United States District Court, D. New Hampshire
McCAFFERTY, District Judge.
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.
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.
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.
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.
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.
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. 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.
Officers Obtain Consent to Search Hardy's Apartment
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.
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.
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
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.
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.
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."
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.
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.
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.
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.
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.
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.
The Search Pursuant to Hardy's Consent
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.
also located the Keurig box to which the dog alerted during
the protective sweep. They opened the box and found, among
other items, marijuana, vials containing testosterone,
hypodermic needles, scales, suboxone, and a pipe.
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
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. 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. 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...."
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. Having found what they believed to be
a large quantity of heroin, the officers stopped searching
Hardy's apartment and sought a search warrant.
Hardy's June 23 Morning Statement
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"
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
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.
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."
Search Pursuant to a Warrant
police obtained a warrant to search Hardy's apartment at
approximately 2:00 p.m. on June 23, 2015. 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.
Hardy's June 23 Afternoon Statement
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.
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.
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.
before Hardy's surgery, Dr. Parisien dictated the
[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.
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
Hardy's Waiver of Miranda Rights and Statements at the
MPD on June 24, 2015
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.
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.
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
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.
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 ...