United States v. Alexander

          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

         Pending 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.

         The 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.^[1]

         The government is represented by Assistant United States Attorneys John J. Boscia and Michael P. Drescher. Maryanne E. Kampmann, Esq. represents Defendant.

         I. Findings of Fact.

         Based 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.

         Officers 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.

         A 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 investigate.

         On the 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.

         Sergeant 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 the scene.

         Minutes 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 passenger's seat.

         Lieutenant 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.

         The BPD 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.

         When 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.

         When 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 to marijuana.

         Defendant 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.

         Shortly 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.^[2] Id. at 11.

         In the 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 music.

         The 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 ...