United States District Court, D. Maine
ORDER ON SECOND RECOMMENDED DECISION ON MOTIONS TO
LEVY U.S. DISTRICT JUDGE
Marquis Aiken and Joshua Bonnett are charged with possession
with intent to distribute a mixture or substance containing
cocaine base, and aiding and abetting such conduct, in
violation of 21 U.S.C.A. § 841(a)(1) (2015) and 18
U.S.C.A. § 2 (2015). ECF No. 1. They seek to suppress
all evidence obtained as a result of the search of Room 218
of a motel in Lewiston on November 7, 2014. ECF No. 49; ECF
No. 53. The United States Magistrate Judge recommended that
the motions to suppress be denied on the merits, ECF No. 142
at 1, to which the Government and the defendants have each
filed objections. ECF No. 150; ECF No. 151; ECF No. 152. I
have carefully reviewed and considered the Magistrate
Judge's recommended decision and the parties'
objections, and have made a de novo determination of
the matters objected to, in accordance with 28 U.S.C.A.
§ 636(b)(1) (2015). For the reasons discussed below, I
conclude that the defendants' motions to suppress should
STATEMENT OF FACTS
the following findings based upon my review of the
a.m. on November 7, 2014, Thomas Pappas, a Maine State
Trooper and agent with the state drug task force, received a
tip from a reliable informant that drug trafficking activity
was taking place at a motel in Lewiston, Maine. ECF No. 104
at 34:14-35:2. Pappas had been to the motel many times on
drug-related calls, and he knew it was common for
out-of-state drug dealers to stay there. Id. at
35:17-22. The tip from the informant indicated that a man and
woman in Room 216 had large bags of crack, cocaine, or
heroin. Id. at 36:13-19.
and Nicholas Gagnon, another drug task force agent, went to
the motel and learned the identity of the individual who was
registered as the occupant of Room 216. Id. at
37:14-20. That individual was known to Agents Pappas and
Gagnon as a drug and gun trafficker in the Lewiston, Maine
area. Id. at 37:24-38:3. The agents confirmed that
the individual was subject to bail conditions authorizing
random searches, and they decided to search him and his room
for evidence of bail violations. Id. at 39:6-15.
plain clothes, the agents knocked on the door of Room 216 at
approximately 9:00 a.m. Id. at 41:4-8, 42:3.
Receiving no response, they continued to knock, progressively
more loudly, for up to two minutes. Id. at 41:12-24.
As they knocked on the door to Room 216, the door of the
adjacent room, Room 218, opened slightly. Id. at
43:3-5. The agents detected the smell of burnt marijuana
emanating from Room 218. Id. at 43:13-14. They
observed that the security bar lock remained in place on the
door to Room 218. Id. at 43:8. Pappas did not
recognize the man at the door, and he told the man that he
wasn't there for him. Id. at 43:24-44:4.
agents continued to knock on the door of Room 216. Another
confidential informant known to the agents opened the door of
a room farther down the hallway, and told the agents that
there were drugs in Room 216. Id. at 45:6-14. The
agents did not hear any sounds coming from Room 216. As they
continued to pound on the door to Room 216, the door to Room
218 again opened, this time fully, and the agents again
detected the smell of burnt marijuana. Id. at
48:4-15; 101:3-7. Pappas saw defendant Joshua Bonnett
standing in the doorway of Room 218, with his left hand
behind the door. Id. at 49:1-4. Standing behind
Bonnett inside the room was defendant Marquis Aiken,
id. at 49:8-12, who was about five or ten feet from
where Pappas was standing, id. at 51:4-14. Pappas
and Gagnon did not recognize Bonnett, but they did recognize
Aiken, who they had arrested for possession or trafficking in
heroin in April, though the charge in that case had been
dismissed in July. Id. at 30:17, 129:23-130:6,
188:7-20. Aiken recognized the agents. Id. at
61:3-16. Aiken appeared to the agents to be very nervous.
Id . 55:23-56:2, 56:24-57:3.
identified himself as a police officer and told the men that
he smelled marijuana. Id. at 52:6-7, 53:3-4.
Aiken's presence in the motel room led Pappas to suspect
that “there was possibly more going on inside that room
besides marijuana.” Id. at 52:7-9. He wanted
to investigate “what[ was] going on in that room and as
to why Mr. Aiken was in that room.” Id. at
53:20-22. Bonnett remained standing at the door with his left
hand behind the door, although he eventually moved his hand,
dropping an unlit marijuana cigarette, and the agents could
see that Bonnett was not holding a weapon. Id. at
199:19-24, 220:24-221:1, 238:17-19, 239:5-8.
asked both men to step out of the room so that he could
conduct a further investigation. Id. at 53:16-22.
Aiken, who was dressed only in shorts, began to dress,
putting his clothes on and then his shoes. Id. at
107:18-24; 157:8-10. When the two men did not immediately
come out of the room, id. at 57:16-17, Pappas told
them he was there for an investigation, that he was not going
to leave, and that “either you guys come out or I'm
coming in.” Id. at 57:19-22. When neither man
came out of the room, Pappas and Gagnon entered through the
open door. Id. at 58:4-22. Neither Aiken nor Bonnett
had given the agents permission to enter the room.
Id. at 155:2.
encounter-from when the agents first observed Aiken in the
room to when the agents directed the men to exit-lasted less
than one minute. Id. at 55:4-7. Pappas testified
that he entered the room to make sure no one else was
present, and to prevent the defendants from fleeing or
destroying evidence. Id. at 63:16-17. The agents did
not have their weapons drawn or visible when they entered the
room. Id. at 53:8-13. When the agents entered the
motel room, they understood that they lacked probable cause
to arrest Bonnett or Aiken. Id. at 104:3-5,
inside the room, the agents conducted a security sweep.
Id. at 62:23-63:5. They did not observe any weapons
or other people inside the room, id. at 65:16-21,
but they did observe a bag containing a small quantity of
marijuana on one of the beds, as well as a digital scale
containing white powder on the top of a nightstand between
the two beds, id. at 68:8-12, 166:12-18.
point, Aiken started yelling nonsensically and Bonnett began
to cry. Id. at 62:13-20. Due to Aiken's
emotional response, Gagnon placed him in handcuffs.
Id. at 66:1. After being handcuffed, Aiken stopped
yelling. Id. at 208:11-15. The agents also conducted
pat down searches of both men for weapons, finding none.
Id. at 67:15-22. Bonnett sat on the floor near the
desk behind the door, as he had been directed. Id.
at 225:6-15, 206:16-18.
asked the two men if there were any other drugs inside the
room. Id. at 68:2-4. Pappas and Gagnon then pointed
to the drawer of the nightstand, and at least one of them
asked whether there was crack in the drawer, or how much
crack was in the drawer. Id. at 208:25-209:3. Aiken
responded by denying that there were other drugs in the room,
and he told the agents that they could look in all the
drawers. Id. at 71:2-5.
opened the top drawer of the nightstand and discovered a bag
containing what appeared to be approximately one-quarter to
one-half of a kilogram of cocaine base. Id. at
72:16-73:2. He then told the defendants that he intended to
obtain a search warrant. Id. at 72:16-18. Pappas
left the motel to prepare the warrant application, while
Gagnon stayed in the room. Id. at 78:4-9. Two
uniformed officers arrived who then brought Aiken and Bonnett
to the jail. Id. at 78:12-15. A search warrant was
approved, and a subsequent search of the room yielded, in
addition to the cocaine base, receipts for bus tickets for
Aiken, Bonnett, and another person in whose name the room was
registered, and a Pennsylvania driver's license in the
other person's name. Id. at 77:3-21.
Magistrate Judge filed a previous recommended decision in
this case, which recommended that the motions be denied on
the basis that the defendants lacked standing to challenge
the search. ECF No. 99 at 5-9. I declined to adopt this first
decision, and recommitted the matter to the Magistrate Judge
for a recommended decision on the merits. ECF No. 135 at 4.
After further argument, the Magistrate Judge filed a second
recommended decision. ECF No. 142. The Magistrate Judge found
that the agents had probable cause to search the motel room,
but that the Government had not established the existence of
exigent circumstances to justify the warrantless entry.
Id. at 2-7. The Magistrate Judge also found,
however, that Aiken had consented to the search of the room,
and that his consent rendered the search that ensued lawful.
Id. at 7-8.
Government and the defendants each filed objections to the
Magistrate Judge's second recommended decision. ECF No.
150; ECF No. 151; ECF No. 152. The defendants challenge the
Magistrate Judge's finding that Aiken's consent was
voluntary, and argue that the consent was, in any event,
fruit of the poisonous tree because it was a result of the
agents' illegal entry. See ECF No. 150; ECF No.
152. The Government objected to the Magistrate Judge's
conclusion that there were no exigent circumstances to
justify the warrantless entry. ECF No. 151 at 2-5.
argument on the objections was held before me on September
23, 2016. Under 28 U.S.C.A. § 636(b)(1), I have made a
de novo determination of the factual and legal issues raised
by the objections. See United States v. Lawlor, 406
F.3d 37, 40 (1st Cir. 2005).
search conducted without a warrant is presumed to be
unreasonable under the Fourth Amendment, “subject only
to a few specifically established and well-delineated
exceptions.” Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973) (quotation omitted). The Government
bears the burden of proving that an exception to the warrant
requirement applies. See United States v. Dickerson,
514 F.3d 60, 66 (1st Cir. 2008). Here, the Government argues
that two established exceptions apply: exigent circumstances
and consent. ECF No. 57 at 10, 12.
Government cites three reasons to support the application of
the exigent circumstances exception to the warrant
requirement in this case: first, the agents' belief that
Aiken and Bonnett would destroy evidence in the time it would
take to obtain a warrant; second, the agents' concern for
their own safety; and third, the risk that one or both of the
defendants would flee. ECF No. 151 at 3-5. The exigent
circumstances exception applies to situations in which there
is “a compelling necessity for immediate action as will
not brook the delay of obtaining a warrant.” United
States v. Almonte, 952 F.2d 20, 22 (1st Cir. 1991). Four
of the commonly recognized categories of exigent
circumstances include: “(1) risk to the lives or health
of the investigating officers; (2) risk that the evidence
sought will be destroyed; (3) risk that the person sought
will escape from the premises; and (4) ‘hot
pursuit' of a fleeing felon.” United States v.
Beaudoin, 362 F.3d 60, 66 (1st Cir. 2004), vacated
and remanded on other grounds sub nom., Champagne v. United
States, 543 U.S. 1102 (2005). Exigent circumstances
“turn upon the objective reasonableness of ad
hoc, fact-specific assessments contemporaneously made by
government agents in light of the developing circumstances at
the scene of the search.” McCabe v. Life-Line
Ambulance Serv., Inc., 77 F.3d 540, 545 (1st Cir. 1996)
(quoting Hegarty v. Somerset Cty., 53 F.3d 1367,
1378 (1st Cir. 1995)). For the exception to apply here, the
Government must show that the agents had probable cause to
believe that evidence of a crime was present in the motel
room, and that exigent circumstances supported the need for
an immediate, warrantless entry. See Welsh v.
Wisconsin, 466 U.S. 740, 741 (1984). Because the exigent
circumstances exception requires the existence of probable
cause, I consider that issue first.
cause exists where the facts and circumstances as to which
the police have reasonably trustworthy information are
sufficient to warrant a person of reasonable caution in the
belief that evidence of a crime will be found.”
Robinson v. Cook, 706 F.3d 25, 32 (1st Cir. 2013).
Here, the agents were not interested in investigating Room
218 based on the possible presence of a small quantity of
marijuana. They understood that at the time they entered the
motel room, they could have issued Aiken and Bonnett
summonses for possession of marijuana, but that they did not
have probable cause to arrest them for possessing marijuana.
ECF No. 104 at 153:23-154:5. Rather, they entered the room
because Aiken's presence led them to believe that, as
Pappas testified, “there was possibly more going
on” than marijuana possession and they wanted to
question Aiken. Id. at 52:6-9. Because the
“application of the exigent-circumstances exception in
the context of a home entry should rarely be sanctioned when
there is probable cause to believe that only a minor offense
. . . has been committed, ” Welsh, 466 U.S. at
753, the information the agents had regarding Bonnett and
Aiken's use or possession of marijuana was not, standing
alone, sufficient under the Fourth Amendment to justify their
warrantless entry, regardless of whether that information
would have been sufficient to obtain a search warrant if the
same had been presented to a judge.
Pappas informed Bonnett and Aiken that if they failed to exit
the motel room the agents would come in, the agents had
knowledge of the following:
•Their knocking on the door of Room 216 had elicited the
interest of an occupant or the occupants of Room 218, who
twice opened the room's door to observe the police. ECF
No. 104 at 42-44, 47-49.
• The agents smelled burnt marijuana coming from Room
218 when the door was partially opened, indicating that an
occupant or the occupants had recently smoked or were smoking
marijuana. Id. at 43.
• The door to Room 218 opened a second time and the
agents saw and recognized Aiken. Id. at 48-49.
• Aiken appeared to be extremely nervous as soon as he
made eye contact with and recognized Pappas. ...