United States District Court, D. Vermont
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS AND DEFENDANT'S SUPPLEMENTAL MOTION TO SUPPRESS EVIDENCE AND STATEMENTS (Docs. 78 & 80)
CHRISTINA REISS, Chief District Judge.
This matter came before the court on January 8 and February 27, 2014 for an evidentiary hearing on the motions to suppress evidence and statements filed by Defendant Charles Hercules (Does. 78 & 80). Defendant alleges that his constitutional rights were violated when he was subjected to custodial interrogation after he had invoked his right to remain silent and requested an attorney. He seeks suppression of all of the evidence derived from these alleged violations, including evidence gleaned from the search of his cell phone.
The government opposes Defendant's motions, contending that his invocation of his right to counsel was ambiguous, as was his invocation of the right to remain silent. The government further argues that the search of Defendant's cell phone was consensual and that Defendant voluntarily provided a DEA agent with the password for his phone to enable the search.
The parties completed their post-hearing briefing on March 13, 2014, at which point the court took the matters under advisement.
Defendant is charged in a one count superseding indictment with conspiracy to distribute 100 grams or more of heroin in the District of Vermont and elsewhere.
The government is represented by Assistant United States Attorney Craig S. Nolan. Defendant is represented by David J. Williams, Esq.
I. Findings of Fact.
In August of 2012, the DEA was investigating the source of heroin contained in bags branded with the word "Flow" which was being distributed in the Rutland, Vermont area. DEA Agent Thomas Doud believed Flow heroin was responsible for the August 29, 2012 overdose death of a young man in Rutland.
On July 29, 2013, the DEA, the FBI, and local law enforcement coordinated a joint effort to secure Defendant's cooperation in their investigation of the source of Flow heroin. Their plan was to arrest Defendant in New York on an outstanding warrant arising from the July 24, 2012 initial indictment in this case and determine whether he was willing to provide law enforcement with information regarding the source of Flow heroin, which the agents believed was located in the Bronx, New York. At the time, Defendant was twenty-one years old and had been arrested when he was twenty and jailed for four days. During this prior incident, he was neither questioned nor provided with Miranda warnings. Defendant is a high school graduate with no difficulty understanding English and with some employment history. During the court's hearing, Defendant's testimony was fully intelligible with an unremarkable tone of voice, vocabulary, and diction.
In the early afternoon of July 29, 2013, DEA Agent Thomas Doud, DEA Agent William Kivlehan, and a local police officer went to Defendant's home in Woodbury, New York and spoke with Defendant's mother. Using a ruse that evidence regarding prescriptions in Defendant's name was involved in one of their investigations, the agents told Defendant's mother they would like to ask Defendant about his prescriptions. Defendant's mother told the agents that Defendant was at a training/certification class for security guards and that she believed the school had the name "Finch" in it. She also provided a general description of the school's location. At the Woodbury police department, the agents researched this information and determined the school was likely the Damon Finch Power Sessions school located on Route 94 in nearby New Windsor, New York. They proceeded to that location and arrived at the school shortly after 4:00 p.m.
At the Finch school, DEA Agent Thomas Doud was joined by DEA Task Force Agent Daniel Merchand, Vermont State Police ("VSP") Detective Casey Daniell, DEA Special Agent Tim Hoffman, and FBI Agent Christopher Destito (all of whom were based in Vermont). DEA Agent William Kivlehan (who was based in New York) had also travelled to the school to assist in Defendant's arrest. The agents were dressed in plain clothes and arrived in several vehicles. The school was located in an upstairs corner section of a multi-unit building that housed various businesses. The agents assumed positions around the building in order to monitor the exits.
Agent Destito went upstairs in the building to look into Defendant's classroom. Damon Finch, who was administering a test to Defendant's class, asked if he needed some help. Agent Destito told him he was waiting to pick up his friend after the class. When Mr. Finch asked who the friend was, Agent Destito did not answer him and left the classroom area. Mr. Finch told the class that something seemed "fishy" (Tr. 2/27/14 at 72:2) because someone just poked their head in the classroom and asked when it would end because he was there to pick someone up. Thereafter, Mr. Finch came out of the building, into the parking lot, and looked around. He encountered Agent Kivlehan, who asked him for identification. In response, Mr. Finch asked Agent Kivlehan for his identification. Agent Kivlehan told Mr. Finch that he was a federal agent involved in an investigation, showed him his credentials, and asked him if there was student named Charles Hercules in his class. Mr. Finch answered in the affirmative and offered to go up and get Defendant who was taking a test. Agent Kivlehan advised Mr. Finch that they did not want to disrupt his class and that they would wait for it to end. Mr. Finch showed Agent Kivlehan his license and expressed concern that the agents were state auditors seeking to audit his business.
Mr. Finch returned to the classroom and told his students that if they ever got pulled over or questioned by a police officer, they should exercise their right to a lawyer. At the end of the class, Mr. Finch provided Defendant with the business card for a criminal defense law firm Cobb & Cobb located in Newburgh, New York. As the students left the building by walking down a staircase to a rear exit that led to the complex's parking lot, Agent Kivlehan and Agent Doud waited on either side of this exit for Defendant, while other agents monitored the building's front entrance. After Defendant descended the staircase and exited the building, Agent Kivlehan and Agent Doud, one on either side of Defendant, told Defendant he was under arrest and grabbed his arms. At this point, the accounts of what happened in the course of Defendant's arrest sharply diverge. Before examining those conflicts, it bears noting that certain facts are undisputed. It is undisputed that shortly after he encountered the agents outside the Finch school, Defendant told the agents, "I don't have to talk to you." (Tr. 2/27/14 at 17:14.) It is also undisputed that, after his arrest, Defendant was transported in a vehicle to a nearby shopping area where he was questioned at some length, that Defendant was given Miranda warnings in the course of this questioning, and that, at some point, Defendant provided Agent Doud with the business card for the Cobb & Cobb criminal defense firm which he obtained from Mr. Finch.
With regard to the circumstances surrounding his arrest, Defendant testified that, after the class, he descended the staircase and, in the course of doing so, he began texting his fiancee that he thought he was about to be arrested. He based this suspicion upon his teacher's shaking his hand and placing the business card for a criminal defense firm in his hand as he did so and because through the window above the staircase Defendant saw "a few middle-aged gentlemen standing outside." (Tr. 2/27/14 at 77:7-8.) As Defendant exited the building, two agents grabbed him by his arms and escorted him to a vehicle waiting in the parking lot. Defendant testified that one of the agents took Defendant's cell phone at this point. Defendant told the agents, "I don't have to talk to you, " and asked if the agents had a warrant for him. Id. at 17:14; 95:12. He further claims that while being escorted by the agents, he took the Cobb & Cobb business card out of his front pocket, handed it to Agent Doud, and asked: "[M]ay I please speak to this lawyer?" Id. at 80:24-25; 81:14. He claims Agent Doud took the card from him, read it, and "with a grin he placed it into his pocket." Id. at 81:16-17. He further testified that he again said, "can I please speak to the lawyer, " as he was being placed into the vehicle. Id. at 82:13-14.
Agent Kivlehan credibly testified that he and Agent Doud waited until Defendant left the building and then immediately grabbed his arms and told him he was under arrest. In response, Defendant said: "[W]hat am I under arrest, what's this, what's this all about[?]" (Tr. 1/8/14 at 15:15-16.) Defendant appeared "confused" and "started kind of mumbling a bunch of stuff and he stiffened up and he kind off, ' he wasn't um, fighting us in any way, he was, he was non-compliant, but he wasn't... trying to... be belligerent or anything like that. He was more I think nervous of what was going on." Id. at 15:16-21; 17:17. According to Agent Kivlehan, because Defendant had "recoiled or stiffened up, " the agents "just grabbed both his arms pretty tight, held them. We were trying to get them around his back." Id. at 16:11-14. The agents then walked Defendant to the agents' vehicle and handcuffed him. At that point, Agent Kivlehan "was done with whatever [he] was doing and [he] went back to [his] car." Id. at 16:16-18. Agent Kivlehan did not actually participate in handcuffing Defendant but described the interaction which he watched as "relatively smooth the handcuff process and everything." Id. at 22:3-4.
According to Agent Kivlehan, during the escort to the vehicle, Defendant continued "mumbling a bunch of stuff' and some "incoherent things too." Id. at 15:16-17; 17:4-5, 9. Agent Kivlehan "wasn't really concerned too much about what the defendant had to say" because it "wasn't [his] case" and he did not "even know anything about [the] case." Id. at 17:11-14. He did not hear Defendant make a statement about a lawyer. He estimated that the escort of Defendant to the vehicle took approximately ten to fifteen seconds and described this as the entirety of his interaction with Defendant. Id. at 20:10-12 ("Literally my interactions with him was 10 to 15 seconds. That was it. From [the] door to [the] car and I was gone."). During that time period, Agent Kivlehan did not hear Defendant invoke any constitutional rights or see Defendant present a business card for a lawyer.
Agent Doud testified that he and Agent Kivlehan approached Defendant as he exited the building and told him they were police officers who wanted to speak to him. According to Agent Doud, Defendant "immediately became confrontational and pulled away and became what [he] would describe as being abrasive and reluctant to have [a] conversation with us." (Tr. 2/27/14 at 16:12-14; see also id. at 20:4-5 for Agent Doud's description of Defendant as engaged in "boisterous[, ] antagonistic, confrontational behavior."). Defendant told the agents they "had no right to do this" and that they did not have a warrant. Id. at 16:21-23. Agent Doud responded that they had a warrant for Defendant's arrest, and then he and Agent Kivlehan grabbed Defendant's arms. According to Agent Doud, Defendant "continued to resist [them] and pull and wriggle and squirm" as they escorted Defendant to the agents' vehicle. Id. at 17:2-5.
Agent Doud further testified that Defendant said: "[Y]ou can't do this, don't touch me, I don't have to talk to you, this is bullshit." Id. at 17:13-15. Agent Doud characterized Defendant's speech that day as difficult to understand, but he conceded that Defendant said the word "lawyer." Id. at 17:16-20; 18:3-6 ("I, I know that he said the word lawyer. And I do not know the rest of the phrase or sentence that surrounded that use of the word lawyer. But I do recall hearing him say the word lawyer."). As Defendant was escorted to the waiting vehicle, he "continued to stiffen up and resist against us, " id. at 18:16-17, and so Agent Doud decided to handcuff Defendant behind his back. During this process, Defendant "stiffened up and became upright as if he was going to pull away." Id. at 19:4-6. Agent Doud told Defendant to stop resisting and to calm down and relax. He finished handcuffing Defendant and did a cursory search of his person. Agent Doud testified that he found and took Defendant's cell phone during this search. In his report of the incident, Agent Doud describes Defendant's arrest as follows:
S/A Doud said that the investigators wished to speak with [Defendant]. HERCULES immediately responded in an agitated, non-compliant, boisterous, and defiant manner. S/A Doud then announced to HERCULES that the agents had an arrest warrant for him, and told him to place his hands behind his back. HERCULES refused to do this, excitedly uttered several remarks, and tried to pull away from the agents' grasp. As he attempted to quickly move away from the agents, the agents secured HERCULES by his arms (S/A Doud grasping the right arm and S/A Kivlehan grasping the left arm) and escorted him to the vehicle that Det. Trooper Casey Daniell, S/A Christopher Destito, and S/A Doud were utilizing on that date. During this escort, HERCULES continued to protest what was happening, and continued to wriggle and struggle with his arms. He was taken alongside of this vehicle and S/A Doud began to handcuff him. HERCULES immediately resisted the handcuffing attempt by stiffening his body upward and pulling away from S/A Doud's grasp. S/A Doud told HERCULES to relax and stop resisting, and then finished handcuffing him.
Defendant's Ex. A at 2.
FBI Agent Destito witnessed Defendant being escorted to the vehicle, but he could not hear anything either Defendant or the agents were saying. At the vehicle, he heard Agent Doud tell Defendant to "stay still" as he patted him down and that "we'd be going, we'd be getting in the vehicle and going down the road, [and] we could talk further at that time." (Tr. 1/8/14 ...