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United States v. Hoisington

United States District Court, D. Vermont

June 27, 2017

UNITED STATES OF AMERICA
v.
HOWARD HOISINGTON, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS (DOC. 119)

          CHRISTINA REISS CHIEF JUDGE.

         This matter came before the court on May 25, 2017 for an evidentiary hearing on Defendant Howard Hoisington's motion to suppress (Doc. 119). Defendant contends that he was subjected to a warrantless and unlawful "across the threshold" arrest on the night of December 15, 2015 and moves to suppress the fruits of his arrest on that basis.[1] The government opposes the motion, arguing that Defendant's arrest did not violate the Constitution because it took place pursuant to a valid search warrant or, in the alternative, because he was subject to arrest pursuant to his furlough conditions. The court took the motion under advisement on May 25, 2017.

         Pursuant to a Second Superseding Indictment, Defendant is charged with one count of conspiring to commit robbery in violation of 18 U.S.C. § 1951(a), four counts of robbery in violation of 18 U.S.C. §§ 1951(a) and 2, and one count of maliciously damaging and destroying a building used in interstate commerce by means of fire and explosive materials, which proximately caused the death of one person and bodily injury to another, in violation of 18 U.S.C. §§ 844(i) and 2.

         The government is represented by Assistant United States Attorneys Paul J. Van de Graaf and John J. Boscia. Defendant is represented by Assistant Federal Public Defenders Steven L. Barth and Elizabeth K. Quinn.

         I. Findings of Fact.

         In December of 2015, Defendant was serving a criminal sentence on furlough through an agreement with the Vermont Department of Corrections Probation and Parole Office ("VT DOC"), and was living at his parents' home in Berlin, Vermont (the "Hoisington residence"). While on furlough, Defendant agreed to the following conditions:

I will allow my assigned Probation Officer or designee to visit me in my home or place of employment or elsewhere at any time.
I will submit my person, place of residence, vehicle, or property to a search at any time of the day or night by my assigned Probation Officer or designee.

(Gov't Ex. 3, ¶¶ E, M.) As a further condition of his furlough, Defendant had a curfew of 7:00 p.m. to 6:00 a.m., during which he was confined to the Hoisington residence.

         In the early morning hours of December 14, 2015, a fire in Northfield, Vermont resulted in the death of one individual and severe injuries to another. Through witnesses and confidential sources of information, law enforcement believed the fire was the result of an arson that had been committed as part of a robbery of a drug dealer and his girlfriend who were doused with gasoline and set on fire.

         On the afternoon of December 15, 2015, a confidential source of information wearing a wire recorded Defendant's father, Richard "Dickie" Hoisington, stating "Howie" was "involved" in the Northfield fire and that "they went there to rob him ... a drug dealer, robbing him for drugs." (Gov't Ex. 1 at 000021, f 13.) Dickie Hoisington further stated that "Howie" was with "J Zampieri" and Tammy Wilder a/k/a "Ma Tarn" who had been setting up the drug dealers so that they could be robbed.

         Vermont State Police ("VSP") officers subsequently effected a traffic stop of Dickie Hoisington for driving without a license. After receiving Miranda warnings, Dickie Hoisington advised law enforcement that Defendant was currently living at the Hoisington residence and could be located there. He further advised that Defendant had stated that he, "Tammy, " and "J" went to Northfield because Tammy needed money and that they intended to steal drugs. Defendant described spraying a male with gasoline and when "J" ignited a lighter, "everything caught on fire." Id. at 000022, ¶ 16b. Dickie Hoisington reported smelling gasoline in his trailer for the past few days and expressed his belief that "J" had blisters on his left hand from the fire. At approximately 6:49 p.m., VSP officers conducted a traffic stop and arrested Jonathan Zampieri and Tammy Wilder.

         Throughout the daytime hours of December 15 and into the evening, VSP officers conducted surveillance on the Hoisington residence in anticipation of Defendant's arrest.

         At approximately 8:22 p.m., Special Agent ("SA") Matthew Ekstrom of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") sought and obtained a federal search warrant for the Hoisington residence, which authorized a search at any time of the day or night from December 15, 2015 until December 29, 2015. The search warrant identified the Hoisington residence as 427 Junction Road, Lot #2, Montpelier, Vermont. It described the property to be searched as follows:

PROPERTY TO BE SEARCHED
The property located at 427 Junction Road, Lot #2, Montpelier, Vermont, is a tan single wide trailer that is located at the southwest comer of the intersection of Park Manor Road and Junction Road in Montpelier. Lot #2 is the first lot on the right as one turns onto Park Manor Road from Junction Road. There is a gravel ...

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