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United States v. Williams

United States District Court, D. Vermont

April 4, 2019



          Christina Reiss, District Judge.

         Defendant 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.

         Defendant is represented by Robert W. Katims, Esq. The government is represented by Assistant United States Attorney Matthew J. Lasher.

         I. Findings of Fact.

         The 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.[1] 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.

         On the 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.[2]

         SA 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 building.

         SA 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.[3] 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 not.

         SA 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.[4] This interview was not recorded.

         While 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.

         While 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.

         From SA 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.[5] 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.

         SA 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.

         After 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.

         As the 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.

         While 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."

         A 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.

         Defendant's 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 this evidence.

         After 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.

         In a 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.

         SA 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.[6] 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.

         SA 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 Defendant.

         After 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.

         SA Hoffmann then read Defendant Miranda warnings, after which Defendant signed a written waiver form.[7] 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.

         SA 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?
A: Yes.
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 dealers.
Q: And you can do all of that after Miranda, right?
A: Correct.
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 you, correct?
A: Correct.
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? ...

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