United States District Court, D. Maine
ORDER AFFIRMING THE RECOMMENDED DECISION OF THE
A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE.
with two counts of possession of a firearm after having been
previously convicted of crimes punishable for a term of more
than one year of imprisonment, in violation of 18 U.S.C.
§ 922(g)(1), Jonathan Gardiner moves to suppress any and
all evidence seized from his residence on November 13, 2014
following a warrantless search. After a de novo
determination, the Court affirms the Magistrate Judge's
recommended decision and concludes that the scope of the
consent for the search was not limited and that it extended
to the attic, and in any event, the Magistrate Judge
correctly applied the inevitable discovery exception to the
13, 2016, a federal grand jury indicted Jonathan Gardiner
with two counts of possession of a firearm after having
previously been convicted of crimes punishable for a term of
more than one year of imprisonment, in violation of 18 U.S.C.
§ 922(g)(1). Indictment (ECF No. 3). Mr.
Gardiner pleaded not guilty to both counts on July 20, 2016.
Min. Entry (ECF No. 10).
September 19, 2016, Mr. Gardiner filed a motion to suppress
any and all evidence seized from his residence on November
13, 2014 following a warrantless search. Def.'s Mot.
to Suppress (ECF No. 30). The Government responded to
the Defendant's motion to suppress on October 4, 2016.
Gov't's Resp. to Def.'s Mot. to Suppress
(ECF No. 33).
December 7, 2016, the Magistrate Judge held a suppression
hearing, which was completed on December 12, 2016. Min.
Entry (ECF Nos. 37, 49); Tr. of Proceedings,
Mot. to Suppress (Dec. 7, 2016) (ECF No. 63)
(Suppression Tr.); Tr. of Proceedings,
Ctd. Mot. to Suppress & Initial Appearance (Dec.
12, 2016) (ECF No. 64) (Ctd. Suppression Tr.). On
January 6, 2017, the Magistrate Judge issued a recommended
decision in which he made twenty-two factual findings.
Recommended Decision on Mot. to Suppress (ECF No.
59) (Rec. Dec.). Based on those factual findings,
the Magistrate Judge concluded that the warrantless search
and seizure complied with the Fourth Amendment and
recommended that the Court deny Mr. Gardiner's motion to
Gardiner objected to the recommended decision on January 23,
2017. Def.'s Objs. to the Magistrate's
Recommended Order & Decision (ECF No. 61)
(Def.'s Objs.). The Government responded to Mr.
Gardiner's objections on January 27, 2017.
Gov't's Resp. to Def.'s Objs. to the
Magistrate's Recommended Order & Decision (ECF
PROPOSED FACTUAL FINDINGS
November 13, 2014, at approximately 6 p.m., two deputies of
the Penobscot County Sheriff's office (Deputies Allen and
Roy) responded to a call from a residence in Glenburn, Maine,
regarding the discharge of a weapon. Rec. Dec.
¶ 1. An individual at the residence informed the
officers that shots were fired outside a nearby house.
Id. ¶ 2. The house identified by the individual
was Mr. Gardiner's house located at 184 Lakeview Drive in
Glenburn (the property). Id. ¶ 3.
the officers arrived at the property, Deputy Allen knocked on
the front door. Id. ¶ 4. Angela Barry appeared
at the door. Id. Ms. Barry informed the officers
that she was Mr. Gardiner's girlfriend, and that she
resided on the property with Mr. Gardiner and their child.
Id. ¶ 5. She also informed the officers that
three other individuals lived on the property. Id.
Ms. Barry told the officers that Mr. Gardiner was not at
home, that he was at work, and that he worked at Burger King.
Id. ¶ 6. When the officers advised Ms. Barry
that they had received a complaint of shots fired outside the
residence, Ms. Barry said she had no knowledge of any shots
fired. Id. ¶ 7.
Allen asked Ms. Barry if the officers could search the
outside of the residence, to which Ms. Barry consented.
Id. ¶ 8. During the search, Deputy Allen
located a shooting target area in the back of the property.
Id. ¶ 9. The officers also found some shell
casings in the area. Id. Through dispatch, the
officers learned that both Ms. Barry and Mr. Gardiner were
convicted felons. Id. ¶ 10. They also learned
of an outstanding arrest warrant for Mr. Gardiner for the
failure to pay a fine. Id. When Deputy Allen
reported to Ms. Barry the results of the search, Ms. Barry
said she had no knowledge of the target area. Id.
¶ 11. The officers asked Ms. Barry for consent to search
the residence. Id. ¶ 12. Ms. Barry declined to
consent to the search. Id.
approximately the same time the officers were concluding
their conversation with Ms. Barry, a vehicle approached the
property but then changed direction and began to travel away
from the property. Id. ¶ 13. Deputy Allen
followed the vehicle, stopped the vehicle, and learned the
driver of the vehicle was Jennifer Marshall, one of the
individuals who lived on the property. Id. Deputy
Allen returned to the property with Ms. Marshall.
Deputy Allen was following Ms. Marshall's vehicle, Deputy
Roy spoke with Ms. Barry at the front of the house.
Id. ¶ 14. When he was speaking with Ms. Barry,
Deputy Roy heard a male voice from inside the house say
“don't let him in here - they can't come in
without a warrant.” Id. Ms. Barry said the
person was Forrest, one of the individuals who also lived on
the property. Id. Ms. Barry then closed the door.
Id. Deputy Roy then planned to wait for backup and
to secure the property. Id. ¶ 15. As he walked
to the back of the property, he observed an individual who
appeared to be running from the rear of the house.
Id. Deputy Roy enlisted Deputy Allen's
assistance in the pursuit of the individual, but the officers
were unable to apprehend the person. Id.
Sheehan arrived at the scene to assist. Id. ¶
16. When Sergeant Sheehan spoke to Ms. Barry and Ms.
Marshall, Ms. Barry told him that the person who was running
was Forrest, but she did not know his last name. Id.
When Ms. Barry and Ms. Marshall spoke with Sergeant Sheehan,
Ms. Barry and Ms. Marshall consented to the search of the
property. Id. ¶ 17. Contrary to Mr.
Gardiner's assertion, the scope of the consent was not
limited to a search for Mr. Gardiner. Id.
then searched the house. Id. ¶ 18. As part of
the search, Deputies Roy and Allen went into the bedroom Ms.
Barry shared with Mr. Gardiner. Id. While in the
bedroom, the officers observed some debris, including what
appeared to be pieces of insulation, on some of the items in
the closet. Id. A panel in the ceiling above the
closet appeared to have some insulation hanging from it.
Id. The officers were concerned that a person had
accessed the attic through the panel, and could be hiding in
the attic. Id. When the officers pointed out their
observations to Ms. Barry, and asked Ms. Barry whether anyone
was in the attic, she said no. Id. Deputy Roy
decided to look above the ceiling panel. Id. ¶
19. Ms. Barry, who could see the officers in the bedroom, did
not raise any objection to the scope of the search.
Id. Deputy Roy stood on a stool and looked into the
attic. Id. He saw what appeared to be a soft
firearms case, and removed the case from the attic.
Id. The case was camouflaged, and the shape and
weight of the content of the case were consistent with a gun.
Id. Deputy Roy opened the case, and found a
sawed-off shotgun inside the case. Id.
the search, Ms. Barry and Ms. Marshall signed forms entitled
“Permission to Search.” Id. ¶ 20.
According to the forms, Ms. Barry and Ms. Marshall authorized
a search of the “Residence (Bed Room) (common
areas).” Id. The forms also stated that Ms.
Barry and Ms. Marshall gave “permission to the 
officer, and any other law enforcement officer that he needs
to assist him, to conduct a search of the computer, CDs,
floppy discs, and zip discs.” Id. When
questioned by Deputy Allen about the results of the search,
Ms. Barry did not assert that her consent did not include
consent to search the attic or to search for firearms.
Id. ¶ 21. She did not raise any objection to
the scope of the search. Id. If Ms. Barry had not
consented to the search, the officers would have secured the
premises and requested a warrant to conduct a search of the
house. Id. ¶ 22.
Magistrate Judge's Recommended Decision is on a motion to
“suppress evidence in a criminal case, ” 28
U.S.C. § 636(b)(1)(A), this Court reviews the
Recommended Decision de novo under 28 U.S.C. §
Gardiner makes three objections to the facts found by the
Magistrate Judge. First, Mr. Gardiner objects to the
Magistrate Judge's finding in paragraph 15 that
“[Deputy Roy] observed an individual who appeared to be
running from the rear of the house.” Def.'s
Objs. at 1. Second, he objects to the finding in
paragraph 17 in so far as it suggests that “the scope
of the consent was not limited to a search for
Defendant.” Id. at 2. Third, Mr. Gardiner
objects to the finding in paragraph 18 in so far as it
suggests that “[w]hen the officers pointed out their
observations to Ms. Barry, and asked Ms. Barry whether anyone
was in the attic, she said no.” Id.
Individual Running from Rear of the House
Magistrate Judge stated in his recommended decision that
“[a]s [Deputy Roy] walked to the back of the property,
he observed an individual who appeared to be running from the
rear of the house.” Rec. Dec. ¶ 15. He
later discussed this finding and concluded that this fact,
among others, “would have been sufficient to establish
probable cause in support of a search warrant.”
Rec. Dec. at 8. The Magistrate Judge further stated
that he was “satisfied the officers would have secured
the property, requested and obtained a search warrant, and
conducted a search that would have revealed the gun
confiscated during the search, ” and therefore
concluded that the evidence “would have been discovered
by a means that does not offend the protections of the Fourth
Gardiner objects to this factual finding arguing that
“Deputy Roy's testimony did not contain facts
supporting this conclusion.” Def.'s Objs.
at 1. He goes on to say that the Court's finding,
“while perhaps inferred from that and other ...