106 F. Supp.2d 60 (2000) | Cited 0 times | D. Maine | July 11, 2000


Defendant has filed a Motion to Dismiss the Indictment (Docket No.8) and a Motion to Suppress (Docket No. 9). The Government opposesboth Motions. See Docket Nos. 13 and 14.


On August 25, 1998, Lisa Bunnell, Defendant's ex-wife, applied tothe Maine District Court for an order of protection from Defendant. Atemporary order for protection was issued that day after an ex partehearing. Government. Ex. 1. The order contained a notice to Defendantthat Lisa Bunnell had initiated a protection from abuse/harassmentaction and that he or his attorney had to appear before the court onSeptember 11, 1998, at 9:00 a.m. The order contained the followingwarning in bold typeface:


Government Ex. 1. Lewiston Police Officer Timothy Morin served thetemporary order on Mr. Bunnell by hand on August 25, 1998. Government Ex. 1.

On September 11, 1998, a hearing was held on the permanent order.Defendant did not appear at the hearing. The court issued a permanentorder, and Lewiston Police Officer Michael E. Whalen served thepermanent order on Defendant that day. Government Ex. 2. Thepermanent order restrained Defendant from harassing, stalking, orthreatening Lisa Bunnell, and it explicitly prohibited the use,attempted use or threatened use of physical force against LisaBunnell that could reasonably be expected to cause bodily injury.Government Ex. 2. The permanent order was valid until September 25, 2000.

On April 3, 2000, Officer Scot Bradeen of the Lewiston PoliceDepartment received information from a man serving with Defendant inthe National Guard who was concerned that Defendant might harm hisex-wife after hearing him threaten her during a training exercise inwhich Defendant was firing an M-60 machine gun. The man also toldBradeen that he had seen Defendant in possession of a Colt AR-15 —the civilian version of the M-16 assault rifle — and that Defendanttold the informant that he wanted to rent the apartment in which, inthe summer of 1999, a man had shot and killed his ex-wife orgirlfriend. Bradeen's investigation showed that Defendant was subjectto an active protective order issued by the Maine District Courtrelating to Lisa Bunnell. Bradeen obtained a copy of the outstandingprotective order which provided that possession of a firearm was aClass D crime. Government Ex. 2. Finally, Officer Bradeen'sinvestigation showed that Defendant was indeed living in theapartment where a woman had been shot less than a year earlier.Bradeen put the information in an affidavit and went to thecourthouse to obtain an arrest warrant for Defendant.

Police Sergeant Michael Bussiere arrived for work at the LewistonPolice stationat 3:00 p.m. At that time, he was told that Officer Bradeen wasattempting to get an arrest warrant for Defendant. Sergeant Bussieredid not think Bradeen would be successful because the informationwas stale and the incident at the National Guard firing range tookplace in another county. Nevertheless, two officers were stationedoutside Defendant's apartment. Shortly thereafter, Defendant wentto Elizabeth Ann's, a local convenience store. At approximately4:00 p.m., Bussiere, Officer Matthew Cashman, and Officer RayRoberts entered Elizabeth Ann's. Bussiere approached Defendantand asked him if he was Steven Bunnell. After Defendant confirmedthat he was, Bussiere asked "Do you mind if we talk for a minute?"Defendant responded "sure," indicating that he would not mind.Defendant and Bussiere went to the back of the store whereinventory was kept. Officer Cashman joined them in the storeroom andOfficer Roberts remained in a hallway between the storeroom and the store.

Once in the storeroom, Bussiere asked Defendant if he had an activeprotective order against him and Defendant responded that he did.Bussiere then told Defendant that he was not under arrest but thathe, Bussiere, was investigating a claim that Defendant possessed afirearm and that the protective order prohibited him from possessinga firearm. Defendant seemed surprised and stated that he did not knowthat he could not possess a firearm. When asked if he had a firearm,Defendant responded that he did not have it with him, but that backat his apartment, there was a Colt AR-15. Defendant also stated thathe did not want to have a firearm if he was not supposed to have oneand he suggested that they go to his apartment so that he could turnover the firearm.

Outside of Elizabeth Ann's, Cashman offered to drive Defendant tohis apartment. Before putting Defendant in his patrol car, Cashmanpatted Defendant down for weapons and found a Leatherman pocket toolkit. For safety reasons, Cashman kept the Leatherman and placedDefendant in the back seat of the car. Cashman and Defendant arrivedat the apartment first. It was approximately 4:15 p.m. After theyarrived at the apartment, Cashman let Defendant out of the car buttold Defendant to wait until the other officers arrived to go inside.While they waited, Cashman remained within arm's length of Defendant.A few minutes later, when the other officers arrived, Defendant ledthe officers into the apartment. Once in the apartment, Bussiereadvised Defendant that he did not have to turn over the gun.Defendant told the officers that he wanted to give them the gun.Bussiere then asked if they could search Defendant's apartment forfirearms, and Defendant responded that he wanted the officers tosearch thoroughly so that they knew that he did not have any weaponsand would not need to come back. Bussiere radioed one of the nearbydetectives to bring a consent form to the apartment. Defendant thenwent to get the gun from the back bedroom and was told by OfficerCashman to stay in the kitchen while he, Cashman, retrieved the gun.Tr. 62. Bussiere reaffirmed the direction for Defendant to go intothe kitchen and asked him to sit at the table to talk with him. Tr.at 33-34, 114-15.

While Defendant was being questioned in the kitchen, RoxannePalumbo, Defendant's roommate, was being kept in the living room.Palumbo was told to stay in the living room and that she could not gointo the kitchen. Tr. at 124, 130. Roberts stood in the living roomby the front door of the apartment while he questioned Palumbo.Defendant, while seated at the table and aware that Cashman washaving difficulty finding the weapon, gave more detailed instructionsregarding the location of the gun. Within a few minutes, OfficerCashman located the gun and brought it into the living room. Twoadditional officers, Chick and St. Pierre, arrived with aconsent-to-search form. Bussiere and Defendant were seated at thekitchen tablewhere, after Bussiere or Chick explained the form, Defendant signedit. Government's Ex. 3. Cashman located the gun at the same timethat Defendant signed the consent-to-search form. The search ofthe apartment turned up four loaded magazines for the Colt AR-15,taped together, and a copy of the protective order.

With Cashman's search was almost complete, Bussiere radioed Bradeento inquire about the status of the "paperwork." At the time hereceived the radio call, Bradeen had already obtained an arrestwarrant for Defendant and he was in the court clerk's office makingcopies. Bradeen told Bussiere that he had the "paperwork" and wouldbe right over to the apartment. At approximately 5:30 p.m., whenBradeen arrived, he questioned Defendant for ten to fifteen minutesbefore he placed him under arrest. Among the statements Defendantmade to Bradeen was that he lost his copy of the protective order.Defendant was never given a Miranda warning until after he wasformally arrested.

On April 26, 2000, the federal grand jury returned the Indictmentcharging Defendant with one count of possession of a firearm by aperson subject to a court order, specifically an order of protection,in violation of 18 U.S.C. § 922(g)(8).


Defendant argues that the Indictment should be dismissed becausethe statute is unconstitutional in that it (1) is an unconstitutionalexercise of Congress' powers under the Commerce Clause; (2) violateshis rights to due process and equal protection and his right tocounsel under the Fifth, Sixth, and Fourteenth Amendments to theUnited States Constitution; and (3) violates the Tenth Amendment tothe United States Constitution. The Court will deny Defendant'sMotion to Dismiss.

A. Commerce Clause

In the Violent Crime Act of 1994, Congress added to the list ofpersons prohibited from possessing a firearm to include individualssubject to domestic violence restraining orders. Defendant's argumentthat § 922(g)(8) is an unconstitutional exercise of Congress'commerce power is based upon the decisions in United States v.Morrison, ___ U.S. ___, 120 S.Ct. 1740 (2000) and United States v.Lopez, 514 U.S. 549 (1995). Both cases are distinguishable. In Lopez,the Supreme Court declared unconstitutional the Gun Free School ZonesAct, 18 U.S.C. § 922(q), reasoning that the statute "by its termsha[d] nothing to do with `commerce' or any sort of economicenterprise, however broadly one might define those terms[,]" andcontained "no jurisdictional element which would ensure, throughcase-by-case inquiry, that the firearm possession [within 1,000 feetof a school] affects interstate commerce." Lopez, 514 U.S. at 561.The Lopez decision does not support a finding of unconstitutionalityfor statutes which have express jurisdictional elements. Section922(g)(8) expressly limits its application to firearms "in oraffecting commerce," thus, it is constitutional under the Lopezanalysis. See United States v. Bostic, 168 F.3d 718, 722-24 (4th Cir.1999) (§ 922(g)(8) constitutional under the Commerce Clause and theFifth and Tenth Amendments), cert. denied, 527 U.S. 1029 (1999);United States v. Cunningham, 161 F.3d 1343, 1345-47 (11th Cir. 1998)(Court rejected a Commerce Clause challenge to § 922(g)(8), findingit constitutional on its face); United States v. Wilson,159 F.3d 280, 284-89 (7th Cir. 1998) (§ 922(g)(8) constitutional under theCommerce Clause and the Fifth and Tenth Amendments), cert. denied,527 U.S. 1024 (1999); United States v. Pierson, 139 F.3d 501 (5thCir. 1998) (§ 922(g)(8) constitutional under the Commerce Clause),cert denied, 525 U.S. 896 (1998).

Since Lopez, the Court of Appeals for the First Circuit has upheld,from Commerce Clause challenges, other statutes with jurisdictionalelements. See, e.g., United States v. Cardoza, 129 F.3d 6-13 (1stCir. 1997) (rejecting Commerce Clause challenge to the Youth HandgunSafety Act, 18 U.S.C. § 922(x) finding that supply and demand forhandguns will "substantially affect" interstate commerce); UnitedStates v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997) (ChildSupport Recovery Act constitutional under the Commerce Clause findingit regulates payment obligations in interstate commerce). Settingaside the jurisdictional element, § 922(g)(8) is valid because itdirectly regulates commerce in firearms. The Supreme Court explainedin Huddleston v. United States, 415 U.S. 814, 824 (1974), thatCongress enacted the federal gun laws because "it was concerned withthe widespread traffic in firearms and with their generalavailability to those whose possession thereof was contrary to thepublic interest." In enacting Title II of the Violence Against WomenAct, Congress detailed the effects on interstate commerce as follows:

Gender based crimes and the fear of gender based crimes, restricts movement, reduces employment opportunities, increases health expenditures, and reduces consumer spending, all of which affect interstate commerce and the national economy.

S.R. 103-138 103d Congress, Pub.L. 103-322. Moreover, by making it acrime for persons to "ship or transport" and "possess" or "receive"guns, § 922(g) attacks the problem of firearms trafficking by suchpersons from both the supply side — shipping and transporting — andthe demand side — possession and receipt.

Defendant claims that the Supreme Court's recent decision inMorrison extends Lopez and invalidates § 922(g)(8). In Morrison theCourt ruled that the federal civil remedy of the Violence AgainstWomen Act (VAWA), 42 U.S.C. § 13981(b), was unconstitutional.Morrison, 120 S.Ct. at 1754. The majority analyzed the statute'sviability under the Commerce Clause in light of Lopez. The Courtconcluded that because the statute did regulate the use of channelsof interstate commerce or protect or regulate instrumentalities ofinterstate commerce, the statute could be upheld only if it regulatedan activity that substantially affects interstate commerce. The Courtfound that the non-economic nature of the regulated activity and theabsence of any jurisdictional requirement in § 13981 wereconstitutional defects. The Morrison Court did not address thecriminal VAWA statutes — 18 U.S.C. § 2261, 2261A, and 2262 — and thedomestic violence related gun laws — 18 U.S.C. § 922(g)(8) and922(g)(9). The Court did, however, note with respect to the criminalVAWA statutes that all the courts of appeals have upheld the"criminal sanction as an appropriate exercise of Congress' CommerceClause authority, reasoning that `[t]he provision properly fallswithin the first of Lopez's categories as it regulates the use ofchannels of interstate commerce — i.e., the use of the interstatetransportation routes through which persons and goods move.'" Id. at1752 n. 5 (quoting United States v. Lankford, 196 F.3d 563, 571-572(5th Cir. 1999) (collecting cases)).

Finally, the Court noted that like the statute invalidated inLopez, § 13981 did not contain a jurisdictional element "establishingthat the federal cause of action in pursuance of Congress' power toregulate interstate commerce." Id. 1751-52. By contrast to thestautes in Lopez and Morrison, § 922(g)(8) does contain ajurisdictional element and specifically regulates the possession ofgoods, i.e., firearms, that have moved in interstate commerce.Because § 922(g)(8) has both a specific jurisdictional element aswell as a substantial effect on interstate commerce, it is aconstitutional exercise of Congress' power under the Commerce Clause.

B. Due Process, Equal Protection, and Right to Counsel

Defendant claims, without argument or citation to supporting legalauthority, that his rights to due process and equal protection andright to counsel under the Fifth, Sixth, and Fourteenth Amendmentswere violated because the Order for Protection was issued at ahearing which he did not attend and at which he was not representedby counsel.

The prohibitions of § 922(g)(8) apply only to orders that wereissued after a hearing of which a defendant received actual noticeand in which he had an opportunity to participate. Officer Morinserved the temporary order on Defendant in hand on August 25, 1998.Government Ex. 1. Thus, Defendant was given actual notice of thehearing on the permanent order. Defendant apparently chose not toavail himself of the process by failing to appear and, thus, hecannot now claim that he was denied due process of law. Defendantdoes not articulate in either his Motion or his Memorandum of Law howthe Equal Protection Clause or his right to counsel is implicated bythe issuance of the Order for Protection. Failing to articulate anyargument for a violation of these rights, the Court finds thatDefendant has waived those claims. Moreover, the Court finds noevident basis for a violation of equal protection or the right to counsel.

C. Tenth Amendment

Defendant mentions in his Motion to Dismiss, again without anyarticulated argument, that the Tenth Amendment's Residual PowersClause provides a separate basis for striking down § 922(g)(8). TheCourt of Appeals for the First Circuit has upheld § 922(g)(8) on aTenth Amendment challenge in United States v. Meade, 175 F.3d 215,224-25 (1st Cir. 1995). In addition, if Congress acts under one ofits enumerated powers, there can be no violation of the TenthAmendment. See New York v. United States, 505 U.S. 144, 156 (1992);Gregory v. Ashcroft, 501 U.S. 452, 460 (1991); Meade, 175 F.3d at 224.

What the Court can glean from Defendant's one-line Tenth Amendmentchallenge appears to be a contention that regulation of domesticrelations is outside of Congress' competence. The Court disagrees.Congress has power under the Commerce Clause to regulate conduct thatmay seem purely local in nature. See Bongiorno, 106 F.3d at 1033."Federal laws criminalizing conduct within traditional areas of statelaw, whether the states criminalize the same conduct or decline tocriminalize it, are of course commonplace under the dual-sovereignconcept and involve no infringement per se of states' sovereignty inthe administration of their criminal laws." United States v. Johnson,114 F.3d 476, 481 (4th Cir. 1997).


A. Prearrest Statements

Defendant moves to suppress the statements he gave to the police onApril 3, 2000, on the grounds that he was subject to custodialinterrogation without the benefit of a Miranda warning. TheGovernment concedes that no Miranda warnings were given and thatDefendant was interrogated, but objects to the assertion thatDefendant was in custody prior to his arrest. The safeguards providedfor by Miranda come into play only when a defendant is subjected toboth custody and interrogation. Rhode Island v. Innis, 446 U.S. 291,297 (1980); Beckwith v. United States, 425 U.S. 341, 347 (1976).Custodial interrogation refers to "questioning initiated by lawenforcement officers after a person has been taken into custody orotherwise deprived of his freedom of action in any significant way."Miranda v. Arizona, 384 U.S. 436, 444 (1966).The determinative issue in the custody inquiry is "whether therewas a formal arrest or restraint on freedom of movement of thedegree associated with a formal arrest." Stansbury v. California,511 U.S. 318, 322 (1994) (internal punctuation andquotation omitted). This fact-intensive inquiry, requiringconsideration of the totality of the circumstances, is "how areasonable man in the suspect's shoes would have understood hissituation." Stansbury, 511 U.S. at 324 (quoting Berkemer v. McCarty,468 U.S. 420, 442 (1984)). Relevant circumstances include"whether the suspect was questioned in familiar or at least neutralsurroundings, the number of law enforcement officers present at thescene, the degree of physical restraint placed upon the suspect,and the duration and character of the interrogation." United Statesv. Jones, 187 F.3d 210, 217-18 (1st Cir. 1999) (quoting UnitedStates v. Masse, 816 F.2d 805, 809 (1st Cir. 1987)).

The Court begins its custody analysis at the apartment finding thatprior to that point Defendant was not in custody. The first factor toconsider when making a determination of custody is whether thesurroundings are familiar or neutral and the degree of police controlover the environment in which the interrogation took place. Defendantwas in his own apartment at the time of the questioning, a familiarplace indeed. A defendant's own apartment being the site ofquestioning generally counsels against a finding of custody; however,this is not always the case. See United States v. Griffin,922 F.2d 1343, 1355 n. 15 (8th Cir. 1990) ("It is the accepted logic that aninterrogation in familiar surroundings such as one's own home softensthe hard aspects of police interrogation and moderates a suspect'ssense of being held in custody. Nonetheless, it is not difficult toenvision that a suspect's sense of captivity can actually beintensified by the intrusive and intimidating environment createdwhen agents of the law take control of a person's private residence.After all, a person cannot reasonably expect to be free anywhere ifnot within the refuge of his home.") (citation omitted). Despite thefamiliarity of the surroundings, here, Defendant was isolated fromcontact with anyone other than the officers, including his roommate —a possible source of moral support. The officers' direct restrictionon the movement of Defendant and Palumbo transformed what wouldotherwise have been a neutral environment into one of absolute policecontrol. The Court acknowledges that in this case, a carefullycontrolled environment was essential for the safety of the officersand occupants of the apartment during the search. Nevertheless, suchcontrol, albeit for legitimate purpose, may result in a finding thata suspect is in custody.

In this case, Cashman's command that Defendant stay in the kitchenwas intended to, and did, dictate the course of Defendant's conducteven without physical contact. After the gun was secured, Bussiere'sfailure to tell Defendant that he was free to leave or that he didnot need to answer questions contributed to a police-dominatedenvironment. Additional support for the Court's finding of anatmosphere of custodial control is the number of officers in thesmall apartment. Although initially there were only three officers inthe apartment (Bussiere with Defendant in the kitchen, Roberts withPalumbo in the living room, and Cashman searching), within a fewminutes after entering the apartment, the number of officersincreased to five.1 Ultimately, after approximately one hour ofquestioning Defendant in the kitchen, the sixth officer, Bradeen,arrived with the arrest warrant and continued to question Defendantforten to fifteen minutes before arresting him. Tr. at 51. Five, andthen six, police officers moving about this small apartment lendssupport to the Court's conclusion that a reasonable person would havefelt that his freedom to move was curtailed. The overallcircumstances did not allow Defendant to leave the kitchen orterminate the questioning.

The next factor the Court will consider is the character andduration of the interrogation. Prolonged, accusatory questioning islikely to create a coercive environment from which an individualwould not feel free to leave. There is no evidence that the officers'questioning was threatening or coercive. To the contrary, Defendant'swilling, almost eager, cooperation nullified the need for theofficers to be abrasive or confrontational. The Court finds, however,the cordial nature of the questioning to be deceptive. The outwardlycooperative nature of the exchange does not displace the true inquiryregarding the character of the encounter. Although Defendant waspreviously told that he was not under arrest, he was never told thathe was free to leave or that he could refuse to answer questions. Theofficers had told him that they were investigating a violation of aprotective order resulting from his ownership of a firearm, Tr. at44, and questioned Defendant about his acquisition, length ofownership, and use of the gun. Tr. at 89-90.

In addition, the length of time Defendant was questioned — over onehour — gives the Court some concern. In United States v. Pratt,645 F.2d 89 (1st Cir. 1981), the First Circuit cited a string of casesregarding the length of time that may lead to a conclusion ofcustody. Id. at 91. Of the cases cited, the only detention held to becustodial was for over an hour. See United States v. Garcia,496 F.2d 670 (5th Cir. 1974). In the present case, Defendant wasinterrogated for over one hour before being placed under formal arrest.The length of the questioning here far exceeded the few minutes necessaryto keep Defendant occupied while the gun was secured. Particularly,after Bussiere radioed Bradeen and became aware that Bradeen was onhis way to the apartment with an arrest warrant, Defendant was toldthat the officers were waiting for someone else to arrive, withoutindicating that Defendant did not have to wait or was free to leave.Tr. at 90. Finally, after Bradeen arrived he continued to questionDefendant for ten to fifteen minutes before arresting him. Tr. at 51.

Finally, the Court considers the officers' use of physicalrestraint used on the Defendant. There was no testimony indicatingthat the officers ever came in direct bodily contact with Defendantor that he was physically restrained during the questioning in thekitchen to any degree beyond that of the controlled environmentitself. Consideration of this element counsels in favor of findingthat Defendant was not in custody at his apartment.

The Court finds that the proper characterization of Defendant'sdetention for purposes of Miranda is an extremely close question.However, the Court concludes that a reasonable person would haveunderstood, from the restraint created by the police-controlledenvironment and the length and nature of the interrogation, that hewas in custody. Thus, the statements Defendant made, after he wastold by Cashman to go into the kitchen, are a result of the custodialinterrogation without the benefit of a Miranda warning and must besuppressed. At the hearing, Bradeen testified to a number of specificstatements Defendant made in response to his questions, includingDefendant's statement that he had lost his copy of the protectiveorder. Bradeen having arrived after Defendant was in custody, anystatements made in Bradeen's presence must be suppressed. Defendanttestified that he was questioned in the kitchen regarding hisacquisition, length of ownership, and use of the gun. Tr. at 90.Other than these statements, the Government presented no testimonyregarding statements Defendantmade while in the kitchen. If, however, Defendant made any statementsto Bussiere, Cashman, Roberts, Chick, or St. Pierre while in thekitchen those statements must also be suppressed.

B. Tangible Evidence

Defendant also argues that the items taken from his apartment — thegun, the magazines, and the protective order — were illegally seizedbecause the officers did not have a search warrant and his consentwas not valid, having been obtained while he was in custody withoutthe benefit of a Miranda warning. The Government disagrees,responding that the evidence seized is admissible because Defendantvoluntarily turned over the gun and consented to the search.

The police may conduct a warrantless search when a suspectvoluntarily consents to it. See Schneckloth v. Bustamonte,412 U.S. 218, 219 (1973); United States v. Esquilin, 208 F.3d 315, 318 (1stCir. 2000). Voluntariness is a question of fact to be determined fromthe totality of the circumstances. Schneckloth, 412 U.S. at 248-49.The Government bears the burden of proving that the consent was notthe product of coercion. Id. at 221-22. Relevant factors include thedefendant's knowledge of his constitutional right to refuse toconsent, the defendant's age, vulnerability, intelligence, education,the degree to which he cooperated with the police, and the use ofpunishment or other coercive behavior. Id. at 226; United States v.Barnett, 989 F.2d 546, 554-55 (1st Cir. 1993). In this case,Defendant is a thirty-five-year-old instructor in the National Guard.He was eager to cooperate with the officers and consented to thesearch even after being informed by Bussiere that he did not have toturn over the gun. As found above, the officers never applied anyphysical force to Defendant and his cooperation obviated the need forany form of coercion. The Court finds, therefore, that his consent tosearch the apartment was voluntary and the tangible evidence obtainedas a result thereof is admissible.2

Accordingly, the Court ORDERS that Defendant's Motion to Dismissbe, and it is hereby, DENIED. The Court further ORDERS thatDefendant's Motion to Suppress be, and it is hereby, GRANTED withrespect to the prearrest statements Defendant made once he was in thekitchen and DENIED with respect to the tangible evidence seized atthe apartment.

1. The testimony revealed that even before the gun was located,Detectives Chick and St. Pierre arrived at the apartment. Chickbrought the consent form into the kitchen, read it to Defendant, andthereafter remained in the kitchen. Tr. at 50.

2. The Court's finding that Defendant voluntarily consented to thesearch prior to being subject to custodial interrogation obviates theneed to address his argument that the consent, having been obtainedwhile he was in custody without the benefit of a Miranda warning, wasnot valid.

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