United States v. Casellas

          ORDER

          LANDYA McCAFFERTY, District Judge.

         On June 22, 2015, Jeannette Hardy was assaulted by an unknown man as she attempted to enter her apartment building and then was shot by him as she escaped and ran outside. In the aftermath of the shooting, Hardy made statements to law enforcement officers and signed a consent form, authorizing them to search her apartment. While searching Hardy's apartment, which she leased with Zakee Stuart-Holt, officers discovered a large amount of what they believed to be heroin. Law enforcement officers subsequently executed a second search of the apartment after obtaining a warrant. Hardy and Stuart-Holt have been charged with conspiracy to distribute and possess with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a). Both Stuart-Holt and Hardy move to suppress evidence seized during the searches of the apartment. Hardy also moves to suppress certain statements she made following the shooting.

         On January 14 and 15, 2016, the court held an evidentiary hearing on the motions to suppress. At the hearing, the following Manchester Police Department ("MPD") police officers testified: Sergeants Michael Bergeron and Robert Bellenoit; Detectives Todd Leshney, Andrew Fleming, Derek Sullivan, Thomas DuBois, and Robert Tremblay; and Patrolman Shaun McKennedy. Hardy and Stuart-Holt also called two medical professionals: Dr. Michael Edwards, an emergency room physician, and Ann Berthiaume, a social work case manager. The court held the record open for a week so that Hardy and Stuart-Holt could depose Dr. Robert Parisien, a physician who performed surgery on Hardy's hand. Hardy and Stuart-Holt submitted a copy of Dr. Parisien's deposition to the court. The court heard oral argument on the motions to suppress on January 22, 2016.

         FACTS

         I. The Shooting

         On June 22, 2015, Jeannette Hardy left her apartment building through the front door to walk her dog. During the walk, Hardy spoke on the phone with Zakee Stuart-Holt, who was incarcerated at the Merrimack County House of Corrections ("MCHC"). While Hardy was out on her walk, an unknown man entered the front door of her apartment building. When Hardy returned and stepped through the door to her building, the unknown man attacked her. Hardy was still on the phone with Stuart-Holt at the time. As Hardy attempted to flee, her attacker shot her in the hand. Hardy then ran down the street to a convenience store. A video surveillance camera that captured the attack shows a timestamp of 9:07 p.m.

         At about 9:08 p.m., the MPD received several 911 calls reporting a gunshot and a woman screaming. The MPD dispatch log shows that police officers arrived at Hardy's apartment building roughly two minutes later. Emergency Medical Services ("EMS") located Hardy at the convenience store. At 9:22 p.m., EMS transported Hardy to Catholic Medical Center in Manchester, New Hampshire by ambulance. Patrolman Shaun McKennedy accompanied Hardy to the hospital.

         Shortly after the shooting, officers contacted Hardy's landlord, who informed them that Hardy lived in the second-floor unit of a two-unit apartment building. The first-floor unit was unoccupied. While standing outside the building in the aftermath of the shooting, an officer reported seeing movement in a window of the unoccupied first-floor unit.

         At about 11:42 p.m., after conducting witness interviews and an extensive investigation outside of Hardy's apartment building, officers entered the building to look for Hardy's attacker.^[1] They began by checking the empty first-floor apartment and common attic and basement. During the protective sweep, officers used a dog that was trained to detect both people and narcotics. While clearing the attic, the dog alerted to a box for a Keurig coffee maker. The officer handling the dog, Chad Tennis, noticed a strong odor of marijuana coming from the box. Tennis left the box in place. The officers then entered Hardy's second-floor apartment and completed the search of the building. No person was found in the building.^[2]

         II. Officers Obtain Consent to Search Hardy's Apartment

         In the meantime, Hardy was in the emergency room at the hospital. Hardy arrived at the hospital at 9:37 p.m. Dr. Michael Edwards examined Hardy at 9:45 p.m. and described her as "emotionally upset." At that time, a nurse noted that Hardy was "anxious" and "in distress due to pain, " but also found her "cooperative [and] alert." Hardy described her pain as sharp, constant, and "10" on a scale of 1 to 10. Hardy's medical record shows that, at 9:50 p.m., the hospital gave her morphine sulfate, which is a pain medication. Side effects of that medication include sleepiness and confusion.

         At about 9:45 p.m., two officers from the MPD violent crimes unit, Sergeant Michael Bergeron and Detective Todd Leshney, joined McKennedy at the hospital. When Bergeron and Leshney arrived, Hardy was in the emergency room sitting upright in a hospital bed, with blood on her clothes, and with her hand bandaged. McKennedy described Hardy as "handling [the situation] very well." Although Hardy was visibly upset and in pain, McKennedy recalled that she was easy to speak to and could recollect what had happened.

         Hardy told Leshney and Bergeron that the attacker was inside the common hallway of her apartment building when she returned from her walk, and that she had a surveillance system that would have captured the attack. Hardy informed the officers that the footage was stored on a digital video recorder ("DVR") located on a television stand in a bedroom of her apartment. During this conversation, Bergeron was "struck" by how "calm" Hardy appeared. Leshney informed Hardy that officers at her apartment building were preparing to search the building for her attacker.

         About 15-20 minutes after he arrived at the hospital, Leshney took a telephone call at the nurses' station from someone claiming to be Hardy's husband. Leshney asked the caller for his name several times before the caller hung up. Several minutes later, MCHC Sergeant Matthew Lamanuzzi called the nurses' station. Lamanuzzi told Leshney that inmate Stuart-Holt was concerned for Hardy's welfare because Stuart-Holt was on the phone with Hardy when she was shot. Leshney asked Lamanuzzi to have Stuart-Holt call him back on his cell phone. Leshney testified that he wanted to speak with Stuart-Holt to gather information about the shooting and the surveillance system.

         After speaking with Lamanuzzi, Leshney and Bergeron asked Hardy for consent to search her apartment for evidence of the shooting and to collect the DVR. Leshney presented Hardy with a standard MPD consent form that authorized officers to collect "any letters, papers, materials or other property which they may desire." Hardy asked Leshney about the meaning of that phrase, and he told Hardy that their search of the apartment would focus on looking for evidence of the shooting and collecting the DVR. Leshney also explained that if Hardy did not consent to a search of her apartment, he would apply for a warrant. Leshney explained that a judge might not approve the application, but if the judge did, the MPD would search her apartment pursuant to the warrant. Hardy then signed the consent form at approximately 10:15 p.m.

         At 10:18 p.m., Dr. Edwards described Hardy as "oriented to person, place and time, " which means that she knew what time it was, who she was, and where she was. In those same notes, Dr. Edwards indicated that Hardy's affect was "anxious, " her judgment was "normal, " her remote and recent memory were "normal, " but her concentration was "poor."

         At some point after Hardy signed the consent form, Stuart-Holt called Leshney's cell phone and asked to speak with Hardy. Leshney refused to allow Stuart-Holt to speak with Hardy because, as Leshney explained, he had a policy of prohibiting witnesses from speaking to one another during an investigation. Since Hardy was on the telephone with Stuart-Holt during the shooting, he did not want to permit them to speak to each other while the investigation was underway. During the telephone call, Leshney asked Stuart-Holt about the DVR. Stuart-Holt informed Leshney that the surveillance footage was stored offsite and could be accessed remotely. After speaking with Stuart-Holt, Leshney determined that Stuart-Holt did not have useful information about the surveillance system because the information Stuart-Holt gave him directly contradicted specific and credible information he had obtained from Hardy. Additionally, Stuart-Holt did not know the login and password to access the system remotely and could not identify who had set up the system.

         Leshney told Stuart-Holt that the police intended to enter the apartment to collect the DVR pursuant to Hardy's consent to search. Stuart-Holt said nothing to indicate that he objected to the police entering the apartment.^[3]

         After Leshney spoke with Stuart-Holt, Hardy's landlord, Art Gatzoulis, who is also a criminal defense lawyer, arrived at the hospital and asked to speak with Hardy. Gatzoulis informed the officers that he was there in his capacity as Hardy's landlord and not as her attorney. After checking with medical staff, the detectives allowed Gatzoulis to meet privately with Hardy.

         After Hardy met with Gatzoulis, Leshney asked both Hardy and Gatzoulis if they were "all set" with the consent to search. Hardy replied in the affirmative. Gatzoulis made a noncommittal gesture which Leshney interpreted as "I'm not her lawyer, don't be asking me that." McKennedy, Leshney, and Bergeron left the hospital at approximately midnight.

         According to medical records, shortly after midnight, Dr. Suresh Pothuru evaluated Hardy for withdrawal from heroin. Dr. Pothuru wrote that Hardy was "awake, alert, oriented, " and answered all of his questions "appropriately." He recommended that medical staff monitor Hardy for signs or symptoms of withdrawal and listed certain medications that could be administered as needed.

         Hardy remained at the hospital overnight on June 22, awaiting surgery on her hand the next day. No officers remained with Hardy overnight on June 22.

         III. The Search Pursuant to Hardy's Consent

         At 2:16 a.m. on June 23, 2015, Leshney and Bergeron, along with several other members of the MPD, entered Hardy's apartment to search for evidence of the shooting and to collect the DVR pursuant to Hardy's consent. While searching, the officers noticed "wads" of what appeared to be twenty-and hundred-dollar bills on a table in the living room, in a candle holder, and inside an open cardboard box. Per MPD policy, the officers called a supervisor to oversee the process of counting and then securing the cash they located in Hardy's apartment. The supervisor arrived at 2:31 a.m.

         Officers also located the Keurig box to which the dog alerted during the protective sweep.^[4] They opened the box and found, among other items, marijuana, vials containing testosterone, hypodermic needles, scales, suboxone, and a pipe.

         During the consent search, Detective Andrew Fleming was assigned to collect, bag, and label evidence. Fleming collected the contents of the Keurig box. He also located and collected the DVR on a TV stand in a bedroom, precisely where Hardy had described its location. Additionally, Fleming collected several items from the top of the TV stand, some of which were consistent with personal use of narcotics (i.e., orange and pink pills that he believed to be narcotics), and noted that the TV stand was covered with an off-white powdery substance.

         Fleming testified that, after the officers finished searching the apartment, he made one last "sweep" of the apartment, looking for gloves or other equipment the officers may have left behind while collecting evidence. During his sweep of the room where he had located the DVR, Fleming noticed an open gray plastic shopping bag on the floor a few feet from the TV stand.^[5] Standing above the shopping bag, Fleming could see that it contained Ziploc bags. At least one of the Ziploc bags was open and "sticking out" of the shopping bag. Inside the open Ziploc bag, Fleming could see off-white chalk-like objects that "matched the same color" as the powder "residue" he had observed on the TV stand.^[6] Once he made the connection between the off-white residue on the TV stand and the chalk-like items he observed in the shopping bag, he picked up the bag to get a closer look and then exclaimed "uh-oh" - as he realized that "this was a lot of drugs...."

         Fleming thought the drugs could provide a motive for the shooting. The officers field-tested the contents of the bag and the result was "presumptive positive" for heroin.^[7] Having found what they believed to be a large quantity of heroin, the officers stopped searching Hardy's apartment and sought a search warrant.

         IV. Hardy's June 23 Morning Statement

         On June 23, between 8:00 a.m. and 10:00 a.m., detectives Derek Sullivan and Thomas DuBois, who specialize in narcotics investigations, went to the hospital to interview Hardy. Sullivan and DuBois wanted to investigate Hardy's source of supply because of the large quantity of drugs the officers found during the consent search. When the detectives arrived, Hardy was sleeping, but she woke up when the detectives entered the room. Prior to the detectives' arrival, a nurse's note indicated that Hardy was "anxious" and "overwhelmed."

         Sullivan told Hardy that "if she was resting [they] would come back another time." He also explained that Hardy was not under arrest, but that detectives were applying for a warrant to search her apartment because they found what they suspected to be heroin while performing the consent search. Sullivan further explained that Hardy "would likely be charged with whatever drugs were found pursuant to that warrant." He told Hardy that if she assisted with the investigation, he could recommend leniency to the prosecutor. At some point, Hardy said "maybe I should speak to an attorney." Sullivan testified that he told Hardy that speaking with a lawyer was "an option" and reiterated that Hardy was not under arrest. DuBois testified that they told Hardy that it was "certainly her right" to speak with a lawyer but that she "did not require one at that point." Hardy agreed to talk to Sullivan and DuBois, and she then made incriminating statements.

         Both Sullivan and DuBois testified that throughout their interaction with Hardy, she was alert and responded to their questions intelligently. Sullivan testified that Hardy did not appear to be in extreme pain or visibly ill. He described Hardy as "relaxed" and their interaction with her as "mellow." DuBois described their interaction with Hardy as "cordial." The detectives were wearing plain clothes and did not restrict Hardy's movement, although at one point they closed the door to her hospital room. Hardy's roommate was in the room for some portion of the interview. At around noon, Hardy appeared tired, so Sullivan and DuBois left the hospital.

         After the detectives left, the medical records indicate that Hardy was prescribed klonopin "to help with anxiety." A nursing note also indicates that Hardy was "anxious, tearful/crying, restless, [and] overwhelmed." Earlier that morning, sometime before 11:38 a.m., Hardy met with Ann Berthiaume. Hardy told Berthiaume that she had a ten-gram-perday heroin addiction and that she was experiencing withdrawal symptoms. Berthiaume noted that, at that time, Hardy's thoughts were "normal, " and her speech was "normal" and "coherent." Berthiaume testified that Hardy was anxious, but was "otherwise... able to communicate effectively."

         V. Search Pursuant to a Warrant

         The police obtained a warrant to search Hardy's apartment at approximately 2:00 p.m. on June 23, 2015.^[8] The warrant was based in large part on information the police obtained during the consent search. Sullivan and DuBois briefly participated in the warrant search, during which they located cash, and what they believed to be heroin. During the warrant search, officers also seized a safe and records associated with a Bank of America safety deposit box.

         VI. Hardy's June 23 Afternoon Statement

         At about 2:30 p.m., Sullivan and DuBois returned to the hospital. They told Hardy about the cash and suspected heroin. The detectives again informed Hardy that she was not under arrest, and again Hardy agreed to speak with them and made incriminating statements.

         During the warrant search, Sullivan and DuBois recovered a phone that Hardy had described to them earlier that morning. They hoped to arrange for a delivery of drugs. Sullivan testified that their interaction with Hardy was "calm" and "cordial." DuBois testified that their interaction was "pleasant" and that he was "joking" with Hardy. The detectives stayed at the hospital for approximately 90 minutes. Some portion of that time was spent waiting for officers at Hardy's apartment to bring another cell phone to the hospital because Sullivan and DuBois had not retrieved the correct one.

         Sometime before 4:00 p.m., medical staff informed the detectives that Hardy's surgery was approaching, and they prepared to leave. On their way out, the detectives contacted their supervisor who, for the first time, informed them that an officer would stay with Hardy at the hospital and would arrest her if she tried to leave. The detectives informed Hardy of the change in circumstances and told her that before they spoke with her again, they would first advise her of her Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). Then, as the detectives were about to leave, a nurse asked DuBois for help wheeling Hardy to surgery. Dubois testified that he and Hardy joked while he helped the nurse transport her. Sullivan took pictures of the scene with his cell phone. Sullivan and DuBois then left the hospital.

         Shortly before Hardy's surgery, Dr. Parisien dictated the following note:

[Hardy] was found in her apartment with a large volume of cash and drugs and reported a gunshot wound to her hand.... The police have been involved and tell me that she is under arrest.... The police are here and they will go into the operating room with her.^[9]

         Dr. Parisien began Hardy's surgery at 4:00 p.m. After her surgery, at 4:44 p.m., medical records indicate that Hardy was "alert and oriented" and "[c]alm and cooperative, " but that she complained of "significant anxiety regarding [her] current situation and withdrawal symptoms." A uniformed MPD officer remained outside Hardy's hospital room throughout the night.

         VII. Hardy's Waiver of Miranda Rights and Statements at the MPD on June 24, 2015

         On June 24, Sullivan and Dubois arrived at the hospital at 9:30 a.m. They remained in Hardy's hospital room as medical staff gave Hardy discharge instructions and paperwork. Hardy's discharge instructions included a prescription for pain medication and instructions to ice and elevate her hand. Prior to the detectives' arrival, medical staff noted that Hardy was experiencing acute, continuous, throbbing pain in her right hand. Because Hardy's clothes had been taken as evidence, the detectives requested that hospital staff give Hardy scrubs to wear instead of being released in a hospital gown. Hardy was discharged at 10:35 a.m.

         The detectives then transported Hardy to the MPD. During the drive, Hardy was not handcuffed and sat in the front seat of Sullivan's car. On the way, Hardy asked the detectives to fill her prescription for pain medication, but the detectives declined because of a department policy prohibiting officers from administering medication.

         Once at the MPD, Sullivan and DuBois reviewed Hardy's Miranda rights with her. Sullivan asked Hardy if she had any questions and Hardy did not. Both Sullivan and DuBois testified that Hardy appeared to understand the form. DuBois testified that Hardy did not appear to be under the influence of any medication. Hardy then signed a Miranda waiver form at 10:58 a.m.

         Sullivan and DuBois debriefed Hardy until about 12:40 p.m. During her debriefing, Hardy made incriminating statements. Hardy then started making calls to arrange for a delivery of drugs. Hardy spent most of her time at the MPD that afternoon sitting in an interview room and waiting as she and the detectives attempted unsuccessfully to arrange controlled drug deliveries. Hardy remained at the MPD until 8:45 p.m.

         During the day, Sullivan and DuBois offered Hardy food, but she declined. They also took Hardy outside for cigarette breaks. The detectives asked Hardy about her pain throughout the day and Hardy told them it was "not too bad." Sullivan testified that their interaction was "very relaxed." Sullivan also testified that, through his work as a drug investigator, he had seen ...