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United States v. Gardiner

United States District Court, D. Maine

March 22, 2017

UNITED STATES OF AMERICA
v.
JONATHAN GARDINER

          ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

          JOHN A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE.

         Charged 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 exclusionary rule.

         I. PROCEDURAL BACKGROUND

         On July 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).

         On 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).

         On 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 suppress. Id.

         Mr. 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 No. 62).

         II. PROPOSED FACTUAL FINDINGS

         On 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.

         When 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.

         Deputy 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.

         At 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. Id.

         As 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.

         Sergeant 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.

         Officers 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.

         Following 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.

         III. DISCUSSION

         As the 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. § 636(b)(1)(B).

         A. Factual Objections

         Mr. 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[1] 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.

         1. Individual Running from Rear of the House

         The 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 Amendment.” Id.

         Mr. 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 ...


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