Plaintiff USA represented by CRAIG M. WOLFF U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE, DONALD E. CLARK U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE ATTORNEY TO BE NOTICED
Defendant (4) LAMAR YOUNG also known as DASH represented by EDWARD S. MACCOLL THOMPSON, BULL, FUREY, BASS & MACCOLL, LLC, P.A. LEAD ATTORNEY ATTORNEY TO BE NOTICED
RECOMMENDED DECISION ON MOTION TO SUPPRESS AND MOTIONS TO DISMISS AND MEMORANDUM DECISION AND ORDER ON MOTIONS TO SEVER AND FOR BILL OF PARTICULARS
John H. Rich III, United States Magistrate Judge
Defendant Lamar Young, charged with conspiring to distribute, and possess with intent to distribute, cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846, subjecting him to the penalty provisions of 21 U.S.C. § 841(b)(1)(B) (Count One), distributing and aiding and abetting the distribution of cocaine base, commonly known as “crack, ” in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Count Six), possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Seven), possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count Eight), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Nine), see Second Superseding Indictment (ECF No. 116) at 1-2, 4-6, moves to suppress evidence seized and statements made at the time of his arrest on March 11, 2014, at the Lewiston, Maine, apartment of his girlfriend, Jennifer Coleman, as well as all fruits of those seizures and statements, see Defendant’s Motion To Suppress Fruits of Search or Interrogation and All Post Arrest Statements of Mr. Young (“Motion To Suppress”) (ECF No. 112) at 1.
In addition, the defendant moves to dismiss Counts One and Six on the insufficiency of the Superseding Indictment (ECF No. 76), see Defendant Young’s Motion To Dismiss for Insufficiency of the Superseding Indictment (“Motion/Insufficiency”) (ECF No. 110) at 1, and Count One on the basis that 21 U.S.C. § 841(b)(1)(B) is unconstitutional on its face and as applied, see Defendant’s Motion To Dismiss Based on Unconstitutionality of Statute (“Motion/Unconstitutionality”) (ECF No. 109) at 1, for separate trials on the charges against him in both the Superseding Indictment and the Second Superseding Indictment and severance of his trial from those of his co-defendants, see Defendant’s Motion To Sever (“First Motion To Sever”) (ECF No. 111) at 1; Defendant Young’s Motion To Sever with Respect to Second Superseding Indictment (“Second Motion To Sever”) (ECF No. 172) at 1, and for a bill of particulars, see Defendant’s Motion for Bill of Particulars (“Particulars Motion”) (ECF No. 108).
An evidentiary hearing was held before me on the Motion To Suppress on June 25, 2014, and July 15, 2014, during which the defendant appeared with counsel, each side presented three witnesses, the government offered four exhibits, all of which were admitted without objection, and the defendant offered nine exhibits, one of which was admitted over objection and the rest of which were admitted without objection. On August 1, 2014, I heard oral argument on all of the pending motions and granted the government’s request for an opportunity to provide post-hearing briefing, limited to the submission on August 6, 2014, of simultaneous briefs with no response, on the subject matter of the validity, pursuant to the Fourth Amendment, of officers’ initial entry into the Coleman apartment to effectuate a warrant for the defendant’s arrest. On August 6, 2014, the parties filed post-hearing briefs. See Defendant Young’s Post-Hearing Memorandum in Support of His Motion To Suppress Fruits of Search or Interrogation and All Post Arrest [sic] (“Defendant’s Post-Hearing Brief”) (ECF No. 207); Government’s Supplemental Memorandum with Respect to Motion To Suppress (“Government’s Post-Hearing Brief”) (ECF No. 208). Following further motion practice, see ECF Nos. 210, 211, 212, 216, 220, 221, I permitted the defendant to file a responsive brief, see Defendant Young’s Response to Government Post-Hearing Memorandum Regarding Suppression (“Defendant’s Post-Hearing Response”) (ECF No. 209).
For the reasons that follow, I recommend that the Motion To Suppress be granted in part, with respect to all statements made by the defendant on March 11, 2014, other than his initial statement, and otherwise denied, and that the motions to dismiss be denied, and I deem the motions to sever moot in part, to the extent that the defendant seeks severance of his trial from those of his co-defendants, and otherwise deny them, and deny the motion for a bill of particulars.
I. Motion To Suppress
A. Proposed Findings of Fact
On the evening of March 11, 2014, a group of six law enforcement officers set out to execute a warrant for the arrest of the defendant that had been issued by this court earlier that day. The group comprised Lewiston police officer Ryan Rawstron, who was assigned as a task force officer to the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), Maine State Police Trooper Thomas Pappas, who was assigned to the Maine Drug Enforcement Agency (“MDEA”), Lewiston police officer and MDEA task force officer Tyler Michaud, Lewiston police officer Joey Brown, Auburn police officer Dave Madore, and Maine State Police Trooper Kevin Rooney.
The officers went to four Lewiston addresses. They stopped first at the Howe Street apartment of Kayla Davidson, whom Rawstron had interviewed shortly before March 11. During that interview, Davidson had informed him that she had been dating the defendant for a little over a month, that he had previously stayed with her and Stephanie Webster at an apartment on Ash Street, that he had given her a firearm that officers seized from her at the time of the interview, and that he had a black firearm. Michaud also knew that the defendant had a connection to the Howe Street address and that officers had located him there during a previous investigation.
Neither Davidson nor the defendant was at the Howe Street apartment. However, officers spoke with someone (unidentified at the suppression hearing) who suggested that they try Webster’s Ash Street apartment. They did so, but the defendant was not there. They then went to the Horton Street address of a woman named Crystal, another woman with whom they had information that the defendant had been staying. Some of the officers were familiar with that address and with Crystal because they had supervised a controlled drug purchase and executed a search warrant there. Crystal was present, along with an individual whom she said she was dating, but not the defendant.
The officers returned to the Howe Street apartment, where they found and spoke with Webster. She informed them that if the defendant was not at her apartment on Ash Street or the Howe Street or Horton Street apartments, he had to be back with his former girlfriend “Jen” on Walnut Street. She stated that the defendant had been staying with Jen a couple of nights here and there when he was not with Davidson. Webster did not know the address on Walnut Street but described the apartment building. In exchange for this information, the officers did not take her to jail that night on outstanding fines, fees, and warrants and permitted her to turn herself in the following day.
At about 11:00 p.m., the officers went to Walnut Street and located the three-unit apartment building described by Webster. Rawstron recognized a vehicle parked outside as that of Jennifer Coleman, whom he knew, from a prior investigation, had previously lived with the defendant in an apartment on Tampa Street in Lewiston. Michaud also knew, from a prior investigation, that Coleman had a longstanding off-again, on-again relationship with the defendant and that the two had lived together at the Tampa Street address.
Four officers guarded the exterior of the apartment building, with Michaud and Brown stationing themselves at the front near a fire escape and Rooney and Madore at the rear. Rooney was assisted in this task by a police dog. Rawstron and Pappas, who were armed and clad in jeans, t-shirts, and bulletproof vests emblazoned with the word “police, ” went to a back door and ascended three flights of stairs that led to the door of Coleman’s third-floor apartment. At about the same time as Rawstron and Pappas went inside the apartment building, Michaud observed one of the front window blinds being lifted, saw the defendant look out, and then saw the blinds close.
Rawstron and Pappas took a moment to position themselves because they thought that the defendant was possibly armed and dangerous. There was a small landing to the right of the top stair, about eight inches wide, too narrow for the officers to stand on with their police gear. Rawstron, who was in front, knocked on Coleman’s apartment door as he stood on the stairs. Pappas stood behind him, three or four steps down, head level with the door jamb. Rawstron heard someone inquire who was there. Per his usual practice, he did not respond. After about a minute, an individual who appeared to Rawstron to be a teenage girl opened the door. She was in fact Coleman’s oldest child, 22-year-old Saydi Brown. Rawstron inquired where Jen was and started to ask whether “Dash” (the defendant) was there but saw Coleman coming down a hallway. Coleman had been lying in bed in her bedroom at the opposite end of the hallway, which ran the length of the apartment, when she heard Saydi call out that the police were there. She had put on some pants and begun walking down the hallway toward the front door.
Within a matter of seconds, Coleman reached the officers. By that time, Rawstron had moved just beyond the entry threshold, and Pappas had moved up to the threshold, where he could begin to scan the interior of the hallway. Rawstron asked Coleman who was there. She responded that she and her kids were. He asked who else, and she told them that Dash was there. Rawstron told her that he needed to speak with him and walked past her down the hallway, followed by Pappas. Both drew their firearms. Rawstron also carried a flashlight. Neither Rawstron nor Pappas asked for or received Saydi’s or Coleman’s permission to enter. Coleman did not voice any objection to their entry.
Rawstron pushed aside a curtain that was covering Coleman’s bedroom door and saw a man whom he recognized as the defendant kneeling on the bed, his hands underneath the blankets. Rawstron shone his flashlight and pointed his firearm at the defendant and ordered him to show him his hands. Pappas, who was a couple of steps behind Rawstron, pointed his firearm at the defendant, as well. The defendant complied. Rawstron holstered his weapon, took the defendant’s right arm, and ordered him to step away from the bed. The defendant did so. Pappas then holstered his weapon. The holstered weapons would have remained visible to the defendant.
The bedroom was approximately 12 feet by 12 feet and furnished with a bed, a chair near the head of the bed, and two dressers, one at the foot of the bed, serving as a stand for a large television, and a longer one against the wall opposite the foot of the bed, further from the bed and closer to the bedroom door. There were piles of clothing and blankets on the floor.
The defendant, who was wearing only a thin pair of pajama pants, asked for clothing, and Rawstron directed him to step out into the hallway. Given the defendant’s state of attire, Rawstron perceived no need to pat him down and did not do so. The defendant called out to Coleman to get his bail, and Rawstron explained that there would be no bail because he had a federal warrant for the defendant’s arrest. The defendant asked Rawstron what the warrant was for, and Rawstron explained that it was for a drug conspiracy. The defendant said, “Fuck, that means somebody’s talking about me.”
At about that time, Michaud, who had been notified that Rawstron and Pappas had located the defendant, entered the apartment. Brown and Madore had been called away, while Rooney remained on guard outside. Michaud observed Rawstron, Pappas, and the defendant standing in the hallway and the Coleman family gathered in the kitchen, which was off of the first door on the right side of the hallway. He positioned himself in the doorway between the hallway and the kitchen, enabling him to keep tabs on both the Coleman family and Rawstron, Pappas, and the defendant.
One of Rawstron’s aims in effectuating the defendant’s arrest was to elicit information about guns and drugs that he suspected might be present in the apartment. He told the defendant that agents were already speaking with Coleman and would be asking her to consent to a search. He asked if officers would find anything illegal. The defendant stared at Rawstron and appeared very nervous, then asked to go back into the bedroom to speak with him. Pappas cleared off a chair in the bedroom near the head of the bed, and Rawstron brought the defendant back in to the bedroom and directed him to sit there. Rawstron stood near the defendant, and Pappas stood across from them, near the longer dresser and the door.
The defendant asked Rawstron how much time he was looking at. Rawstron responded that it was between the judge and prosecutors, could be between five and 10 years, and would depend on cooperation, among other things. Rawstron asked the defendant about family dynamics, learning that the defendant considered Coleman’s youngest child his son, although he was not the child’s biological father. Rawstron remarked that he knew the defendant did not want to get Coleman in trouble for items in the apartment that might belong to him, noting that Coleman had several children and that the defendant helped take care of them.
The defendant looked at the edge of the longer dresser and said, “You’re going to want to open that drawer.” Either Rawstron or Pappas gestured to the left upper drawer, and the defendant nodded yes. Pappas opened the drawer and saw two large bundles of what appeared to be crack cocaine. Rawstron asked the defendant if it was real, and he nodded and said yes. Pappas asked if it was more than three ounces, and the defendant said, “No, not that much.”
Rawstron then reminded the defendant that he was with the ATF and asked if he was going to find a firearm in the bedroom. The defendant directed him to look underneath the bed. Pappas did so and saw what appeared to be a black holster. Rawstron asked if that was what the defendant was talking about. Receiving no response, he lifted up the mattress and discovered a firearm. Pappas gestured to Michaud, who by then was standing in the door from the hallway into the living room, where he had moved with the Coleman family, that a firearm had been found. Coleman did not witness this gesture.
Throughout their conversation with the defendant, neither Rawstron nor Pappas raised his voice, touched the defendant, or handcuffed him. The defendant continued to appear nervous and spoke in a very low voice, virtually a whisper, but was calm and polite and appeared to understand everything being said to him.
Rawstron asked the defendant several other questions to which he knew the answers, with respect to which the defendant was not forthcoming. Rawstron then told him that officers probably would have the chance to talk with him again in the future, informed him that he was under arrest pursuant to the warrant, handcuffed him for the first time that evening, and brought him to the living room, where he was allowed to say goodbye to Coleman and her children. Rawstron and Rooney then escorted the defendant to Rooney’s car, and Rooney eventually drove the defendant to the Cumberland County Jail.
During the period that Rawstron and Pappas were focused on the defendant, Michaud kept watch over the Coleman family. The kitchen had no table or other furniture, so the family was standing. Michaud engaged in casual conversation with Coleman. Shortly after he arrived, he offered, or one of the family asked, to move into the adjacent living room/dining room to watch a movie that was still playing on a computer screen there. After checking with Rawstron and Pappas, Michaud permitted the family to move. He continued to engage in casual, light conversation with Coleman as well as Saydi and Ravon. Coleman, who sat with Keen in her lap, was quiet but cordial. She did not object to Michaud’s presence or ask him to leave.
Before the defendant was escorted outside, one of the officers, presumably Rooney, asked Coleman for consent to bring in a dog and asked if anyone was afraid of dogs. Ravon said that she was. Coleman testified that she consented to the dog search.
After escorting the defendant outside, Rawstron returned to the apartment, spoke briefly with Michaud, then asked Coleman if he could speak with her alone in the kitchen. Once there, he asked whether, if he searched her bedroom, he would find anything illegal. She gave him a blank look. He asked if he could search the whole apartment, and she said yes. He asked if there was anything illegal in the bedroom, and she said nothing of which she was aware. He inquired, “What about the crack cocaine that I found in what appears to be your drawer?” She said, “He hides it wherever he wants to, and it’s not mine.” Rawstron asked her if she had ever owned or purchased a firearm, and she said no. He then informed her that the officers had found a firearm and asked if she had ever seen the defendant with it, and she responded that she had. Prior to the conversation with Rawstron, Coleman was unaware that officers had found or seized anything from her bedroom.
The tone of Rawstron’s conversation with Coleman was pleasant and polite. Neither Coleman nor her children objected to his presence, asked him to leave, or stated that he could not be there without a search warrant.
While Rawstron was speaking with Coleman, Rooney brought his dog into her bedroom. The dog alerted only to the cocaine that had already been discovered. After Rawstron finished conversing with Coleman, he and Michaud went to her bedroom. They discussed the possibility of conducting a further search, but decided against it in view of the fact that the dog had found nothing else in the bedroom and to avoid further disruption to the Coleman family.
Officers were in the Coleman apartment for a total of approximately an hour. They did not have a warrant to search the Coleman residence. At no point during their interaction with the defendant in the Coleman apartment on the evening of March 11 did any of the officers advise him of his Miranda rights. From the time police entered the Coleman apartment, they were in control of it. The occupants were under constant surveillance. If any of them, including Keen, had wished to use their own bathroom, he or she would have had to ask permission. Coleman felt that she had no control over the situation.
The defendant seeks to suppress all statements made, and all evidence gathered, on March 11, 2014, and all fruits of either on the basis that officers illegally entered the Coleman apartment that evening. See Defendant Young’s Reply Memorandum in Support of His Motion To Suppress Fruits of Search or Interrogation and All Post Arrest [sic] (“Suppress/Reply”) (ECF No. 153) at 1-4. Alternatively, he seeks to suppress all statements made on March 11, 2014, and all fruits thereof on the grounds that those statements were involuntary and/or were elicited while he was in custody without benefit of Miranda warnings, and all evidence seized that evening and all fruits thereof on the basis that officers’ search of the bedroom from which he was arrested violated his Fourth Amendment rights. See Motion To Suppress at 3-7.
The government bears the burden of proving (i) the lawfulness of warrantless entry into a residence, see, e.g., United States v. Romain, 393 F.3d 63, 68–69 (1st Cir. 2004), (ii) Miranda compliance, see, e.g., United States v. Barone, 968 F.2d 1378, 1384 (1st Cir. 1992), (iii) the voluntariness of a confession, see, e.g., United States v. Jackson, 918 F.2d 236, 241 (1st Cir. 1990), and (iv) the lawfulness of warrantless searches and seizures, see, e.g., United States v. Ramos-Morales, 981 F.2d 625, 628 (1st Cir. 1992).
The government concedes that all statements made by the defendant on March 11, 2014, apart from his initial exclamation, “Fuck, [conspiracy, ] that means people must be talking about me[, ]” were made in response to questioning or its functional equivalent, without the benefit of the administration of Miranda warnings. See Government’s Opposition to Defendant’s Motion To Suppress (“Suppress/Opposition”) (ECF No. 134) at 6. It represents that it does not intend to use those statements in its case-in-chief, although it reserves the right to use them on cross-examination to impeach the defendant or in rebuttal. See id. Accordingly, as to those statements, the court should grant the Motion To Suppress.
With respect to the defendant’s initial statement, and the evidence seized from the Coleman bedroom, I recommend for the reasons that ...