Judge denies motion to suppress evidence in Ellsworth drug case



ELLSWORTH — A judge Tuesday denied three motions to suppress evidence of illegal drug activity gathered from a local motel room last fall by agents from the Maine Drug Enforcement Agency.

Agents seized 140 thirty-milligram oxycodone pills, with a street value of $6,000 as well as $14,000 in cash from the room and arrested three men from Waterbury, Conn.

Carlos Pemberton, 39, Jose Maisonet, 22, and Luis Hernandez, 34, were indicted on charges of unlawful drug trafficking and two counts of criminal forfeiture in the Oct. 8 incident. Each is free on $5,000 cash bail.

Three defense attorneys, one for each defendant, each had different challenges to the search warrant that led to the drug seizure.

Attorney Steven Juskewitch, who represents Hernandez, questioned the timing.

“There was no evidence of drug trafficking when they secured the warrant,” Juskewitch said.

“The question is when can we go into Room 109,” Juskewitch said. “There’s got to be a trigger. What is it? Because there was a gathering? There’s no evidence there were drugs in Room 109 at the time. What is it about that moment that makes it OK?”

“What was the evidence that there would be drugs and currency and evidence of trafficking in the room at that time?” Juskewitch asked.

Ellsworth attorney Charles Heilfrich represents Maisonet.

Heilfrich took issue with statements made by a confidential informant.

“He said a friend of his — we have no idea who that is — a friend of his told him he’d bought drugs” from the man who rented the room, Heilfrich said. “It’s hearsay upon hearsay.”

The affidavit also referenced the fact that the occupants of the room did not allow the motel employees to enter the room for cleaning or linen change.

“We have absolutely no idea what was behind that,” Heilfrich said. “Were they sleeping late?”

Ellsworth attorney Jeffrey Toothaker, who represents Pemberton, argued that the room should not have been entered since there was no proof of drug dealing.

“Where is that proof of drug dealing in Room 109?” Toothaker asked.

“It had some visitors and some people who’ve had an interesting past,” Toothaker said. “Without a buy … Room 109 should be safe” from police intrusion.

“You’ve got to have something more than past associations to violate where you’re living,” Toothaker said. “Where is the actual probable cause of drug activity?”

Toothaker, in his motion to suppress, said the affidavit for the search warrant “reads like a Who’s Who for racial profiling.”

The affidavit stated that two black men and one Hispanic man were staying in the motel room, according to Toothaker.

District Attorney Matt Foster said “the standard is only a probability that criminal activity is occurring.”

“No one thing gives us the key to that room,” Foster said. “It’s the totality of the circumstances.”

The police had evidence a “known person in the drug world” was staying in that room, Foster said. “We have three guys staying in a motel room not having any services for three weeks.”

Foster said looking at all of the issues the defense attorneys raised, “it’s a close call.”

“But when it’s a close call, it goes to the side of the state or the magistrate who signed the warrant,” the prosecutor said.

Justice Bruce Mallonee presided over the hearing.

“I am going to deny the motion,” Mallonee said.

Mallonee said he recognized Heilfrich’s argument about “the confidential informant and the hearsay.”

However, the case follows a pattern in which people from out of state rent motel rooms to conduct drug business, the judge said.

Mallonee spoke to the suggestion of racial profiling.

There is often “an underlying supposition that Caucasian people are not identified by their race but everybody else is,” the judge said. “I don’t think that undermines the observations made in this affidavit.

“The law court has found that the standard for reviewing probable cause finding is that the court has to look at the totality of the circumstances,” Foster said.

Jennifer Osborn

Jennifer Osborn

Reporter and columnist at The Ellsworth American
News Reporter Jennifer Osborn covers news and features on the Blue Hill Peninsula and Deer Isle-Stonington. She welcomes tips and story ideas. She also writes the Gone Shopping column. Email Jennifer with your suggestions at [email protected] or call 667-2576.

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