United States District Court, D. Vermont
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
SUPPRESS STATEMENTS PURSUANT TO THE FIFTH AMENDMENT AND
MIRANDA V. ARIZONA (DOC. 47)
Christina Reiss, United States District Court District Judge
before the court is Defendant Quincy Alexander's motion
to suppress statements obtained in the course of a September
29, 2016 interview by Burlington Police Department
("BPD") Sergeant Paul Petralia and Lieutenant
Michael Warren in a mall parking garage (Doc. 47). Defendant
argues that he was subjected to custodial interrogation
without the warnings required by Miranda v. Arizona,
384 U.S. 436 (1966). The government opposes the motion.
court held an evidentiary hearing on March 9, 2018, at which
both BPD officers testified. Without objection, the court
also considers the evidence presented during evidentiary
hearings held on April 11, 2017 and May 1, 2017 with regard
to Defendant's initial motion to suppress.
government is represented by Assistant United States
Attorneys John J. Boscia and Michael P. Drescher. Maryanne E.
Kampmann, Esq. represents Defendant.
Findings of Fact.
upon the preponderance of the evidence, the court finds as
follows. On September 28, 2016, at approximately 5:00 p.m.,
BPD officers responded to a report of a drive-by shooting at
a multi-unit residence located at 31 Hyde Street in
Burlington, Vermont. Witnesses reported seeing an
African-American male with a large build making cell phone
calls outside the building immediately prior to the shooting.
subsequently found three bullet holes in the 31 Hyde Street
building, one penetrating the front door of unit #7 on a
trajectory towards unit #6, one lodged in an interior wall
also on a trajectory towards unit #6, and a third in a second
floor wall, just inches from an unoccupied crib where an
infant usually slept. The trajectory for the third bullet
also passed in close proximity to unit #6. There were no
reported injuries. BPD officers identified the occupants of
unit #6 as Darren McCray, Shelly Sanders, Leon Delima, David
Rosario, and Chelsea Barber. They were aware of two recent
assault and robberies at unit #6.
female who lived across the street from 31 Hyde Street stated
that she had witnessed the drive-by shooting and that three
to four gunshots were fired from the passenger side of a
maroon colored 2015 Ford Escape with tinted windows. Through
a partially lowered driver's side window she saw a male
operator of unknown age and race before the vehicle left the
scene. Because she worked in the automotive industry, she
advised that she was very sure of the make, model, and year
of the vehicle. She was also certain the vehicle did not have
Vermont license plates, but she was less certain of the
issuing state. She stated that the vehicle's out-of-state
"colored" plates may have been from either
Pennsylvania or New York. In response to her report, BPD
disseminated a "be on the lookout" for a vehicle
matching the description she provided which included a
"stop and hold" instruction requesting law
enforcement officers who encountered a vehicle matching the
description to detain the vehicle until BPD could
morning of September 29, 2016, BPD held a briefing at which
the "be on the lookout" and details of the drive-by
shooting were disseminated to BPD officers. Detective Dwayne
Mellis was among the BPD officers tasked with canvassing
local hotel parking areas, mall parking lots, and parking
garages for a vehicle matching the description. On the same
day of the briefing, he located a vehicle that appeared to be
a match on the second level of a parking garage attached to a
mall that included a Macy's department store (the
"Macy's garage"). The vehicle in question was a
maroon Ford Escape with rear tinted windows and Illinois
plates. Detective Mellis called BPD dispatch for a records
check and determined that the vehicle was a 2016 Ford Escape
registered to Hertz Rental Car. Although the vehicle was
unoccupied when he first discovered it, he later observed an
African-American male enter the vehicle. He contacted BPD
Sergeant Paul Petralia to report the apparent vehicle match
and to advise him of the Illinois plate number, and then left
his location to continue his canvass.
Petralia proceeded to the Macy's garage dressed in plain
clothes and carrying a holstered firearm which was concealed
by his untucked shirt. He arrived in an unmarked vehicle and
parked a short distance away from the Ford Escape which was
parked nose-in facing a guardrail. Sergeant Petralia ran the
vehicle's plate number and determined that it belonged to
a rental company. He noted that a male was seated in the
driver's seat. He conferred with BPD Lieutenant Michael
Warren by cell phone and they formulated a plan to make
contact with the operator after Lieutenant Warren arrived on
later Lieutenant Warren arrived in an unmarked vehicle at the
Macy's garage dressed in plain clothes with a holstered
and concealed firearm. For safety reasons, he and Sergeant
Petralia decided to approach on either side of the Ford
Escape with Sergeant Petralia approaching the passenger side
while Lieutenant Warren approached the driver's side.
When he reached the vehicle, Sergeant Petralia knocked on the
passenger-side window and displayed his badge. In response,
Defendant rolled down the vehicle's windows, whereupon
both Sergeant Petralia and Lieutenant Warren smelled the
strong odor of burnt marijuana. From his vantage point,
Lieutenant Warren observed a large pile of currency on the
driver's side floor near Defendant's feet and two
cellphones, one in Defendant's hand and the other on the
Warren asked Defendant if he would mind speaking to them
outside the vehicle and Defendant exited the Ford Escape.
Once outside the vehicle, Lieutenant Warren asked Defendant
if he could pat him down for weapons. Defendant appeared
surprised by the request, raised his hands in the air, and
said something to the effect of "wow, okay." No
weapons or contraband were detected on his person. After
exiting the vehicle, Defendant stood with both officers
between the Ford Escape's driver side door and another
parked vehicle. As the interview progressed, Defendant and
the officers moved as vehicles entered and exited the garage
in their vicinity.
officers asked Defendant for identification and he produced a
New York operator's license identifying him as
"Quincy Alexander." Sergeant Petralia could not
recall how long he kept Defendant's identification, or
whether he returned it immediately after checking it. Almost
immediately, he recognized Defendant's name as being
associated with a December 27, 2015 fatal shooting on Church
Street in Burlington. Defendant was present in the area of
the shooting, as were 31 Hyde Street residents Leon Delima
and Shelly Sanders. After the shooting, Defendant and Mr.
Delima fled the scene and were later detained. Defendant was
subsequently identified as an associate of the victim.
Lieutenant Warren also recognized Defendant's name in
association with the 2015 Church Street shooting. Lieutenant
Warren attempted to alert Sergeant Petralia to the
connection, and Sergeant Petralia responded to the effect of
"yeah I understand as well." Realizing that he had
left his audio recording device in his vehicle, Lieutenant
Warren went back to retrieve it. While doing so, he called
Detective Jeffrey Beerworth, the lead investigator of the
drive-by shooting. Detective Beerworth informed him that
Quincy Alexander fled from the scene of the 2015 Church
Street shooting and that some of the individuals living at 31
Hyde Street had also been present at the scene. With his
audio recorder concealed in a notebook, Lieutenant Warren
returned to the Ford Escape and recorded the remainder of the
encounter in the Macy's garage.
the BPD officers called in Defendant's identification,
they were advised that his operator's license was civilly
suspended. Defendant related that he had previously missed a
court appearance and a bench warrant had issued for his
arrest but was apparently vacated that morning when he
appeared in court. Because the presiding judge could not
address his appearance in the morning, Defendant was told to
come back to court in the afternoon. The BPD officers were
aware that Defendant was facing a state court charge for
providing false information to a police officer.
asked about the odor of marijuana, Defendant admitted that he
had smoked marijuana that morning to "take the edge off
his court appearance. Defendant further explained that he was
from New York and had arrived in Vermont with his girlfriend
a few days earlier and was staying at the Motel 6 in
Colchester, Vermont. He stated he came to Vermont in order to
clear up the bench warrant and some tickets and to obtain
"bud" which the officers understood was a reference
advised that the Ford Escape was a rental vehicle and that
his girlfriend, Elena Roberts, an attorney who worked as a
public defender, had rented it for him to take to Vermont.
Informing Defendant that "she can come by if she wants[,
]" Ex. 7 at 3 (Sep. 29, 2016), Sergeant Petralia stood
next to Defendant while he used his cellphone to call Ms.
Roberts. After Defendant spoke with Ms. Roberts, he handed
the phone to Sergeant Petralia so that Ms. Roberts could
speak to him. Ms. Roberts informed Sergeant Petralia that she
was in New York City and that Defendant had come up to
Burlington the previous night to address some traffic
violations. She confirmed that neither she nor Defendant
would consent to a search of the Ford Escape. Sergeant
Petralia responded that BPD would "certainly"
respect her decision. Id. at 6.
after Defendant concluded his first call to Ms. Roberts,
Lieutenant Warren advised Defendant that he was not under
arrest. He explained that the officers were investigating a
shooting, they had some questions for Defendant regarding his
possible involvement, and as soon as the questioning was
complete they could "get [Defendant] on [his] way"
and be on their way themselves. Id. at 11.
course of their interview, the BPD officers confronted
Defendant regarding his inconsistent statements with respect
to when he came to Vermont and with whom. In response,
Defendant attempted to explain his relationship with Ms.
Roberts, claiming she was his girlfriend and then claiming
she was his wife (although he conceded they were not married)
and further explaining that he had another girlfriend named
Erin from Winooski, Vermont. When the BPD officers asked
Defendant about the two cell phones in the Ford Escape, he
claimed that one phone was an old phone that only played
officers, however, observed the "old phone"
receiving incoming calls. As Defendant continued to provide
inconsistent information, the officers expressed their
concerns and intimated that Defendant was under suspicion:
Lieutenant Warren: Here - here's my
concern, okay? A houseful of guys got shot up ...