2005 | Cited 0 times | D. Maine | April 12, 2005


Dane Paquette is charged in an indictment with two counts ofpossession of unregistered firearms, in violation of Title 26,United States Code, Section 5861(d). Paquette has moved tosuppress the firearms, which he maintains were discoveredpursuant to the execution of an unconstitutionally generalportion of a search warrant. I held a telephone conference onMarch 25, 2005, in order to determine whether Paquette or theGovernment wished to have an evidentiary hearing on the motion.Both agreed that an evidentiary hearing was not necessary at thisjuncture. Paquette, however, requested that an evidentiaryhearing be held if the court concludes that the "good faith"exception to the warrant requirement affords the only basisavailable to prevent the exclusion of the evidence. I recommendthat the court adopt the following factual findings and deny themotion to suppress.


On September 14, 2003, a judge of the Maine District Courtexecuted a nighttime, no-knock warrant to search apartment 9 of amulti-unit apartment complex located on Route 201 in Vassalboro,which was at that time the premises of one Jason Harfoush and ablack male identified only as "J." The warrant described theplace to be searched as a "residence," described the residence as "a first floor front apartment (apartment #9)"and authorized officers to search that "residence" and also"motor vehicles that are present at, and/or arrive at saidresidence." The affidavit submitted in support of the warrantrecited facts and circumstances that unquestionably gave rise toprobable cause to believe that the occupants of the residencewere trafficking in scheduled drugs and that narcotics, otherevidence of drug trafficking and other contraband would likely bediscovered at the residence, on the persons of those found at theresidence or within motor vehicles owned or operated by thosepresent at or arriving at the residence during the execution ofthe warrant. Among the many articles of property to be searchedfor, the warrant indicated that the officers might seek "firearmsin close proximity to illicit drugs and contraband."

Deputies from the Kennebec and Somerset County Sheriff's Officeexecuted the warrant on September 14, 2003. The report in therecord reflects that the officers forcibly entered the residenceunannounced and discovered inside three individuals, none of whomresided at the residence. Questioning by the officers revealedthe individuals to be David Peachey, Dane Paquette and JoniDorage. According to the supplemental report of Detective TomRourke, he interviewed Ms. Dorage, who informed him that thethree had recently arrived in Maine from the State of Washingtonand had been staying at different residences since then. A searchof the vehicle in which the three were traveling, and which is orwas owned by Ms. Dorage, produced three firearms, two of whichwere short-barreled shotguns. According to a report prepared byCorporal Jeremy Damren, he brought Dane Paquette outside theresidence after the three were secured and gave Paquette aMiranda warning. Paquette indicated that he understood thewarning. Thereafter Paquette stated in response to questioningthat he was staying at the residence for a few days and that hedid not know where Harfoush and J were at that time. He was then returned to the residence. Meanwhile, Detective Rourkehad been questioning Peachey, who informed him that one of theshort-barreled shotguns belonged to Paquette, whereupon Paquettewas brought outside again for further questioning. Both DetectiveRourke and Corporal Damren report that Paquette initially deniedknowledge of any guns, but subsequently conceded that one of theshotguns was his. About this time, Corporal Damren went toquestion the occupants of a vehicle that pulled into the drivewayof the apartment complex. According to Damren, he recognized boththe driver and the passenger as individuals subject to bailconditions. A search of the two occupants yielded 10 bags ofheroin. As this was transpiring, Detective Rourke continued toquestion Paquette. According to Rourke, Paquette stated that hebrought the shotgun from Washington and that he knew that it wasillegal for him to possess it.


Paquette contends that the search warrant was unconstitutionaland that the search of Dorage's vehicle and seizure of theshotguns violated his constitutional rights because the warrant"does not describe which car (or cars) to search, or how anofficer's discretion would be limited in deciding which cars tosearch." (Motion to Suppress, Docket No. 53, at 2.) According toPaquette: "With respect to cars, the warrant became a generalwarrant which allowed the deputies to determine, without anyjudicial supervision or oversight, which cars they wouldsearch. . . . . A search warrant that allows the officers tosearch any car at, or arriving at, a multi-unit apartmentcomplex, which apparently had at least nine apartments, isoverbroad." (Id. at 2-3.) In addition to refutingthe suggestion that the warrant was overbroad or general, theGovernment attacks Paquette's ability to challenge the search,claiming he lacked a reasonable expectation of privacyvis-à-vis Dorage's vehicle. (Gov't Resp., DocketNo. 56, at 3-4.) A. Expectation of Privacy

"Fourth Amendment rights are personal, and a proponent of amotion to suppress must prove that the challenged governmentalaction infringed upon his own Fourth Amendment rights." UnitedStates v. Kimball, 25 F.3d 1, 5 (1st Cir. 1994). In Kimball,the First Circuit held that a passenger in a motor vehicle has acognizable Fourth Amendment interest in not being subjected to anunreasonable seizure, or traffic stop. Id. Also at issue in thecase was the separate question of what expectation of privacy apassenger has in a motor vehicle in relation to a search of itscontents. Id. at 9. According to the Court: "Standing tochallenge a search presents issues separate and distinct fromstanding to challenge the stop." Id. Although the Court foundstanding to challenge the seizure, it held that the defendantlacked standing to challenge an inventory search conductedpursuant to an impoundment of the vehicle. Id. With respect tostanding to challenge the search, the First Circuit held that thedefendant "must show that he had a reasonable expectation ofprivacy in the area searched and in relation to the item seized."Id. at 9 (quotation marks and citations omitted). A showing ofreasonable expectation must be two-dimensional: "The defendantmust show both a subjective expectation of privacy and thatsociety accepts that expectation as objectively reasonable."Id. (quotation marks and citations omitted).

Paquette argues that he has an expectation of privacy underthese circumstances because the shotgun was concealed in the car,he owned the shotgun and stated his ownership interest to theofficers following the search and nobody can say who was mostfrequently the operator of the vehicle. He also posits that hehas standing to challenge the warrant because he was an overnightguest at the residence. (Def's Reply, Docket No. 60, at 1-2.) Ido not believe that Paquette's expectation of privacy within theresidence, by virtue of being an overnight guest, overrides the inquiry into his expectation of privacy in thetrunk of Dorage's vehicle. The standard requires a showing of areasonable expectation of privacy in the area searched: thetrunk of Dorage's car. First Circuit precedent reflects that, ingeneral, "standing"1 does not exist to challenge a searchof a vehicle when the defendant neither owns nor is in possessionof the vehicle in question. United States v. Maguire,918 F.2d 254, 261 (1st Cir. 1990) (citing cases). In my view, the factsand circumstances related in the police reports are notsufficient to establish Paquette's standing. They reflect thatPaquette was neither the owner nor the individual in exclusivepossession of the vehicle. Although these factors are notdispositive, see Rakas v. Illinois, 439 U.S. 128, 143 (1978)(holding that "distinctions developed in property and tort lawbetween guests, licensees, invitees, and the like, ought not tocontrol"), these factors place Paquette among the mine run ofother defendants who have been held to lack standing to challengea search of a trunk compartment. See, e.g., Rakas,439 U.S. at 148-49; Maguire, 918 F.2d at 261; United States v.Barragan, 379 F.3d 524, 530 (8th Cir. 2004); United States v.Baker, 221 F.3d 438, 441-42 (3d Cir. 2000). Paquette's ownershipof the article seized does not automatically confer standing.See United States v. Goshorn, 628 F.2d 697, 700 (1st Cir.1980).

Conceivably, Paquette might be able to establish both"historical use" of the vehicle and that he was able to "regulateaccess" to it, in light of the fact that it had served as hisconveyance over a period of weeks. However, the police reportsare not ideally suited to demonstrate Paquette's subjectiveexpectations of privacy2 and the First Circuit hascautioned that "the purchase necessary to come to grips with anallegedly illegal search or seizure . . . does not automaticallydevolve upon every accused." United States v. Aguirre,839 F.2d 854, 856 (1st Cir. 1988). Even if a subjective expectation were established onthis record, I am not inclined to find that society wouldconsider it reasonable for an individual to expect to keepprivate from a vehicle owner with whom he is traveling the factthat he has placed a firearm in the trunk and, in any event, therecord reflects that the presence of the shotgun was known atleast to Paquette's fellow traveler Peachey. Accordingly, on thisrecord I conclude that Paquette lacks standing to challenge theconstitutionality of the search of Dorage's vehicle. In anyevent, even if Paquette has standing to challenge the search ofthe vehicle's trunk, it is apparent that the warrant authorizingthe search of the vehicle was supported by probable cause and wasreasonably limited in its scope and that the connection betweenthe residence and the vehicle in question made the searchreasonable.

B. The Warrant

"The Fourth Amendment forbids general warrants so as to preventlaw enforcement officers from rummaging through an individual'sbelongings at will." United States v. Beckett, 321 F.3d 26, 33(1st Cir. 2003) (citing Andresen v. Maryland, 427 U.S. 463, 480(1976)). As set forth in my factual recitation, the warrant inquestion included as places and things to be searched the"residence" (described as "a first floor front apartment(apartment #9)") and "motor vehicles that are present at, and/orarrive at said residence." The common sense reading of thewarrant is that it conditions the officers' authority to search avehicle upon the vehicle's presence or arrival at apartment 9. Inother words, the vehicle must be associated with apartment 9.Moreover, the warrant appropriately limited the officer's abilityto seize items discovered during any vehicle search. C. Wong Sun v. United States

Paquette ends his motion with an argument that the seizure ofthe shotguns was unreasonable because it was not expresslyauthorized by the warrant. He also argues, by extension, that itwas inappropriate for the officers to question him concerning theshotguns. According to Paquette, because his statements relatedto the shotguns were obtained solely as a consequence of anunlawful seizure of the guns, his statements to the officers mustbe suppressed as "fruit of the poisonous tree" in accordance withWong Sun v. United States, 371 U.S. 471 (1963). In support ofthis aspect of his motion, Paquette observes that the warrantauthorized the seizure of firearms "in close proximity to illicitdrugs and contraband." Because there were no drugs found inDorage's vehicle and because possession of a short-barreledshotgun is not per se illegal, Paquette argues that it wasunconstitutional to seize the guns and question him regardingthem. (Motion to Suppress at 3-4.)

Although Paquette is correct about the limitation stated in thewarrant, the theorem he attempts to build from that factualpremise is flawed. Under Terry v. Ohio, 329 U.S. 20 (1968),officers are allowed to briefly detain and question a suspect inorder to confirm or dispel their suspicions about his involvementin unlawful activity, provided they possess reasonable suspicionconcerning that involvement. Paquette fails to cite any authorityfor the proposition that officers, during the execution of asearch warrant, may not conduct Terry-style questioning that isnot directly related to the objective of the warrant. Although Ihave not found a case squarely on point, strong persuasiveauthorities reflect that Paquette's counter-intuitive propositionis well out of bounds. Cf. Michigan v. Summers, 452 U.S. 692,702-04 (1981) (holding that officers executing a search warrantat a residence may detain a resident for the duration of thesearch); United States v. Brignoni-Ponce, 422 U.S. 873, 881-882(1975) (observing in the context of a roadblock case that "suspiciouscircumstances" unrelated to the purpose of the roadblock canjustify questioning).

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.Brignoni-Ponce, 422 U.S. at 881 (quoting Adams v. Williams,407 U.S. 143 (1972)). Upon the discovery of two short-barreledshotguns during the execution of a search warrant in connectionwith a drug trafficking investigation, it was reasonable for theofficers to conduct an ancillary investigation into the ownershipand registration of the weapons. During the course of theofficers' questioning, according to the only record available atthis time, Paquette not only conceded ownership over one of theshotguns, but also conceded that he knew it was illegal for himto possess the weapon. Paquette's confession thus afforded theofficers with probable cause to believe that the shotgun wasevidence of a crime and to seize it.3 Because thediscovery of the shotgun and the questioning concerning it didnot offend the Fourth Amendment, Wong Sun is not implicated inthis case.


For the reasons set forth herein, I RECOMMEND that the courtDENY the defendant's motion to suppress (Docket No. 53).

1. Following the First Circuit's lead, I recognize thenomenclature is imprecise, but I use the phrase "standing" inreference to this threshold requirement. See United States v.Romain, 393 F.3d 63, 68 (1st Cir. 2004).

2. For example, the reports are silent as to whether eithershotgun was secreted within a bag or other private container towhich Paquette has exclusive access.

3. Paquette disavowed ownership of the second shotgun, whichwas claimed by Dave Peachey. Accordingly, he does not havestanding to challenge the seizure of the second shotgun. Cf.United States v. Miller, 589 F.2d 1117, 1131 (1st Cir. 1978)("[O]ne who denies any interest in luggage has abandoned theproperty and thereby loses any standing to challenge an ensuingsearch.").

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