ROCKLAND, Maine — A judge will decide whether allegations of excessive use of prescription medication by a former Maine Drug Enforcement Agency officer is enough to challenge a search warrant that led to the arrest of an Appleton man.
Defense Attorney Leonard Sharon alleges that the failure of former MDEA agent Kirk Guerrette to include his drug habits in information provided to obtain the search warrant in September 2010 was a significant and knowing omission that could have affected whether the warrant was issued.
The allegations in Sharon’s defense motion state that Guerrette used an excessive number of sleeping pills including a 90-day supply, or 360 pills, of the medication Ambien in 12 days.
Sharon represents Christian “Will” Neils, 35, of Appleton, who was charged with aggravated trafficking and felony possession of marijuana at his Appleton home.
Sharon is seeking to have the judge grant him a hearing to challenge the search warrant and ultimately to have dismissed any evidence gathered against his client during the execution of that search warrant.
An affidavit filed Feb. 23 by Sharon in Knox County Superior Court was unsealed Wednesday by Justice Jeffrey Hjelm. The affidavit makes references to an investigation that began more than two years ago by the Maine Healthcare Crimes Unit over possible illegal actions of pharmacies across the state. Part of the investigation involved Guerrette who was an agent with the Maine Drug Enforcement Agency at the time.
The issue of the state’s investigation and Guerrette’s involvement was raised a year ago when several defense attorneys sought to obtain the Healthcare Crimes Unit records. The attorneys wanted to determine whether any of the documents could be used to challenge Guerrette’s credibility in 44 drug cases in which he was the investigating officer. The attorneys were allowed to review the documents but were not allowed to make them public.
Any results of the investigation by the Maine Healthcare Crimes Unit have not been released. Calls were made Wednesday afternoon to Michael Miller, director of the unit, and to Brenda Kielty, spokeswoman for the Maine attorney general’s office. Kielty said Miller is out of the office until Monday and that she would be the person to comment on the matter.
Guerrette said Wednesday after the court hearing that he has been cleared of any wrongdoing. He said that an internal investigation done by the Knox County Sheriff’s Office cleared him and that he continues to work in law enforcement.
Guerrette had worked as an agent for MDEA, assigned from the Knox County Sheriff’s Office, until December 2010. At that time he returned to the sheriff’s office and Sheriff Donna Dennison promoted him to lieutenant.
Guerrette said all but three of the 44 cases in question have been resolved with several people pleading during the past week. One of the three cases unresolved is Neils’ case. Guerrette said he could not comment on a pending case and did not want to comment further on the allegations made in Wednesday’s hearing.
Assistant Attorney General Lisa Bogue, who is the prosecutor in the Neils case, argued during Wednesday’s hearing that the claims made by the defense fail to rise to the level that should prompt a court hearing to challenge the search warrant affidavit that led to the criminal charges.
Bogue also pointed out that the affidavit contained a lot of words such as “opined,” “seemed” and “appears,” but no evidence that Guerrette acted improperly in getting the affidavit.
“They’re attacking the peripheral of the agent. There is nothing about his observations on this case,” Bogue argued. “This is all conjecture.”
Justice Hjelm at one point asked the prosecutor at what level would the credibility of the officer be a reason to challenge the search warrant. Bogue said that a criminal conviction against an officer might warrant such a challenge, but that the justification likely boiled down to a case-by-case basis.
Sharon agreed, adding that in this case the behavior of Guerrette was egregious enough to warrant a hearing to challenge the search warrant.
About a dozen of Neils’ supporters attended the hearing.
The affidavit filed by Sharon states that the attorney general’s office began an investigation into the prescription filling practices of Goodnow’s Pharmacy in Rockland in 2009.
“This is what can be gleaned from the investigation. MDEA Agent Guerrette was being prescribed what appeared to be excessive amounts of the sleep medication Ambien,” the affidavit states.
The document further indicates that after Guerrette consumed his pills he would seek the assistance of his physician in getting early refills.
“His friendship and badge of authority allowed him to bypass normal channels of the pharmacy. During 2008 alone he acquired over 2,500 pills in a 90-day period,” the affidavit states.
In one instance, a pharmacy employee met him in the parking lot of the pharmacy on a Sunday to provide him a vial containing 10 pills that would be credited to his next refill. Sharon argued that Guerrette’s job was to observe people who are driven to consummate drug deals in parking lots adjacent to closed buildings.
The affidavit stated that people questioned how he could be consuming 30 times the required dosage each night. The affidavit filed by Sharon states that other people interviewed by the state, who were not identified, believed he was distributing the drugs while others thought he might be conducting a sting of the pharmacy or physician.
His relationship with the pharmacy was highly suspect, the affidavit claims. The affidavit also alleges that he had a relationship with one of the pharmacy technicians there.
Sharon argued that while the state said Guerrette had weaned himself off Ambien by the time the search warrant at his client’s property was obtained, there were medical records that showed that during June, July and August 2010, Guerrette was calling the pharmacy, physician and physician’s assistant saying he had run out of the sleep medication Lunesta.
“Do you know what became of this investigation? Nothing. No internal discipline for conduct unbecoming a drug agent, no criminal charges, no civil penalties, no drug abuse treatment, no recommendations for substance abuse evaluation. Nothing. Swept under the rug by a thin blue line,” Sharon concluded in his affidavit.
Justice Hjelm said Wednesday he would issue a ruling on the motion in due course.