United States District Court, D. Vermont
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BASED ON AN UNLAWFUL SEARCH AND MOTION TO SUPPRESS RECENTLY PRODUCED EVIDENCE THAT IS THE FRUIT OF AN UNLAWFUL CELLPHONE SEARCH (Docs. 30, 32)
CHRISTINA REISS, Chief District Judge.
This matter comes before the court on Defendant Von Simmonds's Motion to Suppress Evidence Based on an Unlawful Search and Motion to Suppress Recently Produced Evidence that is the Fruit of an Unlawful Cellphone Search. (Does. 30, 32.) In his motions, Defendant argues that incriminating evidence against him was derived from a nonconsensual search of Kenneth Clark's apartment where he was an overnight guest In the alternative, if the search of Mr. Clark's apartment is deemed lawful, Defendant argues that the search of his cell phone was not incident to his arrest and that the alleged unlawful cell phone search tainted a subsequent search warrant application.
The government opposes Defendant's motions to suppress, asserting that the search of the apartment was preceded by verbal and written consent voluntarily given by Mr. Clark - the apartment's tenant. The government further contends that Defendant's motion to suppress evidence from his cell phone is moot because the government does not intend to use evidence derived from the initial cell phone search at trial. Defendant counters the issue is not moot because, although the government did not use the information derived from a search of his cell phone to obtain a search warrant, the government would not have obtained the search warrant absent the allegedly illegal search. He argues that the government cannot "cure" an illegal search in this manner.
The government is represented by Assistant U.S. Attorney Craig S. Nolan. Defendant is represented by Assistant Federal Public Defender Steven L. Barth.
Defendant is charged in a one count Indictment with knowingly and willfully conspiring with others to distribute a mixture and substance containing a detectable amount of cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C).
I. Findings of Fact.
The court has previously addressed many of the operative facts in its Opinion and Order Denying Defendant's Motion to Suppress Evidence dated November 25, 2013. (Doc. 26.) Post-hearing, the court granted in part Defendant's motion to re-open the suppression hearing and permitted both parties to submit supplemental declarations regarding the use of the hallway which led to Mr. Clark's apartment. The parties completed these filings on April 25, 2014. Defendant submitted the declarations of Defendant, Daniel Gagne (the apartment's owner and landlord), and Kevin Ridgley (Defense counsel's investigator). The government submitted a declaration from Mr. Clark.
Based upon the admissible evidence, the court makes the following findings of fact. On the evening of March 7, 2013, at approximately 12:30 p.m., Rutland Police Department Detective David LaChance, FBI Agent Christopher Destito, and several other law enforcement agents approached the apartment of Kenneth Clark with the intent of performing a "knock and talk." The agents decided to approach Mr. Clark based upon information from a cooperating source that someone named "Ken" was distributing a large quantity of heroin out of his apartment located at 29 Church Street in Rutland, Vermont. Mr. Clark was a non-paying tenant in the apartment after a former girlfriend left both it and him. He resided there with his current girlfriend and his young son.
In order to access Mr. Clark's apartment, the officers opened an unlocked street level door and travelled through a hallway which led up a staircase to the front door of Mr. Clark's apartment. There is no doorbell or knocker for the outside street level door and it can be locked by the tenant. The parties dispute the frequency of how often the outside street level door was locked. Mr. Clark avers that he locked it only approximately 30% of the time and that his landlord also had a key. He contends that deliveries were frequently made to his apartment by people who used the hallway to access the front door of his apartment and that friends and members of the public would enter through the outside door and proceed upstairs to the front door of his apartment to visit him. He avers that Detective LaChance used the hallway to access the front door of Mr. Clark's apartment on a prior occasion. Mr. Clark states that he did not try to exclude others from the hallway, and that he did not consider the outside door to be his front door because, among other things, the hallway also led to the apartment building's garage and basement which his landlord used.
In contrast, Mr. Clark's landlord, Daniel Gagne, avers that there is only one key to the outside door and that he had given it to the prior tenant with whom Mr. Clark had lived. He avers that the tenant in Mr. Clark's apartment is required to pay for the electricity to the hallway and the stairwell lights. In Mr. Gagne's experience, Mr. Clark kept the outside door locked and so he would call Mr. Clark to unlock the outside door when he needed to access the basement of the building from the hallway. Although Mr. Gagne allowed the former tenant to store some of her possessions in a storage room located off the hallway, he told Mr. Clark to remove a fish tank and other belongings in the hallway because they constituted a fire hazard. Mr. Gagne was uncertain regarding the proper classification of the hallway, but he did not consider it a "common area." (Doc. 59-1 at 1.) He notes that at the top of the stairs in the hallway "there is another door, leading to the living area of Apartment 3 [which is the apartment in question]." Id.
Detective LaChance knocked on the door to the apartment and Mr. Clark responded, "come in." (Tr. 1/21/14 at 16:18.) After approximately ten to fifteen seconds, Detective LaChance knocked again and shouted "Rutland City Police." Id. at 16:19-20. Although Detective LaChance asked Mr. Clark to open the door, Mr. Clark does not recall him making this request and credibly testified that he went to the door and opened it "voluntarily." Id. at 38:16-19.
Detective LaChance introduced himself to Mr. Clark with whom he had prior contact. At the time, Detective LaChance was dressed in a police uniform. He also introduced Agent Destito who was dressed in plain clothes. Mr. Clark recalls that he stepped out into the hallway, closing the apartment door behind him. The agents asked him if his name was "Kenneth Clark" and Mr. Clark answered in the affirmative. The agents told him that they suspected drug activity inside the.apartment. Thereafter, Mr. Clark's son, who was just under two years old, opened the door behind him. Mr. Clark stepped back inside the threshold of the apartment and moved his son back inside the apartment. Neither Detective LaChance nor Agent Destito recalls Mr. Clark stepping outside the apartment.
The agents asked if there were any drugs in the home. Mr. Clark replied that he had a rock of crack in the apartment on a table in his living room and told the agents they could seize it. Mr. Clark initially testified that he told the agents they could not come into his apartment but "[b]y telling them I had rock in my house I believe [that] was their consent." Id. at 40:23-24. Both Agent Destito and Detective LaChance credibly testified that they asked Mr. Clark if they could enter the apartment and he agreed that they could do so. Mr. Clark later conceded in his testimony that he consented to their entry.
According to Mr. Clark, the agents remained in the hallway and he remembers "them asking for consent. And they mentioned the card." Id. at 30:24-25. Mr. Clark believes that it was Detective LaChance who presented him with a small card at the entrance to his apartment. Mr. Clark initially testified that AUSA Nolan told him that he signed a consent form against a wall above his head. He later retracted this statement and stated that his girlfriend told him that the agents presented him with a card on the night in question, which he signed against a wall. The signature on the consent form does not resemble Mr. Clark's signature and he does not recall signing it.
Detective LaChance credibly testified that he received verbal consent from Mr. Clark for the search outside the apartment door and written consent when he entered Mr. Clark's kitchen before the search took place. He recalls Mr. Clark holding his son in the kitchen and that both he and Mr. Clark were standing when the form was signed. He further recalls Mr. Clark's kitchen was too cluttered to provide a suitable surface for signing the consent form. The court finds that Mr. Clark did in fact sign the consent form and that his signature was altered by the circumstances in which it was signed.
Detective LaChance witnessed Mr. Clark's signature on 3-8-13 at 0036 hours on a consent form that states as follows:
I freely give my permission to Police Officer Detective LaChance' of the Rutland City Police to conduct a complete search of... My apartment 29 Church St. Apt 3' and its contents here under my control. I understand I do not have to ...