Briefs:	November 24, 1997	
Decided:		January 5, 1998



	[¶1]  Cecil Torrey appeals from the judgment entered in the Superior
Court (Washington County, Alexander, J.) affirming the judgment of the
District Court (Machias, Westcott, J.) convicting him of unlawful trafficking
in scheduled drugs, 17-A M.R.S.A. § 1103 (1983 & Supp. 1997).  Torrey
contends that the court erred by denying his motion to suppress evidence
obtained by the execution of a search warrant at his residence.  We affirm
the judgment.  
	[¶2]  Because there has been no evidentiary hearing on Torrey's
motion, we confine our analysis to the procedural aspects in this matter. 
The motion to suppress alleged that the affidavit submitted to obtain the
search warrant contained "intentional and knowing misstatements" that
were necessary for the issuance of the warrant, citing Franks v. Delaware,
438 U.S. 154 (1978).  Torrey requested an evidentiary hearing and filed
three affidavits to contradict the affidavit supporting the warrant.  
	[¶3]  After hearing from counsel, the court ruled that Torrey had not
made a sufficient preliminary showing pursuant to Franks.  In addition, the
court declined to entertain an additional challenge raised for the first time
that the officers had failed to knock and announce their presence before
entering Torrey's home.  Following his trial and conviction, Torrey appealed. 
Although the Superior Court (Washington County, Mead, J.) remanded for a
hearing on the "knock and announce" issue, neither party presented any
evidence.  On Torrey's second appeal, the Superior Court (Alexander, J.)
affirmed the judgment.  This appeal followed.  
	[¶4]  Torrey challenges only the rulings that resulted in the denial of
his motion to suppress.  Because the Superior Court acted in its appellate
capacity, we review directly the rulings of the District Court.  In so doing,
we will disregard the court's second decision because we affirm the first. 
First, we conclude that the court correctly declined to conduct an
evidentiary Franks hearing because the alleged falsity would not have
affected the validity of the search warrant.  See State v. Van Sickle, 580 A.2d
691, 693-94 (Me. 1990).  Second, Torrey had the burden of proof on his
challenge to the execution of the search warrant.  See State v. Friel, 508
A.2d 123, 127 (Me. 1986).  Moreover, "the suppression movant must
articulate in his motion with sufficient particularity the specific reason on
which he bases his claim that the seizure ... was illegal."  State v. Desjardins,
401 A.2d 165, 169 (Me. 1979).  The District Court was not obliged to
entertain an objection to the method of executing the search warrant that
was raised for the first time orally during the discussion of the Franks issue. 
In short, we affirm the court's denial of relief on an issue not properly raised
and without evidentiary support.  
	The entry is:  
				Judgment affirmed. 

Attorneys for State: Michael E. Povich, District Attorney Dennis E. Smith, Asst. Dist. Atty. P O Box 722 Ellsworth, ME 04605 Attorney for defendant: Jeffrey C. Toothaker, Esq. Toothaker & Chong 277 High Street Ellsworth, ME 04605