This matter is before the court on the defendant's Motion to Suppress(Docket No. 31). The matter was referred to me and I conducted anevidentiary hearing on January 26, 2004. Cadieux is charged with aviolation of 8 U.S.C. § 922 (g)(1), being in possession of a firearmafter having been convicted of a crime punishable by imprisonment for aterm exceeding one year. He seeks to suppress two firearms discoveredunderneath a barn at the residence of Theresa Nye in Temple, Maine.Cadieux also asks that the court suppress statements he made while incustody in a police cruiser parked in the dooryard of the Nye residence.I now recommend that the court adopt the following proposed findings offact and DENY the motion.
Proposed Findings of Fact
I begin with the facts stipulated by the parties. Both the Governmentand the defendant agree that the area adjacent to and underneath the barnat the Nye residence is part of the curtilage. They have also stipulatedthat the Government will not offer during its case in chief a statementmade by Cadieux to the corrections officer during the booking process,and overheard by Deputy David Rackliffe. In addition to thesestipulations, I find the following facts surrounding the May 15, 2003,search of TheresaPage 2Nye's barn based on the testimony I heard during the suppressionhearing and the sworn reports submitted by the officers who testifiedbefore me.
Franklin County Sheriff's Department Patrol Deputy David Racklifferesponded to a 9-1-1 call at the residence of Theresa Nye in Temple,Maine. Jolene Nye, Theresa's adult daughter, made the call because hermother and David Cadieux were having an argument and Cadieux had a gun.Theresa Nye informed the dispatch operator that Cadieux fled on foot intothe woods prior to the officer's arrival at the scene. Rackliffe was thefirst officer to arrive at the scene and he learned from Mrs. Nye thatshe and Cadieux had been arguing in the barn. Rackliffe and Theresa Nyewent to the barn to search for the weapons. Jolene Nye indicated thatthere should be a 16-gauge shotgun and a black powder rifle in the barn.Theresa Nye was calm and cooperative with Rackcliffe and she pointed outto him a gun cabinet in the barn where the guns had been stored. Theofficer and Nye searched together throughout the barn and did not findany weapons, except for a BB gun. Rackliffe did not specifically ask Nyefor permission to search the barn, but he clearly indicated that hewanted to find the guns and Nye voluntarily went with him to the barn toassist him in that search. Any reasonable person in Nye's situation wouldhave understood that Rackliffe's request encompassed a search of thebarn.
Deputy Michelle St. Clair and Corporal Nathan Bean of the FranklinCounty Sheriff's Department arrived at the scene shortly after Rackliffe.Once the barn had been initially secured, Theresa Nye went into the housewith St. Clair, Rackliffe, and perhaps other officers to write astatement. During the preparation of that statement Nye became evasivewith her answers, indicating that Cadieux had previously said, "[She]talk[s] tooPage 3much." However, Nye did not tell the officers to leave nor did shetell them to stop looking in the barn. At some point, either before theywent into the home to prepare the statement or after Nye had beenquestioned and they came back outside, Nye and St. Clair had a generalconversation about ponies Nye stabled in the barn and Nye's concern thatno one go into the stall because he or she might be kicked. Nye told St.Clair that the ponies had been abused by a previous owner and were easilyagitated. Other than expressing a generalized concern about someonegetting kicked if they went into a pony's stall, Nye did not limit thesearch or express any displeasure with the officer's activities outsideher residence.1
More officers arrived at the scene, including representatives of theMaine State Police Tactical Team. The officers continued to secure thearea of the barn and its immediate surroundings without any objectionfrom Nye. At some point they learned from either Theresa Nye, Jolene Nye,or Shaun Borden (Jolene Nye's boyfriend, who was also present at thescene) that Cadieux had a prior felony conviction and was thereforeprohibited from possessing firearms. As the various officers arrived andtook up positions surrounding the barnyard, Cadieux elected to try toreturn to the barn. Corporal Bean heard a noise that sounded like someoneforcing open a nailed shut door. He also heard Deputy St. Clair tellsomeone to stop. Bean could hear noises coming from the barn anddetermined that Cadieux was back inside the barn.
The officers had locked the door that led to the horses' stalls,presumably to keep Cadieux from going back into that part of the barn.Bean observed Cadieux in the barn area moving a small piece of metalthrough the door's crack in order to push open thePage 4"hook and eye" lock that had been secured by the officers. When Cadieuxcame through the door his hands were empty. Bean approached him with hisgun drawn and ordered Cadieux to get down on the floor. Cadieux wasinitially non-compliant, but eventually Cadieux went down to the ground.When the officers attempted to place handcuffs on him he again becamenon-compliant and a scuffle ensued. Once Cadieux was handcuffed, he wasasked his name. He refused to identify himself. Borden confirmed that theperson in custody was David Cadieux.
Rackliffe placed Cadieux in his police cruiser. Bean went to thecruiser and asked Cadieux where the guns were, but Cadieux refused torespond. Bean then returned to the area of the barn where he had firstseen Cadieux hiding. He found the shotgun and the 50 caliber black powderrifle underneath the barn in a crawl space in the area of the barn wherethe horse stalls were located.
After Rackliffe learned the guns had been located, Cadieux was afelon, and the Assistant District Attorney had authorized charges beingfiled, he formally told Cadieux he was under arrest for being a felon inpossession of firearms. Cadieux was still in the police cruiser and heagain became combative and angry. Cadieux informed Rackliffe that hebelieved he could have guns on private property and he had a permit topossess guns in Massachusetts. No Miranda warnings were given to Cadieuxduring the time he remained with the officers.Page 5
1. The search for the firearms
The Government justifies this warrantless seizure of the firearms as avalid third party consent to search given by Theresa Nye. I concur thatTheresa Nye gave the officers her consent to search the barn and that, atthe most, she may have cautioned deputy St. Clair about agitating theponies. The guns were ultimately located in a crawl space under the barnand their seizure did not require any entry into the ponies' stalls.Therefore, even if Theresa Nye did issue a cautionary addendum to hergeneral consent to search the barn, the officers did not discover theguns by exceeding in any way the scope of Nye's consent, as theyunderstood it.
The Government bears the burden of proving that the search it conductedwas within the scope of the consent. United States v. Turner, 169 F.3d 84,87, n.3 (1st Cir. 2002). I believe that United States v. Melendez,301 F.3d 27, 32-34, (1st Cir. 2002) directly addresses the issues raisedby this motion. In Melendez the defendant's mother consented to thesearch of a bedroom, cautioning the officers that she did not want herapartment "torn up." Citing well established case law, the First Circuitemphasized that the scope of consent must be judged by a test ofobjective reasonableness. Id. at 32. In the Melendez case, as in thiscase, the party giving the consent to search was cooperative with theofficers and understood fully what they were looking for and where theyintended to look. In this case Theresa Nye even assisted them in theirinitial search. In the context of the 9-1-1 call they received, it onlymade sense that when Cadieux returned to the barn in a drunk andbelligerent state, the police officers would not have gotten Theresa Nyeto again come to the barn to assist with the continuing search forweapons.Page 6Under the specific factual circumstances of this case, the inescapableconclusion is that Theresa Nye freely assented to the search of herbarn.
2. The Statements Made By Cadieux
The government concedes that the defendant was not advised of hisMiranda warnings on May 15, 2003, while seated in the police cruiser.That the defendant was in custody appears obvious. He was handcuffed andrestrained to the degree associated with a formal arrest. For purposes ofcustodial interrogation, a defendant is in "custody" when his or herfreedom of movement is restricted to a degree associated with a formalarrest, United States v. Ventura, 85 F.3d 708, 712 (1st Cir. 1996),whether or not a formal arrest has occurred. The issue posed by thismotion is whether the statements made by Cadieux were the product of aninterrogation.
Clearly the officers questioned Cadieux when they asked him where thefirearms could be found. Just as clearly, Cadieux refused to answer theirquestions and the police left him and went back to the barn to search forthe guns. After the guns had been found and the felony record confirmed,the police returned to Cadieux and informed him that he was formallybeing placed under arrest. At that point in time Cadieux, not in responseto any specific question, informed the officers about his "right" topossess guns in Massachusetts and on his private property. The solequestion therefore is whether the officers' engaged in the "functionalequivalent" of questioning when they returned to the cruiser. RhodeIsland v. Innis, 446 U.S. 291, 300-301 (1980). I conclude they didnot.
Cadieux's argument is that because he was improperly questioned aboutthe location of the firearms sans Miranda warning, his later statementsshould be suppressed even though they were not the product of anyquestioning. According to Cadieux this isPage 7so because the officers' conduct was designed to elicit an incriminatingresponse from Cadieux and was therefore the functional equivalent ofquestioning. Cadieux cites not one case holding that telling someone heis under arrest is the functional equivalent of questioning. The policedid not pursue the improper questioning of Cadieux when he refused totell them where the guns were located. Instead they left him alone andwent about their business. That Cadieux chose to make what he obviouslybelieved were exculpatory statements about his right to possess guns,does not establish that the officers engaged in the functional equivalentof an interrogation of Cadieux. They asked him no questions after theformal arrest nor did they engage in any pattern of conduct designed toelicit an incriminating response.
Based upon the foregoing factual findings, I now recommend that theCourt DENY the motion to suppress.
1. I recognize that counsel for the defendant maintains that TheresaNye told the officers not to search "in the area of the ponies" unlessshe was present. I do not find that she made any such statement basedupon the testimony presented at the hearing.