APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge]
Page Kelley, Office of the Federal Public Defender, with whom Rheba Rutkowski, Assistant Federal Public Defender, was on brief for appellant.
David M. Lieberman, U.S. Dept. Of Justice, with whom Carmen M. Ortiz, United States Attorney, Lanny A. Breuer, Assistant Attorney General, and John D. Buretta, Deputy Assistant Attorney General, were on brief for appellees.
Before Howard, Circuit Judge, Souter, [*] Associate Justice, and Torresen, [**] District Judge.
TORRESEN, District Judge.
Appellant Moises Cintron entered a conditional guilty plea to a single-count indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Cintron preserved his right to appeal the denial of his motions to suppress the firearm seized from him during a lawful traffic stop. On appeal, Cintron argues that the district court abused its discretion by denying his first motion to reconsider and second motion to suppress without holding an evidentiary hearing. For the reasons set forth below, we affirm the district court.
On November 5, 2007, Massachusetts State Police Trooper Richard Gaudet observed a Nissan Maxima driving erratically on Route 128 in Lynnfield, Massachusetts. Trooper Gaudet activated his lights and signaled the driver to stop. The car came to a halt in the middle of the passing lane of the busy highway. Trooper Gaudet, joined by Trooper Stevie Browning and Sergeant James Deyermond, approached the car and discovered a female driver, a young girl in the passenger seat, and Cintron draped across the backseat either asleep or unconscious.
While Trooper Browning spoke with the driver, Sergeant Deyermond tried to rouse Cintron, first banging on the back passenger-side window, then opening the door and shaking him. When Cintron awoke, Sergeant Deyermond helped him out of the car. During this process, which took only minutes, Trooper Gaudet noticed a gun protruding from Cintron's pocket. Once the gun was secured, Cintron was arrested and taken back to the station where he made some incriminating statements. Cintron was ultimately charged with being a felon in possession of a firearm.
In July of 2008, Cintron's first court-appointed attorney filed a motion to suppress the gun and the statements that Cintron made at the station. In support of the motion, court-appointed counsel filed an affidavit sworn to by Cintron stating that he had not consented to the roadside stop or search. Three days after the motion to suppress was filed, Cintron's second lawyer – this one retained – entered an appearance in the case.
On August 15, 2008, the government filed its opposition to the motion to suppress, attaching, among other items, Trooper Browning's arrest report and Trooper Gaudet's Supplemental Report and affidavit. Trooper Browning's arrest report stated that while he was talking to the driver of the car, Trooper Gaudet and Sergeant Deyermond were helping Cintron out of the car. Trooper Browning heard Trooper Gaudet yell "gun!" and saw Trooper Gaudet take a gun out of Cintron's jacket pocket. In his report and affidavit, Trooper Gaudet gave an account that was consistent with Trooper Browning's. Trooper Gaudet saw a gun coming out of Cintron's left jacket pocket as Cintron started to get out of the car. Trooper Gaudet ran over to the passenger side of the car and grabbed the gun from Cintron's pocket.
On November 26, 2008, Cintron's retained counsel averred in an affidavit that a drug recognition expert evaluated Cintron at the station after his arrest and concluded that Cintron was under the influence of a narcotic analgesic. Retained counsel argued that Cintron could not have voluntarily waived his Miranda rights given his impaired condition.
On December 15, 2008, the district court denied Cintron's motion to suppress the gun without a hearing, concluding that the seizure was justified under the plain view doctrine because the affidavits established that Trooper Gaudet saw the gun protruding from Cintron's pocket before it was seized. See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). The district court scheduled an evidentiary hearing to determine whether Cintron had voluntarily waived his Miranda rights. During the hearing, Officer Scott Frost, the drug recognition expert who evaluated Cintron at the police station, testified about Cintron's condition. The district court judge found:
During questioning by Frost, Cintron admitted to snorting a line of heroin earlier that morning and Frost observed a number of characteristics that he considered consistent with heroin use. During the interview Cintron repeatedly fell asleep between questions and fell back against the wall or to the side. Cintron also had difficulty keeping his eyes open and ...