227 F. Supp.2d 161 (2002) | Cited 0 times | D. Maine | August 7, 2002


The United States Magistrate Judge filed with the court on July 9,2002, withcopies to counsel, his Recommended Decision on Motion toSuppress. The government filed an objection to the Recommended Decisionon July 23, 2002. I have reviewed and considered the RecommendedDecision, together with the entire record; I have made a de novodetermination of all matters adjudicated by the Recommended Decision; andI concur with the recommendations of the United States Magistrate Judgefor the reasons set forth in his Recommended Decision, and determine thatno further proceeding is necessary.

I observe that the government no longer presses the exigentcircumstances argument and that it also accepts the Magistrate Judge'sfactual findings. Based on the record that the government created at thesuppression hearing and the Magistrate Judge's findings, I agree with hisconclusion that a reasonable person (including an officer) would notconclude that Ms. Malloch gave consent to the search.

It is therefore ORDERED that the Recommended Decision of the MagistrateJudge is hereby ADOPTED. The defendant's motion to suppress evidence, asclarified during oral argument to be limited to the warrantless search ofthe Malloch home and seizure of a Jennings J-22 .22 caliber pistol,serial number 280812, is GRANTED.


Ernest B. Weidul, charged with being a felon in possession of a firearm(a Jennings model J-22 .22 caliber pistol, serial number 280812) inviolation of 18 U.S.C. § 922(g) and 924(e), seeks to suppressphysical evidence seized as the product of a warrantless search andseizure in Kennebunk, Maine, on January 11, 2001. Indictment (Docket No.1); Defendant Weidul's Motion To Suppress, etc. ("Motion") (Docket No. 8)at 1.1 An evidentiary hearing was held before me on July 2, 2002 atwhich the defendant appeared with counsel. Oral argument immediatelyfollowed the hearing; in addition, the government submitted apost-hearing memorandum. See Government's Supplemental Memorandum inOpposition to Defendant's Motion To Suppress (Docket No. 12). Based on theevidence adduced at the hearing, I recommend that the following findingsof fact be adopted and that the motion to suppress be granted.

I. Proposed Findings of Fact

At approximately 10:10 p.m. on January 11, 2001 mental-healthcrisis-response worker Kathleen Hobbs, working from offices in theemergency department of Southern Maine Medical Center ("SMMC") inBiddeford, Maine, fielded a hotline call from a man who ultimatelyidentified himself to her as Ernest Weidul. Weidul told Hobbs he would"blow his head off" when she hung up the phone and that there was nothingshe could say or do to stop him. Hobbs heard a tapping noise and askedWeidul what it was; he told her that he was holding a loaded .22 in hishand two inches from his face, and the barrel of the gun was tappingagainst the phone. Weidul seemed to Hobbs to be slurring his words andintoxicated. Hobbs heard a woman screaming in the background, "Oh myGod, don't do it, don't doit." She asked Weidul who the woman was;Weidul said she was his fiancie but refused to allow Hobbs to speak withher.

As Hobbs was talking to Weidul, she signaled her co-worker,crisis-response worker Kate Gallagher, to phone the police. Gallagher,who had ascertained that the call was coming from a residence inKennebunk, phoned the Kennebunk Police Department. Per protocol, Hobbskept Weidul on the line as long as possible. As the conversationcontinued, Hobbs scribbled notes to Gallagher, who in turn relayed thisinformation to the Kennebunk police dispatcher. Specifically, Gallaghertold police that Weidul was threatening suicide, had a loaded .22 in hishand, had been drinking, had two boxes of ammunition and was threateningto shoot police officers. She also relayed that Weidul was at hisfiancie's house at 1 Wallace Street, that his fiancie was with him andthat he would not allow his fiancie to talk to crisis-response workers.After about five minutes, Weidul hung up on Hobbs, reiterating that therewas nothing she could do to stop him from killing himself.

Sergeant Harry Dumont and patrol officers Wayne Etheridge and ZacharyBrooks Harmon of the Kennebunk Police Department responded to theemergency call, agreeing to meet at a "staging area" on Beach Street,near (but not visible from) 1 Wallace Street. Pursuant to a mutual-aidagreement between the towns of Kennebunk and Kennebunkport, SergeantKeith Mills of the Kennebunkport Police Department also was called in toassist. While the officers were en route, the Kennebunk police dispatcherreceived a phone call from a woman who identified herself as TrishMalloch at 1 Wallace Street, who reported that Weidul had passed outasleep, that there was no gun involved, and "that's all there was to it."The dispatcher, who was in simultaneous communication with officers enroute, asked Malloch to meet the officers outside her house, and sheagreed.

Mills knew Weidul from two previous law-enforcement encounters in whichWeidul had threatened to shoot his mother, father and/or sister, andconsidered Weidul a very dangerous man. Mills also knew Malloch from herwork and from minor traffic stops, but had no reason to believe she wasnot permitted to possess a firearm. Harmon did not know Weidul personallybut had been warned prior to the incident in question to approach himwith caution should the need arise inasmuch as Weidul had a propensityfor violence and a history of mental instability. Harmon knew Mallochfrom previous minor traffic stops and chance encounters. He perceived heras somewhat unstable and as a "cop nut" — fascinated by weapons andprofessing an interest in becoming a police officer herself. Dumont,Mills, Etheridge and Harmon met at the prearranged staging area andquickly devised a plan whereby Etheridge and Harmon were to "set up aperimeter," using their patrol cars to block off access to both ends ofBeach Street within one hundred yards of Wallace Street, and Mills andDumont were to meet Malloch, enter the Malloch residence and attempt totake Weidul into protective custody. All four police officers were inuniform and in marked patrol cars.

Per plan, Etheridge and Harmon set up a perimeter on Beach Street, andDumont and Mills met Malloch outside her home. They conversed with Mallochas they moved past her into the home, asking her where Weidul and the gunwere. Malloch told them Weidul was upstairs sleeping and denied thatthere was a gun. She did not protest their entry. Mills perceivedMalloch as "cooperative" with police, albeit "distraught with thesituation."2

Dumont and Mills proceeded up the stairs, yelling "police." Althoughthere was a light on in the hallway, the upstairs was dimly lit enoughthat the officers decided to use flashlights for illumination. Mills sawa still form in a bed in one of the upstairs bedrooms. The officerscautiously approached and ordered the person to show his hands. They gotno response. Dumont pulled the covers back to check for weapons and foundnone. Weidul was lying prone on the bed non-responsive, apparently soundasleep. Dumont sat Weidul up in bed while Mills checked for a weaponunder his pillow, finding none. At approximately this time, Dumontradioed Etheridge and Harmon to bring their cruisers in toward the houseand come in to assist.

Mills then turned his attention to handcuffing Weidul, but decidedagainst using the standard handcuffs he had with him when he noticedhealing lacerations on Weidul's wrists. He left Weidul with Dumont, wentback out to his cruiser, retrieved some plastic "flexcuffs," returned andflexcuffed Weidul. Weidul was groggy, lethargic and incoherent; however,he did tell Mills and Dumont words to the effect, "Just shoot me now."After Weidul was flexcuffed, Mills took a quick look around the bed tomake sure there were no weapons in reach. He spied a gun-cleaning kit anda small, uncovered plastic box containing medication bottles and.22-caliber ammunition.

When Harmon entered the house, Malloch was sitting in an armchair inher living room. She said "hi" to Harmon, and he said hello. Harmon wentupstairs to see if he could help. Mills, Dumont and Harmon escorted thestill-groggy Weidul down the stairs and out to the waiting patrol car ofKennebunk police officer Anthony Clukey, who, upon the start of his shiftat 10:30 p.m., had been detailed to transport Weidul from the Mallochresidence to SMMC. Clukey immediately departed with Weidul for SMMC.

Mills, Dumont and Harmon returned to Malloch's downstairs living room.Mills could not recall whether the officers' weapons were drawn at anypoint prior to Weidul's departure; however, he was certain that no weaponswere drawn after Weidul left. Etheridge had remained inside the Mallochliving room, and Malloch was sitting in the same armchair conversing withKennebunk police captain Mike LeBlanc, who had arrived on the scene atsome time subsequent to Mills' and Dumont's initial entry. However,neither Mills nor Harmon overheard the conversation between LeBlanc andMalloch.3 Malloch's teenage daughter was running in and out of thehouse, crying, because in the commotion the officers had let her dogout. An older teenage daughter was expected home shortly from work.

None of the officers had a search warrant. However, in Malloch'spresence, LeBlanc instructed the officers to ensure for safety reasonsthat there were no weapons in the house. Malloch did not protest, orderthe officers out or otherwise tell them not to conduct the search. ToHarmon, she appeared "blasé" — unconcerned that a search wastranspiring and engaging in what seemed to Harmon to be "small talk" withLeBlanc. Mills began looking around the living room and sawammunition rounds in plain view, on shelves and on the floor next to thechair where Malloch was sitting. However, he found no weapons in the livingroom.

Harmon proceeded toward the kitchen (adjacent to the living room),telling Malloch, "I'm going to look in here, okay?" After a few momentssizing up the cluttered kitchen, Harmon moved on to a small laundry roomadjacent to the kitchen, telling Malloch, whom he could still see fromthat vantage, "I'm going to look in here." Malloch responded, "Okay."Harmon began kicking piles of dirty clothes on the floor. His boot soonstruck something metallic. He reached down, found a .22-caliber handgun,and called out "gun" to his fellow officers to alert them to hisdiscovery. Harmon ejected a magazine filled with several rounds from thegun, ejected a live round from the gun's chamber and handed the weapon toanother officer. The officers continued to search for approximatelyanother hour, finding no other weapons.4

Neither Mills nor Harmon knew whether Weidul would be releasedfollowing his assessment at SMMC. In fact, Weidul was arrested and jailedfor violating probation following his release from SMMC.

II. Discussion

The Supreme Court "consistently has held that warrantless searches andseizures in a home violate the Fourth Amendment absent consent or exigentcircumstances." Griffin v. Wisconsin, 483 U.S. 868, 883 (1987)(Blackmun, J., dissenting). The government bears the burden ofdemonstrating that at least one of these exceptions exists. See, e.g.,United States v. Baldacchino, 762 F.2d 170, 176 (1st Cir. 1985) ("Theburden of showing exigent circumstances rests upon the government.");United States v. Esquilin, 42 F. Supp.2d 20, 27 (D.Me. 1999), aff'd,208 F.3d 315 (1st Cir. 2000) ("[W]hen [the government] seeks to rely uponconsent to justify the lawfulness of a search, [it] has the burden ofproving that the consent was, in fact, freely and voluntarily given.")(citation and internal quotation marks omitted).

Here, the government relies upon both consent and exigent circumstancesto justify the warrantless search that ultimately yielded the weapon inissue. It carries its burden of proof as to neither.

I turn first to the claim of exigency. "Exigent circumstances existwhere law enforcement officers confront a compelling necessity forimmediate action that w[ould] not brook the delay of obtaining awarrant." United States v. Tibolt, 72 F.3d 965, 969 (1st Cir. 1995)(citations and internal quotation marks omitted). By the time Harmon andother officers began systematically searching for weapons in the Mallochhome, Weidul was being transported in flexcuffs to SMMC. Nonetheless, inthe government's view, circumstances remained exigent in that: (i) forall anyone knew, Weidul upon his release from SMMC might have returned tothe home, and (ii) regardless, any concealed weaponsthemselves posed adanger to Malloch and her teenage children. However, when asked at oralargument if there was any reason the police could not have secured theMalloch home while one of their number obtained a warrant, counsel forthe government could think of none.

Weidul, the only person known to have posed a danger to anyone'ssafety, had been removed prior to the search; there was no longer anyreason to believe anyone was in imminent danger of attack. Lingeringsafety concerns notwithstanding, any exigency had ended.5 See, e.g.,Parkhurst v. Trapp, 77 F.3d 707, 711 (3rd Cir. 1996) (For circumstances"to qualify as exigent, the officers reasonably must believe that someoneis in imminent danger.") (emphasis in original); United States v. Doe,61 F.3d 107, 110 n. 5 (1st Cir. 1995) ("[A]ny exigency adequate tosupport a warrantless search for explosives lapsed at or about the timeof Pizarro's arrest, since he obviously would not be permitted to remainat large in the airport or to board an aircraft."); United States v.Pixley, 7 F. Supp.2d 52, 54-55 (D.D.C. 1998) (warrantless search forweapon after couple was handcuffed did not qualify as "protective sweep"within meaning of Maryland v. Buie, 494 U.S. 325 (1990); test forpropriety of such a protective sweep is "whether the searching officerpossesse[d] a reasonable belief based on specific and articulable factswhich, taken together with rational inferences from those facts,reasonably warrant[ed] the officer in believing . . . that the area sweptharbored an individual posing a danger to the officer or others.");compare, e.g., United States v. Bartelho, 71 F.3d 436, 442 (1st Cir.1995) (exigency persisted when police had reason to believe armed suspectremained in home); United States v. Henry, 48 F.3d 1282, 1284 (D.C. Cir.1995) (exigency persisted, even after suspect taken into custody, whenofficers had been informed that suspect's so-called "boys" or"counterparts" might have accompanied him).

I finally consider the question of consent. "Valid consent renders awarrantless search constitutionally permissible, and while consent mustbe voluntary to be valid, there is no requirement that the person whogave consent must have been explicitly advised of the right to withholdit." United States v. Perez-Montaqez, 202 F.3d 434, 438 (1st Cir. 2000)."It is the prosecution's burden to establish, by a preponderance of theevidence, that consent was freely and voluntarily given; there must bemore than mere acquiescence in the face of an unfounded claim of presentlawful authority." Id. (citation and internal quotation marksomitted).6 "The district court's conclusion as to whether consentwas freely given must take into account the totality of the circumstancessurrounding the interaction between the defendant and the authorities."Id. This interaction, in turn, is measured by a standard of "objectivereasonableness — what would the typical reasonable person haveunderstood by the exchange between the officer and the suspect?" UnitedStates v. Turner, 169 F.3d 84, 87 (1st Cir. 1999) (citations and internalquotation marks omitted).7

At oral argument, the government contended that Malloch both expresslyand impliedly consented to the search that yielded the .22 caliber pistol— expressly, by stating "okay" when Harmon told her that he wasgoing to search the laundry room, and impliedly, by her generallycooperative (even friendly) demeanor. The facts, as I have found them,simply do not stretch that far. Malloch was not at all initiallyreceptive to a police search of her home for weapons; instead, she calledthe Kennebunk police dispatcher in a futile attempt to head off policeintervention, emphasizing that there was no gun. Mills admitted that whenthe police did ultimately arrive, Malloch was distraught at least in partbecause they were there. The government adduced no evidence that anyone,at any point, actually asked Malloch for her permission to do anything.Instead, the conduct of the officers from the moment of their arrival at1 Wallace Street bespoke a steely determination both to remove Weidul andto find and remove any weapons in the home — consentnotwithstanding.

After Malloch met Mills and Dumont outside her home, the two officersliterally moved past her into her residence, hurrying up the stairs tofind Weidul. As defense counsel conceded, the officers' initial entry andtaking of Weidul into protective custody were entirely warranted by thethen-existing exigency of the circumstances. However, this entry set thetone for the evening. From all that appears, the officers continued tobelieve (in good faith, but erroneously) that they had a right, even aduty, to rid the Malloch house of weapons, thereby ensuring the safety ofMalloch, her minor children and the public at large.

The record does not reveal that LeBlanc sought or received Malloch'spermission to search; instead, he ordered his officers to commence asearch of the entire premises that lasted at least one hour past thepoint at which Harmon found the weapon in question. As Malloch sat in herliving-room armchair, four uniformed officers (Mills, Dumont, Harmon andEtheridge) combed at LeBlanc's direction throughout her house.Tellingly, Harmon did not ask Malloch whether he could search either thekitchen or the laundry room; he had no reason to do so, having beenordered by his boss to conduct the search in question. Instead, he toldher he was about to do so.8 Under all of these circumstances,Malloch's uttering of the word "okay" as Harmon stated that he was aboutto search thelaundry room (meanwhile walking purposefully in thatdirection) was not a consent to search — it was a simpleacquiescence to what any reasonable person would have perceived, underthe circumstances, as police conduct tantamount to a claim of lawfulauthority to search for weapons. See, e.g., United States v. Zurosky,614 F.2d 779, 789 n. 11 (1st Cir. 1979) (consent could not be inferredfrom defendants' conduct in escorting officers who boarded vessel tosearch point if one were to credit defendants' version of story "thatthey were told that the vessel was to be searched, and the only optionthey had was as to its location."); Robbins v. MacKenzie, 364 F.2d 45, 49(1st Cir. 1966) ("We agree . . . with cases holding that courts should beskeptical of a purported consent to a search made after the officer hadbeen admitted. Acquiescence in such a case may well be mere `bravado,' ormay be granted in Esquilin, 208 F.3d 315, 317-18 (1st Cir. 2000) (expressconsent found when suspect stated, after being asked if he mindedofficers looking around to make sure there were no drugs in his hotelroom, "No, go ahead, look anywhere you want").

Nor can one, under these circumstances, infer voluntary consent to ahousehold-wide search for weapons from Malloch's seemingly cooperativeconduct — i.e., her lack of protest, her greeting of Harmon when hefirst walked into her house, her seeming "blasi" attitude as the searchunfolded or her making of "small talk" with LeBlanc. As the First Circuithas cautioned, "where the officer's real objective is search and seizurethe householder's consent should not only be clearly voluntary, but alsospecifically directed toward search and not merely toward entry."MacKenzie, 364 F.2d at 49. Unlike cases in which consent to the preciseact in question can be inferred from conduct, in this instance Malloch's"small talk," greeting of Harmon, seeming "blasi" attitude and so forthhad no particular connection to or bearing on the household-wide searchfor weapons. Compare, e.g., id. at 48 ("When a householder, knowing theidentity and purpose of his caller, opens his door and turns backinside, he expresses by his actions as adequate a consent to entry as hewould by a verbal invitation."); United States v. Zapata, 18 F.3d 971,977 (1st Cir. 1994) ("Appellant freely surrendered the keys to both thedoors and the trunk; and it is settled law that the act of handing overone's car keys, if uncoerced, may in itself support an inference ofconsent to search the vehicle."). Under the totality of thesecircumstances, a reasonable person would not understand the police tohave sought, or Malloch to have given, consent to a search of her homefor the presence of weapons.

III. Conclusion

For the foregoing reasons, I recommend that the defendant's motion tosuppress evidence, as clarified during oral argument to be limited to thewarrantless search of the Malloch home and seizure of a Jennings J-22 .22caliber pistol, serial number 280812, be GRANTED.

1. The Motion sought to suppress any statements made by Weidul as wellas any physical evidence seized following a warrantless arrest, searchand seizure on January 11, 2001. See Motion at 1. However, during oralargument on July 2, 2002 defense counsel conceded that the warrantlessarrest of Weidul was proper and clarified that he sought only suppressionof the firearm.

2. On cross-examination, Mills acknowledged that he had previouslytestified before a grand jury that Malloch was upset that the police werethere.

3. Neither Malloch nor LeBlanc was called to testify at theevidentiary hearing held before me.

4. During oral argument immediately following the evidentiaryhearing, defense counsel questioned Harmon's credibility given his"attitude" and discrepancies between his and Mills' testimony (e.g., asto whether the "staging area" was a Franciscan monastery or an innelsewhere on Beach Street, whether Weidul was handcuffed when Harmonfirst saw him, whether Harmon observed Mills leaving the residence toobtain the flexcuffs, and whether Harmon did or did not assist in gettingWeidul downstairs to Clukey's patrol car). I judged Harmon to be acredible witness. That the officers' testimony as to these sorts of lessimportant details would diverge is not particularly surprising, given thespeed with which events were unfolding up to the time Weidul was takeninto custody and the tension of the circumstances until then.

5. I note that while one might question the wisdom of concealing aloaded weapon in a home (particularly a home in which minor children arepresent), a person lawfully in possession of a weapon may legally do so.

6. While the question sometimes is framed as one of whether consenthas been "freely and voluntarily" given, the concepts are equivalent.See, e.g., United States v. Drayton, 122 S.Ct. 2105, 2113 (2002) ("Weturn now from the question whether respondents were seized to whetherthey were subjected to an unreasonable search, i.e., whether theirconsent to the suspicionless search was involuntary."); United States v.Chhien, 266 F.3d 1, 7 (1st Cir. 2001) ("Consent is voluntary if it is theproduct of an essentially free and unconstrained choice.") (citation andinternal quotation marks omitted).

7. There is no question, in this case, that Malloch had "standing," orauthority, to consent to the search of the premises. See, e.g., UnitedStates v. Woodrum, 202 F.3d 1, 9 (1st Cir. 2000) ("[W]hen the prosecutionseeks to justify a warrantless search by proof of a voluntary consent, itis not limited to proof that consent was given by the defendant, but mayshow that permission to search was the belief that by now there is nochoice.") (citations omitted); compare, e.g., United States v. obtainedfrom a third party who possessed common authority over or othersufficient relationship to the premises or effects sought to beinspected.") (citation and internal quotation marks omitted). As notedearlier, 1 Wallace Street is Malloch's residence.

8. I recognize that Harmon's initial comment to Malloch wastechnically a question: "I'm going to look in here, okay?" However, underall of the circumstances, a reasonable person would have understood thisto be more in the nature of a declaration than a genuine request forpermission. In fact, Malloch did not even respond to this initialcomment.

Back to top