U.S. v. THOMAS

190 F. Supp.2d 49 (2002) | Cited 0 times | D. Maine | March 6, 2002

"[T]here is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all." Arizona v. Hicks, 480 U.S. 321, 329, 107 S.Ct. 1149, 1155, 94 L.Ed.2d 347 (1987) (J. Scalia).

MEMORANDUM OF DECISION AND ORDER GRANTING IN PART, AND DENYING IN PART, DEFENDANT'S MOTION TO SUPPRESS

In this case, Defendant Vince E. Thomas was indicted for being a felonin knowing and unlawful possession of a firearm, in violation of18 U.S.C. § 922(g)(1) and 924(a)(2). The Court now has before itDefendant's Motion to Suppress (Docket No. 13), in which he seekssuppression of a firearm as well as statements made by Thomas to lawenforcement officers. Defendant argues that suppression is appropriatebecause the gun was discovered by a search and seizure violative of theFourth Amendment. Defendant's statements may be grouped into fourcategories: (1) statements made at the Lake District area, (2) statementsmade at the apartment before the gun was discovered, (3) statements madeat the apartment immediately upon discovery of the firearm, and (4)statements made to Officer Randy St. Laurent at the Androscoggin CountyJail after administration of a Miranda warning. Suppression of all thestatements is appropriate, Defendant argues, because the first threegroups of statements were made while he was in custody without benefit ofMiranda warnings, and the last statements, although made post-Miranda,should nevertheless be suppressed as "fruit of the poisonous tree,"resulting from the prior unconstitutional seizure of the gun and Mirandaviolations. The Government opposes the motion, arguing that thewarrantless seizure of the firearm was constitutional under the "plainview" exception to the Fourth Amendment and the statements are admissiblebecause they were voluntarily made while Defendant was not in custody.

I. FACTS

Auburn Police Lieutenant Thomas Roth ("Lt. Roth") observed DefendantVince Earl Thomas, a black male, and Vicky Edwards, a white female,standing beside a car at the Water District turnaround in Auburn, Maineat approximately midnight on September 5, 2001. Tr. at 3-4, 64, 71-72.1The area is posted no trespassing from sunset to sunrise. Tr. at 4. Lt.Roth testified that he approached and asked both individuals foridentification "[b]ecause both of them were involved in criminal trespass[as] they were present after sunset."2 Tr. at 5-6. Ms. Edwardsproduced a Maine driver's license, and the car was registered to her. Tr.at 4-5. Defendant indicated that he did not have any identification(hereinafter "ID") with him. Tr. at 6.

When asked his name and date of birth, Defendant stated that his namewas Earl Thomas and hestitated before replying that his date of birth wasMay 15, 1974. Id. Lt. Roth testified that in his experience: "when peopleare hesitant to give me their name and date of birth . . . they arefabricating." Tr. at 7. Lt. Roth also testified that he observedDefendant wearing a handcuff key chain on his outer garment, which hebelieved "was kind of odd." Tr. at 7. After Defendant stated that he hada Florida ID card, Lt. Roth asked the dispatcher to check the records inMaine and Florida for an Earl Thomas, born May 15, 1974, to determinewhether he was "wanted."3 Tr. at 7-8. Lt. Roth testified that hewanted to see an ID, run it through the database, and have it come backthat Defendant was not wanted before allowing Defendant to go. Tr. at14. Searches of both databases turned up no record of such person. Tr. at7-8. Lt. Roth testified: "I advised [Defendant] that I could hold himuntil I received proper ID because he was involved in criminaltrespass."4 Tr. at 9, 34. Lt. Roth failed to inform Defendant about"that part of the statute that says you can hold him for two hours." Tr.at 40, 17-A M.R.S.A. § 15-A(2).

After another Auburn Police Officer, Stephen Burns, arrived on thescene, Lt.Roth continued questioning Defendant, who told him that he was staying atCarol Chandler's apartment at 169 Bartlett Street in Lewiston, providedher phone number, and stated that his ID was there. Tr. at 10, 11, 72.Officer Burns stood between Defendant and Ms. Edwards while Lt. Rothcalled Ms. Chandler from his cruiser. Tr. at 11. Ms. Chandler told Lt.Roth that a man who went by the nickname "Black" was currently stayingwith her and that he had received mail at her apartment addressed toVince Earl Thomas. Tr. at 10-11, 12, 139. After speaking to Ms.Chandler, Lt. Roth asked Defendant if he had previously given him amiddle name, and Defendant denied that he had done so. Tr. at 12. Thedispatcher then notified Lt. Roth that a person named Vince Thomas hadbeen involved in a domestic incident at 169 Bartlett Street on August21, 2001. Tr. at 12; see also Complaint, Affidavit of Officer St. Laurent(hereinafter "St. Laurent Aff.") (Docket No. 1) at 2. Lt. Roth testifiedthat he asked Defendant if he had ever been in jail or released onprobation, and Defendant responded that he had not. Tr. at 23, 60. Lt.Roth testified that at that point he did not believe that Defendant wastelling the truth about his identity; and he asked Defendant to go toBartlett Street to retrieve his ID. Tr. at 13, 14, 35, 40. Lt. Rothtestified that he told Defendant that, provided he was not wanted, if heproduced a valid ID, he would then be free to go. Tr. at 13, 40. Defendantwould not have been free to leave if he had not agreed to go with theofficers and to provide his ID. Tr. at 40-41. Lt. Roth testified that he"could have arrested" Defendant at any point for criminal trespassing.Tr. at 38-39.

Defendant agreed to go to Lewiston with the officers and got into theback seat of Officer Burns's cruiser, which was locked so that it couldnot be opened from the inside.5 Tr. at 83-84. Officer Burns testifiedthat he did not handcuff Defendant because it was a "voluntarytransport," but that if Defendant had asked him to stop or to let him outof the vehicle, Officer Burns would not have let him go. Tr. at 75, 84.The trip from Auburn to Lewiston lasted approximately 10 minutes. Tr. at16. Lt. Roth drove in his own cruiser to 169 Bartlett Street. Around 1:00a.m. Lewiston Police Officer Richard Stanton was dispatched to back upthe Auburn Police officers; and he met Lt. Roth, Officer Burns and Thomasoutside 169 Bartlett Street around the time they arrived. Tr. at 16, 88.

Despite the conflicting testimony about how the officers gained entryinto the house, the Court is satisfied that the four men approached thehouse and someone knocked on the door, and either Ms. Chandler or herson, Jason Moody, opened the door.6 Tr. at 16-17, 77-78, 90. OfficerStanton testified that Defendant entered first, followed by Roth, Burns,and Stanton. Tr. at 90. Ms. Chandler testified that she knew Defendantwas coming over to get his ID and that she and her son hadno objection to that.7 Tr. at 129-30, 139. Ms. Chandler camedownstairs and was present for some of the time that Defendant wassearching through his things, but at some point, she went back upstairs.Tr. at 21, 140. Mr. Moody was present in either the living room or thekitchen while Defendant looked for his identification. Tr. at 91-92.Officer Stanton testified that he was watching Mr. Moody "[t]o make surehe didn't cause any problem or put anybody in danger." Tr. at 92.

The officers entered into the kitchen and then walked into the livingroom after Defendant said, "that's where I'm staying," and Lt. Rothtestified, "that's where we went . . . because it was obvious that'swhere his things were." Tr. at 21, 44. When they arrived in the livingroom, Defendant "proceeded to go to the area where the luggage wasstacked on the floor and started opening luggage to look foridentification." Tr. at 78. While Defendant "was going through some ofhis luggage [Officer Burns] noticed a large envelope. . . . [He] asked[Defendant] what it was and if [he] could see it."8 Tr. at 78-79, seealso Tr. at 94. Defendant gave Officer Burns the manila envelopecontaining several ID papers, including what appeared to be schoolrecords or transcripts of Vince Earl Thomas, and a photocopy of a FloridaID card with the name Vince Earl Thomas and a birth date of May 15, 1975— one year later than the date Defendant had earlier told Lt.Roth. Tr. at 20, 22, 44, 78-79. Lt. Roth then asked the dispatcher to runa records check with the new name and birthdate. Tr. at 22-23. Lt. Rothtestified that he wanted to know whether Defendant was wanted or wasviolating any conditions of probation. Tr. at 50, 60-61. Lt. Roth learnedfrom the dispatcher that Defendant had a valid Florida ID card and thatthere were no outstanding warrants for his arrest, but that he was aregistered sex offender in Florida. Tr. at 23, 51, 59.

Lt. Roth testified: "I felt there might be drugs present . . . . and Ifelt [that Defendant] was hiding [something], . . . but I didn't knowwhat." Tr. at 24. Lt. Roth asked Defendant more questions about his sexoffender status and also repeatedly asked him: "What are you trying tohide?" Tr. at 23, 25, 50, 53, 80. In response to the questions aboutbeing a sex offender, Defendant "said he had been charged with assaultand kidnapping." Tr. at 23-24, 52-53. Roth testified that at this time,he was still detaining Defendant for not providing ID, and for "a shortamount of time" after the dispatcher had reported that Defendant was notwanted, Lt. Roth said: "I was still continuing my identificationrequest, investigation into why he was deceptive. I wanted to look intothe sex offender status and those types of things . . . to see whether hewas on probation or conditions he could not be with minors or anythinglike that." Tr. at 50. Lt. Roth stated that, after finding out Defendantwas not wanted, he was "not going to issue a summons for trespass;"however, he further testified that he was also motivated by his beliefthat "a lot of times there could be a warrant and the dispatcher does notget that" when dealing with someone from "out-of-state." Tr. at 51-52.Lt. Roth testified that after he received the ID and asked the dispatcherto run it, he was "attempting to determine if there was additional bases. . . to take some type of action with respect to detaining [Thomas]."Tr. at 53. Lt. Roth also testified that after seeing what he thought wasmarijuana residue on a nearby table, he asked Officer Stanton to call fora canine unit.9 Tr. at 24, 47, 61.

Lt. Roth testified that he "confronted" Defendant with the questions:"[W]hy are you telling me that you're Earl Thomas? Now I have an IDtelling me that you're Vince Earl Thomas; are you wanted? Are you onprobation?" Tr. at 37. Officer Stanton testified that he heard Defendantsay that he had been in prison for about ten years. Tr. at 95. Lt. Rothtestified that he assumed Defendant had a felony record, in part becauseof Defendant's admissions and in part because the dispatcher informedRoth that Defendant was a registered sex offender in Florida. Tr. at 24,59. Lt. Roth asked Defendant why he had not been truthful about hiscriminal record. Tr. at 24-25, 50, 60.

As Lt. Roth was questioning Defendant, Defendant replaced one piece ofluggage back on top of another piece and then sat down on the pile. Tr.at 80. Lt. Roth testified that, in response to his questions, Defendant"just really stopped talking and sat on the duffle bags." Tr. at 25. Lt.Roth testified that he thought Defendant's behavior was "odd"; that hecouldn't see what Defendant "was doing as well as when he had beenstanding up," and that Defendant could still reach into his bags. Tr. at25. Lt. Roth testified that, because he was concerned for his safety, he"asked [Defendant] to stand up." Tr. at 25. At that point, Defendantstood up and stepped away from the bags. St. Laurent Aff. at 3.10

Officer Stanton testified that he then saw Lt. Roth move Defendant'sbag with his foot, and that after the bag was moved, a gun becamevisible.11 Tr. at 97; see also St. Laurent Aff. (recounting theevents described in Officer Stanton's police report). Officer Stantontestified that before Lt. Roth picked up the gun, Officer Stanton saw iton the floor. Tr. at 100-01. According to Officer Stanton, Lt. Roth thenasked Defendant, "What's that?" as Lt. Roth bent and picked up thegun.12 Tr. at 101. In response to Lt. Roth's question, Defendantreplied, "It's a gun." Tr. at 26, 99. After bending down and picking upthe gun, Lt. Roth asked, "Is it loaded?" and Defendant replied that itwas.13 Tr. at 26, 27, 93.

Officer Stanton testified that he then arrested Defendant, placing himin handcuffs, for "Possession of a firearm by a felon." Tr. at 95.Defendant was taken into the kitchen. Tr. at 82. The officers transportedDefendant to the Androscoggin County Jail. Tr. at 96. At approximately 1p.m. on September 6, 2001, Central Maine Violent Crime Task Force SpecialAgent Randy St. Laurent went to the jail to interview Defendant regardingthe firearm. Tr. at 105. The parties stipulated that Officer St. Laurentgave Defendant "proper and sufficient" Miranda warnings beforequestioning him. Tr. at 106-07. Defendant gave incriminating responses toSt. Laurent's questions, including admitting that he was a convictedfelon, that the gun had been in his possession when it was found, andthat he had obtained the gun from someone in Georgia.14

II. DISCUSSION

A. The Gun: Search

Defendant maintains that the gun was obtained by an unlawful search andseizure in violation of his Fourth Amendment rights. The Governmentargues that the officers seized the gun after observing it in plainview. The Fourth Amendment protects an individual's reasonableexpectation of privacy against intrusion by the government and, by itsterms, prohibits unreasonable searches and seizures. The Supreme Courthas noted, "there is `no ready test for determining reasonableness otherthan by balancing the need to search [or seize] against the invasionwhich the search [or seizure] entails.'" New York v.Class, 475 U.S. 106, 116, 106 S.Ct. 960, 967, 89 L.Ed.2d 81 (1986)(quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-80, 20L.Ed.2d 889 (1968) (footnote omitted) (brackets as in Terry)). Further,"in justifying the particular intrusion the police officer must be ableto point to specific and articulable facts which, taken together withrational inferences from those facts, justifiably warrant thatintrusion." Id., 475 U.S. at 116-17, 106 S.Ct. at 967. In balancinggovernmental interests against governmental intrusion, the factors to beconsidered include: whether the safety of the officers is served by thegovernmental intrusion; whether the intrusion was minimal; and whetherthe search stemmed from some probable cause focusing suspicion on theindividual affected by the search; e.g., the officers' probable causecould stem from directly observing respondent commit a violation of thelaw. Id. 475 U.S. at 117-18, 106 S.Ct. at 968.

1. "Plain View" Exception to the Fourth Amendment

The Government argues that Lt. Roth observed the gun in "plain view"while he was lawfully present in the apartment and, therefore, that nowarrant was required for its seizure. The "plain view" exception permitsofficers to seize objects that are in plain view where: (1) the officerwas legally in a position to observe the seized evidence; (2) the officerhad a lawful right of access to the evidence itself; and (3) theincriminating nature of the evidence was immediately apparent to theofficer. Horton v. California, 496 U.S. 128, 136-37, 2308, (1990); UnitedStates v. Jones, 187 F.3d 210, 219-21 (1st Cir. 1999). Defendant disputesall three elements of the test. The Court will address only the secondelement, which the Government has failed to satisfy.

a. Officers' Lawful Right Of Access To The Evidence

Defendant contends that the gun was not in plain view until Lt. Rothillegally moved Defendant's bag with his foot, which then exposed thefirearm to the officers. The Government argues that Lt. Roth testifiedthat he could see the barrel of the firearm before moving the duffel bagwith his foot. The record does not support his version of the crucialevents. Lt. Roth testified that he believed Defendant was hidingsomething — possibly drugs — and that he asked Defendant tostand up because he felt uncomfortable and couldn't as clearly watch whatDefendant was doing when he was seated on the duffle bags. OfficerStanton testified consistently with his report written within a day afterthe events. Stanton's report states that, after 11 asking Defendant tostand up, "Officer Roth asked [Defendant] to step away from the bag.Officer Roth then moved the bag with his foot." St. Laurent Aff. at 3.Officer Stanton testified that Lt. Roth then asked Defendant, "`What'sthat?,' as he bent down and picked something up." Tr. at 93. OfficerStanton's testimony clearly and consistently described the order ofevents: (1) Lt. Roth moved the bag with his foot, (2) the gun becamevisible, (3) Lt. Roth then bent down and asked Defendant, "What's this?,"while reaching for the gun. The Court does not credit Lt. Roth'stestimony that he saw the gun before he moved the bag.

In the absence of a warrant, a law enforcement officer needs probablecause to conduct a search. Here the evidence does not support a finding ofprobable cause. The Supreme Court has held that the moving of an objectinside a suspect's home "unrelated to the objectives of the authorizedintrusion, which exposed to view concealed portions of the apartment orits contents, did produce a new invasionof [Defendant]'s privacy unjustified by the . . . circumstance thatvalidated the entry." Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct.1149, 1152, 94 L.Ed.2d 347 (1987). In Hicks, officers had entered anapartment to search for a shooter and weapons immediately following ashooting, and, while present, they observed stereo equipment that theysuspected was stolen. The Supreme Court held that, although the originallawful objective of the officer's entry into the apartment justifiedseizure of the weapons, the officer's moving of the stereo in order toobtain its serial numbers constituted a separate "search" because "thedistinction between looking at a suspicious object in plain view andmoving it even a few inches is much more than trivial for purposes of theFourth Amendment." Id. (internal quotations omitted). The Court FINDSthat Lt. Roth's unauthorized moving of the bag constitutes a search andthat until the bag was moved the gun did not come into plain view.Therefore, the "plain view" exception to the Fourth Amendment does notapply.15

B. The Statements: Custody

Defendant argues that he was in custody from the time he was told atthe Lake District area that he would be free to leave only upon providingvalid ID to the officers. Defendant claims that all of his statementsresulted from custodial interrogation without the benefit of Mirandawarnings and, therefore, that they should be suppressed. The Governmentconcedes that Defendant was questioned without the benefit of Mirandawarnings prior to his arrest, but disputes that Defendant was incustody. Specifically, the Government asserts that Defendant was not incustody until he was handcuffed after stating that the firearm wasloaded. The Government analogizes this case to a Terry stop or a sobrietytest, which the Supreme Court has held to be noncustodial despite thedriver not being free to leave. See Terry, 392 U.S. at 29, 88 S.Ct. at1884; see also Berkemer v. McCarty, 468 U.S. 420, 441, 104 S.Ct. 3138, 82L.Ed.2d 317 (1984).

The safeguards provided for by Miranda apply to a person who isquestioned by law enforcement officers after being taken into custodyeither by formal arrest or by a restraint on freedom of movement to thedegree associated with formal arrest. Stansbury v. California,511 U.S. 318, 321-22, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (citingMiranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d694 (1966)); see also Dickerson v. United States, 530 U.S. 428, 120 S.Ct.2326, 147 L.Ed.2d 405 (2000). "Statements elicited in noncompliance withthis rule may not be admitted for certain purposes in a criminal trial."Stansbury, 511 U.S. at 322. The determinative issue in the custodyinquiry involves whether and when a reasonable person in the suspect'sposition would believe that he or she is under arrest or believe that hisor her freedom is otherwise significantly restrained. See Berkemer, 468U.S. at 442. The Court considers the totality of the circumstances inconducting this fact-intensive inquiry in order to determine "`how areasonable [person] in the suspect's position would have understood hissituation.'" Stansbury, 511 U.S. at 324, 114 S.Ct. at 1529 (quotingBerkemer, 468 U.S. at 442, 104 S.Ct. at 3151). Relevant considerationsinclude "whether the suspect was questioned in familiar or at leastneutral surroundings, the number of law enforcement officers present atthe scene, the degree of physical restraint placed upon the suspect, andthe duration and character of the investigation.'" Jones, 187 F.3d at217-18 (internal quotations omitted).

Although the Supreme Court has acknowledged that a traffic stopconstitutes a "`seizure' within the meaning of [the Fourth] Amendmen[t],even though the purpose of the stop is limited and the resultingdetention quite brief," Berkemer, 468 U.S. at 436-37 (quoting Delawarev. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660(1979)), an "ordinary traffic stop" does not usually necessitate Mirandawarnings. Id. at 437-38, 440. In Terry, the Supreme Court articulated onesuch exception permitting a law enforcement officer, whose observationshave led to a reasonable suspicion that a particular person hascommitted, is committing, or is about to commit a crime, to detain thatperson briefly in order to investigate the cirucumstances that provokedsuspicion. See Terry, 392 U.S. 1. "`[T]he stop and inquiry must be`reasonably related in scope to the justification for their initiation,'"which typically permits an officer to ask a "detainee a moderate numberof questions to determine his identity and to try to obtain informationconfirming or dispelling the officer's suspicions." Berkemer, 468 U.S. at439 (quoting Terry, 392 U.S. at 29, 88 S.Ct. at 1884).

1. Thomas's Statements At The Lake District Area

At the Auburn Lake District turnout, Lt. Roth asked Defendant foridentification, and Defendant replied that he didn't have anyidentification with him. Lt. Roth then asked Defendant what his namewas, and Defendant replied that it was Earl Thomas. After being notifiedthat he was being detained for the purpose of determining his trueidentity, Thomas was questioned by Lt. Roth about the location of hisID. Tr. at 10. Lt. Roth testified that he told Defendant: "if you show mea valid ID and that you're not wanted then you're free to go and we willpart and go our separate ways." Tr. at 13. Thomas responded by tellingLt. Roth where he was staying. Further questioning by Lt. Roth elicitedresponses from Defendant, including the name, address, and phone numberfor Carol Chandler, as well as statements regarding his criminalhistory. The Government relies on two distinct statutes for Lt. Roth'sauthority to detain Defendant: 17-A M.R.S.A. §§ 402(1)(C) and (2),which makes trespassing a misdemeanor, and 17-A M.R.S.A. § 15-A(2),which permits a law enforcement officer to detain for up to two hours asuspect who the officer has probable cause to believe has committed or iscommitting a crimewho intentionally fails or refuses to provide reasonably credibleevidence of his or her name and address. Defendant responds that afterthe dispatcher found no record of a person named Earl Thomas, Lt. Rothbelieved that Thomas had lied about his identity and that, because hecould detain him under Maine law, any further questioning of Thomas wouldlikely lead to incriminating responses.

The Maine statute cited by the Government authorizes Lt. Roth to"attempt to verify" evidence of a person's name and address if it "doesnot appear to be reasonably credible." 17-A M.R.S.A. § 15-A(2).Intentional refusal to furnish such information can ultimately justifyarrest — after informing the subject that such action constitutes acrime — but it also entitles an officer to ask identifyingquestions of the Defendant. Id. The Court need not reach Defendant'sargument that the booking exception to Miranda, which permits officers toinquire into a suspect's name and address during the process of arrest,is inapplicable here. See Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct.2638, 110 L.Ed.2d 528 (1990), United States v. Scott, 270 F.3d 30 (1stCir. 2001) United States v. Doe, 878 F.2d 1546 (1st Cir. 1989). Adetermination that Defendant was in custody when this initial questioningtook place at the Lake District area must precede such a discussionbecause Terry permits law officers to question a suspect for a brief timeupon the officer's reasonable suspicion that criminal activity is afoot.See Terry, 392 U.S. 1.

Applying the custody analysis to Defendant's initial stop, the CourtFINDS the following facts relevant to the custody determination. Thesetting at the Lake District area was unfamiliar, but at least neutral.During the course of the stop at the Lake District area, one officer andthen a total of two officers and two subjects were present on the sceneduring the course of the questioning. Defendant was not physicallyrestrained, but stood outside the vehicles. The investigation lasted lessthan an hour, commencing shortly after midnight and terminating at leastten minutes before 1 a.m., when they all left the scene for Lewiston.Finally, the character of the questioning related only to verifyingDefendant's true identity and criminal status. The Court thereforeCONCLUDES that the questioning that occurred before Defendant was placedin the police car did not diverge from that necessary "to determine hisidentity and to try to obtain information confirming or dispelling theofficer's suspicions," Berkemer, 468 U.S. at 439, initially raised by thetrespassing, and then by Defendant's apparent hesitation to provide histrue name. Because any custodial interrogation of Defendant at the LakeDistrict area was both within the aegis of the Maine statute and theambit of the Terry exception, he was not entitled to a Miranda warning,and his statements made there will not be suppressed.

2. Thomas's Statements At The Apartment

After this questioning, Ms. Edwards was permitted to drive away;whereas Thomas was told he would be detained until he produced ID, placedin the back of a locked police car, and taken to his apartment inLewiston. Tr. at 14, 74. The Government argues that the police transportto Lewiston did not rise to the level of arrest, citing that OfficerBurns referred to it as a "voluntary transport."16 Although Defendantapparentlywillingly agreed to be transported to Lewiston, the situation hadsurpassed that of a Terry stop and Defendant was substantiallyrestricted. Defendant had been told that he would be detained until heprovided valid ID and the police determined that he was not wanted. He wastransported to Lewiston in a locked cruiser, and both Lt. Roth andOfficer Burns testified that they would not have permitted Defendant togo unless and until they obtained a valid ID and determined that therewere no outstanding warrants for his arrest or violations of probationconditions.17 Defendant reasonably could have believed that he wasnot free to leave or to terminate the officers' inquiry into his trueidentity. The Court notes that Thomas did not get into the car with theperson he came with after questioning was terminated at the Lake Districtarea. In fact, if Defendant had not agreed in response to Lt. Roth'srequest that they go together to Lewiston to retrieve his ID, Lt. Rothand Officer Burns both testified that Defendant would not have beenpermitted to leave their supervision and control, and that fact would havebeen apparent to a reasonable person in Defendant's circumstances.

Although Thomas was detained and substantially restricted in hismovements from the time he was put into the police car at the LakeDistrict area, the officers nevertheless obtained consent to enter theChandler home. For safety reasons, the officers were entitled toaccompany Thomas to get his ID. The officers were admitted into thehome, following Thomas. No one denied them entry, and no one objected totheir presence. In fact, the occupants voluntarily complied with theirdirections. Defendant was still being lawfully detained by the officersuntil he satisfied them of his true identity and they had no furtherpurpose to detain him.

Once inside the apartment, the officers remained close to Defendant atall times. Three officers remained in the same room with him, all thewhile peppering him with questions about why he had been deceptive.Although Defendant was not physically restrained, he was not free toleave, and no reasonable person in his position would have thoughtotherwise. Furthermore, after Defendant provided valid ID and theofficers had determined he was not wanted, the officers neverthelessfailed to "leave him alone" or to let up on their interrogation. Tr. at40. At the apartment, Thomas's statements included: "that's where I'mstaying," referring to the room where the firearm was found. Tr. 21.Thomas also told the officers that he had served time in prison and hadbeen convicted of kidnapping and assault.

The Government has sufficiently alleged that new causes for reasonablesuspicion arose at the apartment to justify Defendant's continueddetention, including what Lt. Roth saw and thought to be marijuanaresidue and the confirmation of Defendant's earlier deception regardinghis identity and criminal record. The Government argues that even afterthe officers had determined Defendant's true identity, the police hadreason to believe that he was engaged in criminal activity and could,therefore, detain him and ask him questions.See Terry, 392 U.S. at 23-24. Specifically, the Government argues thatDefendant's statements about his criminal record and his initial lies topolice officers justified further questions even after he had providedvalid ID paperwork. Id. The officers knew or had reason to believe thatDefendant was a felon, and they were not about to let him out of theirtight control. By the time that Lt. Roth was insisting that Thomas comeclean about why he had previously been deceptive — after thedispatcher had confirmed that his ID was valid and that no warrants wereoutstanding for his arrest — there is little doubt that Defendantwas in custody, albeit for a lawful reason. See United States v. Kruger,151 F. Supp.2d 86 (D.Me. 2001). Three officers were closely watchingDefendant in his living quarters, asking him questions, and"investigating" what he might be hiding. The officers had taken activesteps to restrict and monitor Defendant's movement and to isolate him, aswell as to control the movements of other occupants.18 Given theofficer's call for a canine unit, a reasonable person should havebelieved that he would remain in their custody at least until they weresatisfied that no drugs were present on the premises. Nothing about theenvironment would have indicated to a reasonable person that the policepresence would abate in the near future or that Defendant was free toleave the apartment. Although the short amount of time that transpiredand evidence that Defendant acquiesed to the officers' presence in theapartment mitigate against a finding of custody, it was clear by anobjective standard that the officers would not have let Defendant go intothe apartment alone.

The officers' restriction of Defendant's movement transformed theotherwise neutral environment of Ms. Chandler's apartment into one ofpolice control. "[S]uch control, albeit for legitimate purpose, [e.g., forthe safety of the officers,] may result in a finding that a suspect is incustody." United States v. Bunnell, 106 F. Supp.2d 60, 67 (D.Me. 2000).The overall circumstances did not allow Defendant to leave the livingroom or terminate the questioning. In considering the character andduration of the interrogation, this Court has found that "[p]rolonged,accusatory questioning is likely to create a coercive environment fromwhich an individual would not feel free to leave." Bunnell,106 F. Supp.2d at 68. Although Defendant was previously told that he was notunder arrest, he was never told that he was free to leave or that hecould refuse to answer questions. Thus, while the Government hasestablished good reason for the officers to continue to detain Defendantfor further investigation as to whether he was involved in criminalactivity, it is unquestionably true that, in doing so, he was placed in astate of custody. They were then going beyond in their investigativeinquiry the purpose which created the basis for the exception to therequirements of Miranda: to obtain reliable, credible information toestablish Defendant's identity. The exception vanished when their pursuitdiverged to an inquiry as to whether Defendant was engaged in criminalconduct (e.g., what it was that Lt. Roththought that Defendant was hiding). Once that divergence occurred, theofficers could not pursue the new line of inquiry, because Defendant wasin custody, without administering the Miranda warning. There is adifference between the officers' right to maintain the detention forfurther legitimate purposes and whether they could pursue the new line ofinvestigation without administering a Miranda warning to Defendant. TheCourt CONCLUDES that while the detention could legitimately bemaintained, the Miranda warning was required before the questions aboutwhat Defendant was hiding could be put to him. The Court CONCLUDES thatthe statements Defendant made at the apartment, including that the livingroom was where he stayed and that he was a felon, were the result ofcustodial interrogation without the benefit of Miranda warnings, and theywill, therefore, be suppressed.

3. Thomas's Statements Upon Sight and Seizure of the Evidence

Once the gun was spotted by Lt. Roth, he asked Defendant twoquestions: "What is this?" and "Is it loaded?" Defendant answered that itwas a gun and that it was loaded. Defendant argues that these statementsresulted from custodial interrogation and that they directly resultedfrom the unlawful discovery of the firearm. The Government responds thatDefendant was not yet in custody and, even if he were in custody, thesestatements should not be suppressed because the public safety exceptionshould apply here to the questions and answers regarding the gun andwhether it was loaded. New York v. Quarles, 467 U.S. 649, 655-56, 104S.Ct. 2626, 81 L.Ed.2d 550 (1984); United States v. Shea, 150 F.3d 44, 48(1st Cir. 1998) (defendant's answer to agent's pre-Miranda questionwhether he had any weapons was admissible under public safetyexception). Because, when he saw the gun, Lt. Roth knew or had reason tobelieve that Defendant was a felon, the Court FINDS that Lt. Roth'squestions subjected Defendant to custodial interrogation, and that, atthis point, Defendant was entitled to Miranda warnings unless someexception justified the questioning.

Defendant argues that the public safety exception should not applywhere his answers did not "at least possibly enhance public safety . . .[because] any answer from Thomas would not have changed Lt. Roth'sactions and therefore could not have enhanced anyone['s] safety."Defendant's Post-Hearing Brief (Docket No. 19) at 13. Defendant continuesthat because Lt. Roth testified that he was a firearms instructor, thathe knew the firearm was in fact a firearm, and that he was going to treatit as a loaded firearm no matter how Thomas responded to his questions,the application of the public safety exception is prevented. Id. at 13(citing Tr. at 3, 26 & 54). The Supreme Court's Quarles holding carvesout a public safety exception that applies to a Defendant who isquestioned while in custody, where circumstances present an imminentdanger to the public safety. Quarles, 467 U.S. at 655-56. The publicsafety exception affords an opportunity for the officers to take custodyof the weapon in the safest possible manner, which may include askingDefendant whether or not it is loaded.

The Government's analysis is inapposite here. Quarles is factuallydistinguishable because the order of events in that case, i.e., that thestatements led to the gun, was the reverse of the situation here. Theofficers in Quarles knew there was a weapon and they didn't know itslocation — the exigent circumstances plainly justified the inquiry inthat case to protect the safety of the officers and the public. In thiscase, the sight of the gun prompted the statements. Lt. Roth's words, byhis own admission,were rhetorical. Tr. at 67-69. Lt. Roth also testified that he would haveseized the gun and handled it in the same manner regardless ofDefendant's response to the inquiry as to whether or not it was loaded.Tr. at 66-68. Therefore, Lt. Roth's questions did not enhance publicsafety. They did, however, elicit incriminating responses.

Interrogation "refers not only to express questioning, but also to anywords or actions on the part of the police (other than those normallyattendant to arrest and custody) that the police should know arereasonably likely to elicit an incriminating response from the suspect."Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64L.Ed.2d 297 (1980). By the time Defendant answered Lt. Roth's questionsregarding the gun, Lt. Roth knew or had strong reason to believe thatDefendant was a felon. This made immediately apparent the incriminatingnature of the gun and, therefore, of questions about the gun.Furthermore, unlike in Quarles, there was no imminent threat becauseDefendant had moved away from the bag and Lt. Roth was in the process ofreaching for it when he said, "What's this?," and Lt. Roth had alreadypicked it up when he asked whether it was loaded.

In Shea, 150 F.3d at 48, the Court of Appeals for the First Circuitrecognized that asking a suspect if he is armed goes up to the line butdoes not go outside permissible Quarles inquiry because the "questionwould have facilitated the securing of any weapons on Shea's personwhether or not the agent intended to conduct a search of the suspect."This is not that case. Whereas the officers in Shea did not know whetheror not the suspect was armed, Lt. Roth testified that he knew immediatelywhat the gun was when he saw it, and would not have acted any differentlyin the absence of information about it being loaded. Similarly, inQuarles, the exigency of awareness of a lingering threat led to thechallenged conduct. Lt. Roth admitted that a suspect's claim that a gunis unloaded produces no less of a threat than getting no information froma suspect because Lt. Roth does not "take someone's response tooseriously." Tr. at 66-67. The Court CONCLUDES that the public safetyexception does not apply to Defendants' statements about the gun, uponits discovery, and the statements will be suppressed.

4. Thomas's Statements to Officer Randy St. Laurent

Defendant argues that his statements made to Officer St. Laurent at theAndroscoggin County Jail were the result of the unlawful discovery of thefirearm and prior Miranda violations and that they should, therefore, besuppressed. Defendant contends that the Miranda warnings concededly givenat the jail do not remove the taint of the prior illegal search and theinterrogation about the gun in violation of Miranda. The Governmentargues that, even though Defendant was in custody, all of his statementswere otherwise voluntary and, therefore, that the exclusionary rule doesnot apply. But here, where the prior Constitutional violation is animproper search, the "fruit of the poisonous tree" doctrine outlined inWong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441(1963), governs evidence discovered as a direct result of the unlawfulsearch.19 The holding ofWong Sun dictates application of the exclusionary rule to evidencediscovered as a result of a search in violation of the Fourth Amendment,whether it is tangible, physical evidence or a subsequent confession.Oregon v. Elstad, 470 U.S. 298, 305-06, 105 S.Ct. 1258, 1291, 84 L.Ed.2d222 (1985).

In United States v. Campa, 234 F.3d 733 (1st Cir. 2000), the Court ofAppeals for the First Circuit held that an unlawful frisk, where officersremoved Defendant's wallet from his pocket, did not taint Defendant'ssubsequent arrest based on his later voluntary production of acounterfeit driver's license. "[O]ur cases make clear that evidence willnot be excluded as `fruit' unless the illegality is at least the `butfor' cause of the discovery of the evidence. Suppression is not justifiedunless `the challenged evidence is in some sense the product of illegalgovernment activity.'" Id. 234 F.3d at 740 (quoting Segura v. UnitedStates, 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984)(citation omitted)). Here, both parties stipulated that Defendant'sstatements to Agent St. Laurent were made after "proper and sufficient"Miranda warnings had been administered. Tr. at 106-07. The Court FINDSthat, although Defendant waived his Miranda rights after proper warningsat the Androscoggin County Jail, the illegal discovery of the gun was the"but for" cause of his arrest and of this post-Miranda confession.Therefore, the Court CONCLUDES that Defendants later statements toOfficer St. Laurent, though voluntarily made, were the "product ofillegal government activity" and that the exclusionary rule applies.Defendant's statements made at the Androscoggin County Jail after hisarrest are inadmissible and will, therefore, be suppressed.

III. CONCLUSION

Accordingly, the Court ORDERS that Defendants' Motion to Suppress be,and it is hereby, GRANTED in part (as to the firearm and to thestatements made prior to his arrest at the apartment, the answers to thequestions about the gun, and the post-arrest statements made to AgentSt. Laurent), and DENIED in part (as to the statements made at the LakeDistrict area).

1. Officer Burns testified that "shortly after midnight . . . [he]heard that Lieutenant Roth made a stop by Lake Auburn by a pull[ed] overvehicle and [he] proceeded in that direction to back him up." Tr. at71-72.

2. Lt. Roth testified that he requested identification because thepolice department keeps records of warnings given, and the officers"normally issue a summons for criminal trespass . . . [only] if someonewas in there twice." Tr. at 31, 30.

3. Lt. Roth testified that if a person has a valid stateidentification, the computer databases that were checked would indicate arecord of it. Tr. at 7-8.

4. However, Lt. Roth did not ask the dispatcher to check the AuburnPolice Department records to see if Defendant had previously been issueda warning for the trespassing offense. Tr. at 32, 62-64.

5. Ms. Edwards was permitted to drive away from the scene in her carwithout a check of whether she had been previously warned for trespassand without being given a summons. Tr. at 32-33.

6. Lt. Roth testified that he knocked on the door and Ms. Chandleranswered (Tr. at 16); Mr. Moody testified that he answered a knock and helet only Defendant in, but the officers pushed open the door again as hewas closing it (Tr. at 111); Officer Stanton testified that he didn'trecall anyone knocking, that the door was unlocked, and that Defendantopened it and entered followed by the officers (Tr. at 90). OfficerStanton further testified that he did not see anyone come to meet them atthe door or immediately after they entered the apartment (Tr. at90).

7. No one told the officers that they were not permitted to enter andno one asked them to leave. Tr. at 18, 130, 146.

8. Lt. Roth testified that the officers had been present on the scene"for several minutes, probably 8 [to] 10 minutes before [Defendant] foundthat paperwork." Tr. at 44.

9. The canine unit did not arrive until after the gun had been foundand Defendant had been handcuffed; a search by the dog found no drugs onthe premises. Tr. at 61.

10. St. Laurent's affidavit only summarizes Roth's and Stanton'sreports. Neither Roth's nor Stanton's report was introduced into evidenceat the hearing.

11. Officer Stanton wrote in his report: "Officer Roth asked[Defendant] to step away from the bag. Officer Roth then moved the bagwith his foot." St. Laurent Aff. at 3. Officer Stanton testified that "hewas watching the [Defendant]" and the gun was not visible before the bagwas moved because "it was under the bag." Tr. at 101. At the suppressionhearing, Officer Stanton testified consistently with what he wrote in hisreport; namely, that he saw Lt. Roth "slightly with his foot, he likemoved, pushed [the bag] aside." Tr. at 99.

12. The gun was found at approximately 1:28 a.m. Tr. at 27-28. At 1:33a.m., Lt. Roth radioed the dispatcher with the serial number of the gunto determine whether it was stolen. Tr. at 27-28.

13. The Court does not find Lt. Roth's or Officer Burns's testimonycredible on this point. Lt. Roth and Officer Burns did testifyconsistently that Lt. Roth asked Defendant, "What's this?" or "What'sthat?," to which Defendant replied, "It's a gun," and that Lt. Roth askedDefendant whether it was loaded, and Defendant replied that it was. Tr.at 25, 26, 80-81. The officers' testimony contradicts Officer Stanton'saccount, however, with regard to the timing of events, and the Courtcredits Officer Stanton's testimony that the gun was not visible to anyof the officers before Lt. Roth moved the bag with his foot. OfficerBurns also testified that he did not see the gun before Lt. Roth asked,"What's this?," but he testified that Lt. Roth asked the question whileDefendant was sittting down on his bags and going through his things.Tr. at 80-81, 82, 85. This is not consistent with any other testimony inthe record. Officer Burns said that, after Lt. Roth asked the question,he looked over and the gun "appeared to be laying on the floor outside ofthe bag partially concealed." Tr. at 82.

Lt. Roth testified that he first observed something shiny, and then heasked: "`What's this?,' Defendant said, `it's a gun,' and at that point Imoved the duffle bag [with my foot, and] asked him, prior [sic] if it wasloaded and he said it was." Tr. at 25, 26. Upon further questioning, Lt.Roth stated: "I kicked it out of the way," after Defendant responded thatthe gun was loaded. Tr. at 27. When asked whether he searched Defendant'sbags after finding the firearm, Lt. Roth confusingly testified: "Iremember looking through not to the point that I would have emptied thecontents. I remember moving around to see where the gun was." Tr. at 61.

Although testimony from Carol Chandler and Justin Moody tends tocorroborrate Officer Stanton's testimony on this point, the Court did notfind these witnesses credible on this issue and does not, therefore, relyon their statements. Ms. Chandler testified that Defendant produced an IDfrom his wallet, rather than a photocopy of an ID, and she testified thatthe officers unzipped Defendant's bags and looked through them for 4-5minutes. Tr. at 143-44. Mr. Moody's testimony about Defendant producing acopy of his ID was consistent with much of the other evidence; however,he also testified that the officers unzipped Defendant's bags and lookedthrough them briefly, finding the gun almost immediately. Tr. at 114-15.Both Chandler and Moody admitted that they do not like the Auburn PoliceDepartment, and that they have a civil suit pending against the AuburnPolice Department and the Androscoggin County Sheriff arising from astrip search that allegedly occurred during a traffic stop of Mr. Moodywhen he was a minor. Tr. at 134, 147, 148-50.

14. Officer St. Laurent's report summarizing this interview wasadmitted for the limited purpose that the record for suppression includethe statements Defendant made. Tr. at 107-08; see also Complaint, St.Laurent Aff. (Docket No. 1).

15. No other exception applies here. An officer's investigatoryauthority under Terry permits only a frisk of the person for weapons, andonly where officers have reason to believe that a weapon is present. SeeUnited States v. Scott, 270 F.3d 30, 42 (1st Cir. 2001) (quoting Sibronv. New York, 392 U.S. 40, 63-66, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)."[To conduct a] self-protective search for weapons, [an officer] must beable to point to particular facts from which he reasonably inferred thatthe individual [searched] was armed and dangerous." Id. A warrantlesssearch is justified only by a showing of probable cause. Lt. Rothtestified that he believed Defendant was being deceptive about somethingbesides his identity and criminal status — possibly drugs —but that the officers did not have probable cause or even reasonablesuspicion that necessitated a search for weapons in particular. Theevidence shows that the officers had been in the apartment for longerthan ten minutes and closer to half an hour: the officers arrived around1:00 a.m. and the gun was found around 1:28 a.m. Furthermore, there wasno credible exigency or safety consideration. To the contrary, Lt. Rothtestified that he "allowed [Defendant] to go through his bags"unimpeded. Tr. at 44. Lt. Roth stated that Defendant: "kind of pawedthrough a couple of duffle bags, . . . [and h]e was kind of haphazardlygoing through them . . . moving things around" for approximately eight toten minutes. Tr. at 19, 44. Clearly Lt. Roth did not suspect there was aweapon in the bag and had no objectively reasonable basis to do so.

16. Although protesting that Defendant was not in custody, theGovernment conceded at the suppression hearing that the circumstancessurrounding the transport more closely approached such a status. TheGovernment agreed that there is no "question but what . . . anobjectively reasonable person in the position of this defendant [duringthe transport] would have known that he was detained and that he was notfree to leave." Tr. at 76.

17. There is nothing in the record that indicates that any questionswere asked of Defendant or that he made any statements during the courseof the transport.

18. The officers stayed close to Defendant; Lt. Roth testified thatthey followed him into the house, through the kitchen and into the livingroom, where they remained during the course of events that evening. Tr.at 21, 44. Officer Burns testified that Defendant was between Lt. Rothand himself while Defendant was searching his bags in the living room.Tr. at 79. Officer Stanton testified that Defendant was between the threeofficers when the gun was found. Tr. at 95. Officer Stanton alsotestified that he was keeping an eye on Mr. Moody. Tr. at 92. Ms.Chandler testified credibly that she asked and received the officers'permission before returning upstairs. Tr. at 155.

19. Were the only Constitutional violation up to this point thefailure to administer Miranda warnings in the course of custodialinterrogation, the Government is arguably correct that Defendant'ssubsequent voluntary statements to Officer St. Laurent, after properMiranda warnings, might be admissible. But see, United States v. Kruger,151 F. Supp.2d 86 (D.Me. 2001) (holding that after Dickerson v. UnitedStates, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), violationof Miranda renders the fruits of the improper questioning a violation ofconstitutional dimension which requires suppression of them as "fruits ofthe poisonous tree" under the doctrine of Wong Sun). The decision inKruger has not been, and will not be, subjected to appellate reviewbecause the case has been dismissed due to the death of the Defendant inthe course of the prosecution.

Here the Court renders no decision as to whether in the circumstancesof this case, the violation of Miranda in respect to the questioningabout the gun would alone require suppression of the fruits of thepost-Miranda questioning under the doctrine of Wong Sun.

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