United States District Court, D. Vermont
AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS FRUITS
OF ARREST, GRANTING DEFENDANT'S MOTION TO SUPPRESS FRUITS
OF AUTOMOBILE SEARCH, GRANTING DEFENDANT'S MOTION TO
SUPPRESS HIS STATEMENTS, AND GRANTING DEFENDANT'S MOTION
TO SUPPRESS SUGGESTIVE IDENTIFICATION (DOCS. 24, 25, 26,
Christina Reiss, District Judge.
Andrew Williams is charged with knowingly and intentionally
possessing with intent to distribute cocaine base in
violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B).
Pending before the court are Defendant's motion to
suppress fruits of his arrest, motion to suppress fruits of
an automobile search, motion to suppress statements he made
following his arrest, and motion to suppress a suggestive
identification. (Docs. 24, 25, 26, 27.) The government
opposes the motions. The court held an evidentiary hearing on
February 20, 2019 at which Drug Enforcement Agency
("DEA") Special Agent ("SA") Timothy
Hoffmann, DEA SA Kristian Pinkham, and Task Force Officer
("TFO") Chris May testified.
is represented by Robert W. Katims, Esq. The government is
represented by Assistant United States Attorney Matthew J.
Findings of Fact.
government has established the following facts by a
preponderance of the evidence. SA Hoffmann is a case agent
employed by the DEA who has been trained in identification
procedures, among other things. On May 17, 2018, he received
a tip from a source of information that a female named
Danielle Guerin would be traveling to Winooski, Vermont to
purchase $500 worth of cocaine base from a black male from
Pennsylvania who wore glasses and was
well-dressed. SA Hoffmann had worked with the source of
information previously. The government offered no evidence of
the source's reliability beyond what it claims is
corroboration of the source's tip.
same day the tip was provided, SA Hoffmann, as well as other
law enforcement agents, set up surveillance in the area of
St. Paul Street in Burlington, Vermont, where they observed
the source of information as well as another female and a
male. SA Hoffmann recognized the other female as Danielle
Guerin. SA Hoffmann was aware that Ms. Guerin was a drug user
and was suspected of supplying drugs to other individuals. At
some point, the three individuals entered a vehicle. The
agents followed the vehicle as it traveled to Main Street in
Winooski and parked at a gas station. SA Hoffmann, who was
parked in a commercial parking lot on Union Street in
Winooski, observed Ms. Guerin leave the gas station, walk
west on Union Street, and turn left onto Weaver Street. He
could not see 111 Weaver Street from his location. Although
it is not clear from the evidence, it appears that 111 Weaver
Street is a multi-unit building.
Hoffmann drove down the block of Weaver Street, but he did
not observe Ms. Guerin. He circled the block. After
approximately three minutes, he observed Ms. Guerin leaving
111 Weaver Street, walking north on Weaver Street, and taking
a right on Union Street. SA Hoffmann did not witness a drug
transaction and he did not clarify whether he saw Ms. Guerin
on the porch or whether he actually saw her exit the
Hoffmann left his vehicle, approached Ms. Guerin, and
demanded that she "hand over the crack." He
testified that at the time he gave this order, Ms. Guerin was
under arrest. In response to SA Hoffmann's command,
Ms. Guerin produced a plastic bag containing a white chunky
substance from within her bra. SA Hoffmann asked her if the
location was a good place to talk and she replied that it was
Hoffmann transported Ms. Guerin to a nearby cemetery where
they were joined by SA Matt Cannon. While seated in the
vehicle, SA Hoffmann told Ms. Guerin that she was under
arrest, implied that she would benefit from cooperation, and
questioned Ms. Guerin without the benefit of Miranda
warnings. This interview was not recorded.
SA Hoffmann questioned Ms. Guerin, SA Cannon stood outside
the vehicle with a radio and relayed the information Ms.
Guerin was providing to the other agents conducting
surveillance. During the course of an approximately
ten-minute interview, Ms. Guerin admitted that she purchased
$500 worth of crack from a black male named "Sam."
She claimed to have purchased the crack on the front porch of
111 Weaver Street and stated that over the past week, she saw
Sam at a Motel 6 to purchase drugs and that earlier that day
she had purchased drugs from him. She provided the cellular
phone number that she used for Sam and advised that Sam had
twenty ounces of crack in his possession. Ms. Guerin
described Sam as a young, black male from Philadelphia who
wore glasses and was well-dressed. SA Hoffmann transported
Ms. Guerin to the Winooski Police Department where she was
released without being processed or charged.
SA Hoffmann questioned Ms. Guerin at the cemetery, SA Pinkham
conducted surveillance from a location on Weaver Street, just
north of the intersection of Weaver Street and Union Street.
He did not observe Ms. Guerin enter or exit 111 Weaver
Street, although in the course of his surveillance he saw
people coming and going from that address.
Cannon, SA Pinkham learned that Ms. Guerin's source of
supply was an African-American male from Pennsylvania who
wore glasses, a button-up shirt, and a baggy overshirt or
sweater. SA Pinkham observed a black male wearing
glasses and a gray button-up shirt exit 111 Weaver Street and
get into a gold Chrysler SUV (the "SUV") with
Pennsylvania license plates. He noted Defendant's sweater
was "open" and "kind of flowing in the
wind" as he was walking to his vehicle. At the time, SA
Pinkham was approximately one hundred yards from 111 Weaver
Street. When asked how much he could see of the residence, he
testified "not much" and that he could "kind
of see the door. This area of Winooski has a substantial
refugee population and is one of the most racially diverse
areas of Vermont.
Pinkham radioed his observations to SA Cannon and SA
Hoffmann. SA Pinkham then followed the SUV as it drove around
the rotary in downtown Winooski, exited onto Route 15, and
turned left onto East Street. Upon hearing that SA Pinkham
was pursuing the SUV, TFO May and TFO Benjamin Adams followed
SA Pinkham's unmarked vehicle onto East Street, each
driving a separate unmarked vehicle.
reaching the end of East Street, the SUV made a three-point
turn to face south. SA Pinkham testified that he believed
this was a surveillance detection technique to determine
whether the operator of the vehicle was being followed. SA
Hoffmann communicated to the officers who were following the
SUV to stop the vehicle. SA Pinkham drove towards the SUV and
motioned for it to stop. The SUV maneuvered around SA Pinkham
and was blocked by the other unmarked law enforcement
vehicles. SA Pinkham activated white flashing emergency
lights that were hidden in the front grill of his vehicle,
however, he credibly testified that he is not sure when he
did so in the course of the events. Surveillance video
footage from a liquor store shows SA Pinkham's vehicle as
it travels north on East Street but does not reveal the
lights flashing although the quality of the video is less
than ideal. TFO May credibly testified that he did not see
any emergency lights and could not verify whether they would
be visible to the operator of the SUV.
unmarked vehicles surrounded the SUV, Defendant turned off
the SUV's engine and, in approximately two seconds,
exited the vehicle and began running. TFO Adams, TFO May, and
SA Pinkham, all of whom were dressed in plain clothes,
pursued him. The only police insignia worn by the officers as
they ran after Defendant was a badge hung around SA
Pinkham's neck. TFO Adams was brandishing a weapon as he
ran although it does not appear to have been visible to
Defendant whose back was to law enforcement. From a distance
of approximately fifty yards, TFO May shouted "stop,
police." SA Pinkham also believes that he shouted
"stop, police." The government proffered no
evidence that this command was heard or reasonably could have
been heard by Defendant.
running, TFO Adams fell and broke his arm. TFO May eventually
caught up with Defendant and tackled him to the ground,
handcuffing and arresting him. At the scene of the arrest,
agents discovered a broken cell phone which they later
confirmed had a phone number that matched the phone number
provided to them by Ms. Guerin for "Sam."
search incident to arrest revealed that Defendant was in
possession of $3, 636.49. TFO May escorted Defendant to a law
enforcement vehicle. In the vehicle, TFO May told Defendant
that he was responsible for TFO Adams's injury. TFO May
did not administer Miranda warnings before making
this statement. Defendant denied that he was responsible. In
response to a question by Defendant as to what had happened,
SA Pinkham stated that Defendant would find out soon enough
and he knew what he did.
SUV was transported to the Winooski Police Department where
it was searched without a warrant or Defendant's consent.
Approximately seventeen grams of suspected cocaine base and
approximately $4, 904.00 were found concealed below the
center console of the vehicle. It is not clear whether any
portion of the SUV's interior was dismantled to locate
his arrest, Defendant was transported to the Winooski Police
Department where he was questioned by SA Hoffmann. SA
Hoffmann, who had not seen Defendant previously, used a
cellular phone in the sally port to take a photograph of
Defendant without his glasses. The photograph depicts an
African-American male with a beard and mustache, a close-cut
afro, a dark-colored button-up shirt, and a patterned
light-colored overcoat. SA Hoffmann sent the photo to Ms.
Guerin via text with the following message: "Is this the
guy[?]" Ms. Guerin responded, "Yes[.]" SA
Hoffmann then texted: "What door did he come out of at
weaver st apt?" to which Ms. Guerin responded: "He
didn't he was sitting in the chair[.]" SA Hoffmann
captured the text message on his phone and a screen shot of
it was introduced into evidence. SA Hoffmann testified that
at the time that he took Defendant's photograph, there
were no exigent circumstances and he was not concerned that
the wrong person had been arrested. Somewhat inconsistently,
he stated that he took the photograph because he wanted to
confirm that the person in custody was Ms. Guerin's
source of supply.
secure room inside the Winooski Police Department which is
not accessible to the public, Defendant was questioned by SA
Hoffmann with TFO May present. SA Hoffmann and TFO May were
armed at the time but their weapons were not visible. The
interview room contained a table and chairs as well as
fingerprinting and photograph processing equipment. SA
Hoffmann recorded the audio of the interview.
Hoffmann introduced himself and TFO May and explained briefly
their roles with the DEA. Using what he described as a U.S.
Marshals booking form, SA Hoffmann asked Defendant to provide
his name, height, weight, date of birth, place of birth,
address, and marital status. In response to a question about
Defendant's marital status, Defendant stated, "I
fucked up," and "I was doing good, man, working,
man. Fuck. Shit fucked up, man." (Gov. Ex. 3,
Suppression Hearing, Feb. 20, 2019, 4:04 - 4:15.) While SA
Hoffmann filled out the U.S. Marshals Service form, Defendant
twice asked when he would receive Miranda warnings.
SA Hoffmann did not respond to those inquiries.
Hoffmann explained that DEA agents pursue people at the
bottom of the supply chain and work their way "up the
ladder." He advised Defendant that he had contacts in
Philadelphia who were aware of drug trafficking activity and
explained the benefits of cooperation. He stated:
Your cooperation, you know, helps you out. Because I can call
my AUSA and say, "Hey, Andrew was very cooperative. He
said there's this going on here, this was going on
there." And he'll say, "great, let's go let
Andrew sleep in his bed tonight, and maybe we'll figure
out something down the road."
Id. at 5:55 - 6:12. Defendant interrupted to ask
about the chances of him actually being released, and SA
Hoffmann did not answer him, stating: "I'm still
doing my thing here." Id. at 6:17 - 6:19. SA
Hoffmann then explained some of the evidence against
approximately six minutes of discussion, Defendant was asked
if he was willing to answer questions about who he answered
to. Defendant responded that he was "just trying to get
home." Id. at 7:48 - 7:50. SA Hoffmann stated:
I know sometimes people are hard on their luck and one of
their boys says, hey, you want to come up and make a quick
rack for a day or two, then you do this, you do my work and
you get this cut, and you know, that's glorified.
You're getting the girls, you're getting the money,
and you're going back.
Id. at 8:00 - 8:14. In response, Defendant stated:
"I was just trying to pay my rent, Officer" and
"I fucked up, man." Id. at 8:14 - 8:24.
Hoffmann then read Defendant Miranda warnings, after
which Defendant signed a written waiver form. In the course of
the subsequent interview, SA Hoffmann reiterated the benefits
of cooperation, advising Defendant:
You need to take a leap of faith because I need to call the
assistant U.S. attorney and say, hey John, my boy Andrew,
he's been honest with me, it took a little bit for him to
be honest and this is the type of work he can do right now.
And he'll say, well what do you think?
Id. at 28:24-28:40.
Hoffmann testified that it is part of his personal process to
talk to a suspect prior to issuing Miranda warnings
in order to build rapport, explain the benefits of
cooperation, and to convey the strength of some of the
evidence against him or her. He further explained his
personal process in a colloquy with Defendant's attorney:
Q: So again I will ask you the question. Why have this talk
at Mr. Williams prior to reading him Miranda'!
Other than just that's the way you do it. Is there a
purpose for it?
Q: What's the purpose?
A: As I said in the beginning of my testimony, my goal is to
work the way up the ladder and not down the ladder and to go
to source cities and locate and identify and arrest drug
Q: And you can do all of that after Miranda, right?
Q: Why do you do it before Miranda!
A: Because you can do it before Miranda, too.
Q: I mean, the-part of the purpose of it is to make it more
likely that he might waive Miranda and speak with
Q: In fact, you do kind of the-the waiver portion before you
even read Miranda by, if I heard it correctly. You
say, you talk, you do the demeanor, the rapport, the
explaining cooperation, the evidence against him, and then
say, hey, now do you want to talk to me? ...