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United States v. Westcom

United States District Court, D. Vermont

February 25, 2014



CHRISTINA REISS, Chief District Judge.

This matter came before the court on January 2 and 22, 2014 for an evidentiary hearing on Defendant Kirt Westcom's Motion to Suppress Evidence (Doc. 23) obtained from a May 29, 2013 warrantless search of his residence. Defendant contends that the government cannot establish his consent to the search was voluntary. The government opposes the motion, arguing that Defendant's consent was voluntary and that law enforcement's advice to Defendant that he had only two options-consent or a search warrant-was neither coercive or deceitful.

Defendant is charged in a two count Superseding Indictment with conspiracy to distribute marijuana involving 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana and possession of a firearm while being an unlawful user of a controlled substance.

The government is represented by Assistant United States Attorney Heather E. Ross and Assistant United States Attorney Kevin J. Doyle. Defendant is represented by Katina F. Ready, Esq.

I. Findings of Fact.

A. The Initial Search of Defendant's Residence.

Defendant and his wife, Billie Westcom, reside at 262 Egypt Road in East Fairfield, Vermont, where they operate a farm. Defendant's father, Harold Westcom, lives at 264 Egypt Road, accessed by a common driveway with Defendant's residence. Harold Westcom shares ownership with his son of a large barn that is approximately eighteen yards from Harold Westcom's residence and approximately 120 yards from Defendant's residence. The barn includes a milkhouse that is on Harold Westcom's property. Photographs of the barn introduced into evidence reveal that it clearly appears to be associated with Harold Westcom's residence.

On May 29, 2013 between 7:00 and 7:30 p.m., six law enforcement agents in two unmarked vehicles arrived at Defendant's single family residence. Three agents approached the residence while the remaining law enforcement officers stood outside their vehicles in Defendant's driveway approximately 75 to 100 feet from the front door of Defendant's residence. These remaining officers were visible from the front door of the residence.

Drug Enforcement Administration ("DEA") Task Force Agent Robert Sylvia, a member of the Chittenden County Sheriff's Office, took the lead on the initial approach to Defendant's residence and was accompanied by DEA Task Force Agent Daniel Merchand and DEA Task Force Agent Michael Grindle. The men were dressed in plain clothes and carried holstered firearms. Agent Sylvia knocked on the front door, and Billie Westcom answered. Agent Sylvia asked to speak to Defendant. Billie Westcom retreated from the front door, called out to her husband, and Defendant subsequently appeared at the front door and stepped out onto a large, covered porch where the agents were waiting.

Thereafter, Agent Sylvia stood within arm's length of Defendant. He was aware from his investigation that Defendant drank alcohol and possibly used drugs. He testified that he had extensive experience with people under the influence of alcohol, but claimed he could not smell intoxicants. Agent Merchand, who was standing behind Agent Sylvia, however, could smell the odor of intoxicants emanating from Defendant from several feet away. Both agents believed that Defendant may have been under the influence of either alcohol or narcotics or both, and Agent Sylvia noticed that Defendant's eyes were "pretty glossy." (Tr. 1/2/14 at 14:4-7.)

Billie Westcom, who herself had three or four beers that evening, remained in the doorway and watched the encounter. It was her impression that Defendant was intoxicated because she had watched him drink alcohol that evening and stumble as he walked to the front door. Defendant also testified that he had been drinking.

Agent Sylvia identified the DEA agents to Defendant and showed Defendant his DEA credentials. He expressed concern regarding whether Defendant understood him and asked Defendant if he was drunk or high. Defendant responded by laughing and saying he was "fine." Id. at 15:3-12. Agent Sylvia suggested to Defendant that "later on someone might say that they were intoxicated.. and they didn't want to talk to the police." Id. at 15:5-8. He, however, did not pursue the issue further and concluded that Defendant could understand him sufficiently to proceed.

The DEA agents explained to Defendant the nature of the investigation which led them to Defendant's residence that evening. Agent Sylvia told Defendant they had gleaned information in the course of their activities that day that indicated that Defendant was engaged in marijuana trafficking, that he had become a "focal point" of their investigation, (Tr. 1/22/14 at 5:6), and that marijuana would be found in his residence. In response, Defendant laughed and said, "no, there's nothing in there and that there's just some stuff for my head." (Tr. 1/2/14 at 17:15-19.) Agent Sylvia understood this to mean drugs for personal use.[1]

Agent Sylvia informed Defendant that the DEA had executed a number of search warrants that day in Franklin County as part of their marijuana trafficking investigation, including at Jeffrey Donna's store, and asked Defendant if he had heard about it. Billie Westcom responded that they had heard about it. When the agents questioned her regarding her source of information, she declined to answer them.

Agent Sylvia advised Defendant that he had only two options. Defendant could grant consent for the agents to search his residence or Agent Sylvia would seize the residence, obtain a warrant, and search the residence that evening. Defendant credibly testified that it was his "understanding it was either let them in or they were going to haul [Defendant and Billie Westcom] away and get a warrant and search it anyways" and that it was his "understanding" based on what Agent Sylvia "told" him that the agents "were going to [search] that day no matter what." (Tr. 1/22/14 at 36:5-25.) Agent Sylvia did not advise Defendant of his right to refuse consent or indicate that a search warrant may or may not be granted, although Agent Sylvia has been denied search warrants in the past.

The conversation on the front porch lasted no more than fifteen minutes. The agents did not raise their voices, although Agent Sylvia confronted Defendant with his belief that Defendant was "deeply involved" in marijuana trafficking and with his certainty that incriminating evidence would be found in Defendant's home. (Tr. 1/2/14 at 17:10-21.) Other than their presence, the agents made no display or threats of physical force. Contrary to Defendant's testimony, the court does not find that he asked for a lawyer while on the front porch.

In response to Agent Sylvia's presentation of the option to either consent or have his residence seized until a warrant issued, Defendant told Agent Sylvia to "do what you have to, " id. at 19:2, and waived the agents inside. At that point, Agent Merchand indicated that any agents who remained in the driveway should follow him into the residence and they did so.

Agent Sylvia did not solicit Billie Westcom's consent to the search, although she remained present throughout the encounter. Upon entry into the residence, Agent Sylvia did not ask Defendant to sign a written consent form because he "[d]idn't need to." Id. at 37:22-38:1. Agent Sylvia testified that although he could have drafted a written consent form, he "very often" performs warrantless searches of residences without written consent and that it is "[f]requently" his "practice" to search a residence based solely on verbal consent for "logistical, tactical decisions, short timeframe, the targets of the investigation, the seriousness of what we're looking for. A variety of reasons." Id. at 59:7-19.[2]

Inside the residence, Agent Merchand noticed deer heads mounted on the living room wall and asked Defendant if there were any weapons in the residence. Defendant admitted that there was a loaded shotgun in his bedroom. Agent Merchand went into Defendant's bedroom with several other agents and retrieved the weapon. While in the bedroom, Agent Merchand observed marijuana paraphernalia, some marijuana shake, and "a little small bud." (Tr. 1/22/14 at 9:20-21.) He also observed an open safe in a closet with an odor of marijuana.

In the foyer of the residence, Agent Sylvia again questioned Defendant about the amount of marijuana that would be found in the home, and Defendant continued to "say that there's nothing in here [and] he didn't know why we would be there and just said that the only other thing he had was upstairs [and] was a few marijuana plants." (Tr. 1/2/14 at 21:1-5.) Either during this conversation or shortly thereafter, additional agents entered the residence after being summoned by Agent Sylvia from nearby agencies. Eventually, there were fourteen agents involved in the search of Defendant's home.

Defendant motioned to the agents as he walked upstairs, and Agents Sylvia and Grindle followed him. There, they found a closed door with a combination padlock. Defendant manipulated the combination and opened the door, which the agents entered. Inside the room, Agent Sylvia observed that "there was kind of the remnants of a small marijuana grow [operation]. There was some... wood debris, looked like some things had been damaged or broken, some kind of little construction project I guess. There was a small or medium size closet off to my right that, again, had a couple marijuana plants and the remnants of what was maybe a little bit bigger marijuana grow." Id. at 22:21-23:3. Agent Grindle confronted Defendant with "the true investigation, which was not about a couple of marijuana plants in his upstairs bedroom, " id. at 23:21-22, and provided details of the "bigger investigation" in which they suspected Defendant was involved. Id. at 24:1-2. In response, Defendant appeared fearful. According to Agent Sylvia, Defendant "said he [thought] he should talk to a lawyer, " id. at 24:12-13, twice "asked for a lawyer, " id. at 38:19-21; 39:4-5, and said he "would need one." Id. at 39:16-17. Agent Sylvia, however, also testified that Defendant "never asked to speak with an attorney." Id. at 39:21. The court finds that Defendant did in fact express his desire to speak to a lawyer at least twice. Agent Sylvia did not provide Defendant with an opportunity to consult with a lawyer because "[t]here was no opportunity for him to speak with an attorney. We seized the house. He could have left. He didn't." Id. at 39:10-12. Thereafter, however, Agent Sylvia and Agent Grindle stopped questioning Defendant, although they continued their search.

Defendant returned to the first floor of the house, and he and his wife were escorted out onto the front porch where an agent remained with them until Billie Westcom complained of the cold and the couple was allowed to re-enter their residence. During this time period, Defendant and his wife were advised that they could not answer their telephone which was ringing.

At some point, Defendant began to talk to Agent Merchand. According to Agent Merchand, Defendant "was upset that [the agents] were there at the house and he was basically telling [Agent Merchand that he was] not a large scale marijuana dealer, (Tr. 1/22/14 at 26:12-14), that the marijuana he had was for his "head, " and that he and his wife "basically smoked marijuana on a daily basis." Id. at 11:20-24. Defendant asked Agent Merchand "about the legality of the search and whether or not [the agents] needed a warrant." Id. at 12:6-7. Agent Merchand told Defendant that he had allowed them to search and that if he wanted them to stop searching they would. He explained that the agents would go to a judge and apply for a warrant and that whether they obtained one would be based upon the information they gave to a judge in an affidavit. Defendant asked Agent Merchand whether he should talk to a lawyer. Agent Merchand told Defendant that he could not give him legal advice but that he could call a lawyer if he wanted to. At that point, Agent Merchand "became weary of what [Defendant] was saying, " id. at 23:8, and summoned Agent Sylvia and Agent Grindle downstairs to talk to Defendant.

When Agents Sylvia and Grindle arrived downstairs, Agent Merchand explained to them that Defendant was questioning the legality of the search and asking for a lawyer. Agent Sylvia testified that he "in a nutshell, re-explained... the conversation I had with him on the porch [that] I have only two options, a search warrant or consent, and that he had already given consent which is why we were searching his house." (Tr. 1/2/14 at 27:1-4.) At that point, Agent Sylvia "started to get uncomfortable with the fact that [Defendant] was questioning [the search] and [he] couldn't quite answer him fully." Id. at 27:6-8. Agent Sylvia testified that it was his decision to obtain a search warrant. However, Defendant credibly testified that he eventually demanded a warrant and only then did the initial search of his residence cease. Agent Merchand ...

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