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United States v. Leonard

United States District Court, D. Maine

October 30, 2017



          Nancy Torresen United States Chief District Judge

         Before me is Defendant Charles Leonard's motion to suppress the shotgun and ammunition seized during a warrantless search of his home. (ECF No. 15). Mr. Leonard argues that the officers' initial entry and search of his home was unjustified, which tainted the voluntariness of his later consent to search the home. The Government responds that the sweep was a permissible precautionary measure taken to ensure there was no one in the home who presented a threat to the officers. For the following reasons, the motion to suppress is GRANTED.


         The events leading up to the contested search began two weeks prior. On September 8, 2015, Det. William Tapley of the Lisbon Police Department received a call about an attempted purchase of a firearm at the Double Diamond Pawn Shop in Lisbon, Maine. The manager of the shop was Det. Tapley's former partner, and he told Det. Tapley that he suspected the two men who came into the shop, Charles Leonard and Harley Stanley, were felons.[1] The shop did not sell Mr. Leonard the .40 caliber pistol he selected because the address on his paperwork did not match the address on Mr. Leonard's identification.[2] See Hearing Tr. Sept. 15, 2017 at 05:13-18 (“Hearing Tr.”); Gov't's Ex. 3.

         Det. Tapley ran a criminal record check on both men and found that Mr. Stanley had a Class C felony for receiving stolen property and some outstanding warrants for unpaid fines. Hearing Tr. 44:06-18; Gov't's Ex. 1; Gov't's Opp'n 2 (ECF No. 17). Mr. Leonard had a misdemeanor criminal record. Hearing Tr. 63:07-18; Gov't's Ex. 2. Det. Tapley also reviewed the Double Diamond's security video footage and observed Mr. Stanley handling several handguns and putting money on the counter. Hearing Tr. 09:05-10:06. Det. Tapley suspected that Mr. Leonard had attempted to make a straw purchase of the firearm for Mr. Stanley. Hearing Tr. 07:04-15.

         On September 12, 2015, Det. Tapley recognized Mr. Leonard's truck and made a traffic stop. Mr. Leonard was driving, and Mr. Stanley was a passenger. Det. Tapley arrested Mr. Stanley without incident on the outstanding warrants. Hearing Tr. 11:14-12:03. Det. Tapley mentioned to Mr. Leonard that he wanted to ask him about the purchase of a firearm at the Double Diamond and that he would do so at a later date. Hearing Tr. 12:04-14.

         Det. Tapley shared the information he had developed with Christopher Durkin, a special agent with Bureau of Alcohol, Tobacco, Firearms, and Explosives. On September 23, 2015, SA Durkin and Det. Tapley went to Mr. Leonard's residence to see if Mr. Leonard would consent to an interview, often referred to as a “knock and talk” in police jargon. The officers had no arrest or search warrant.

         Mr. Leonard's home was a single-wide trailer near the end of a dirt road in a trailer park that was familiar to Det. Tapley from prior unrelated visits. Hearing Tr. 15:02-06. The east wall of the trailer was approximately 12 feet wide and faced the road. Hearing Tr. 24:04-14; Gov't's Ex. 31; Gov't's Ex. 35. The trailer's exterior doors were on the north and south walls, which were approximately 40 feet long. Hearing Tr. 15:07-10; Gov't's Ex. 35.

         When the officers arrived, they detected the strong smell of cultivated marijuana. Hearing Tr. 14:08-15. SA Durkin activated a digital recorder that he wore on his person. Durkin Recording (Gov't's Ex. 7). The officers approached the door on the south wall of the trailer and knocked. Durkin Recording 00:43-00:47. They heard noise like rustling or movement. Hearing Tr. 16:09-15, 77:12-18, 90:17-23. One of the officers can be heard on the recording saying casually “there might be a kid in there.” Durkin Recording 00:58. Det. Tapley suspected that someone might be exiting the other side of the trailer, and SA Durkin went around to check. Hearing Tr. 16:09-15. When he got around to the other side of the trailer, SA Durkin met Mr. Leonard coming out the back door. SA Durkin, speaking “casually” with Mr. Leonard, walked to the east side of the trailer with Mr. Leonard so that he could see the front entryway. Hearing Tr. 78:23-79:02.

         At approximately this time, Stevie Bean answered the front door. Ms. Bean lives in the trailer with Mr. Leonard and their two-year-old child, MC. Durkin Recording 03:54-04:00. Det. Tapley did not see marijuana from the door, but, based on the smell, he asked Ms. Bean how much marijuana was inside, and she said “a lot.” Hearing Tr. 15:25-16:01, 18:03-11.[3] After consulting briefly with SA Durkin, who was talking to Mr. Leonard at the east side of the trailer, Det. Tapley returned to Ms. Bean at the primary door, and she indicated that Mr. Stanley was inside. Hearing Tr. 18:13-19:05.

         Det. Tapley entered and walked through the trailer to find Mr. Stanley. He did not request backup or warn SA Durkin that he was going inside the home. Det. Tapley testified that he had no recollection of whether he drew his weapon when conducting his protective sweep. He testified that he “hoped” he had his weapon drawn as that would be proper protocol. Hearing Tr. 67:03-06, 68:11-13. He can be heard calling out “Harley!” on the recording. Durkin Recording 5:40.

         Approximately six minutes into the encounter, Det. Tapley rejoined SA Durkin, who was standing outside the trailer with Mr. Leonard, Ms. Bean, and MC.Det. Tapley asked SA Durkin whether he saw Mr. Stanley come out the back and surmised that Mr. Stanley may still be in the trailer. Durkin Recording 06:30-06:36. SA Durkin said he could “hear him in there.” Durkin Recording 06:37. Without asking for assistance, Det. Tapley returned to searching and calling out “Harley come out. Harley! Where are ya?” Durkin Recording 06:40. SA Durkin meanwhile resumed questioning Mr. Leonard about the straw purchase, while MC threw clumps of dirt at SA Durkin. Durkin Recording 07:10.

         Approximately eight minutes into the encounter, Det. Tapley came outside of the trailer and said “he apparently went out the window.” Durkin Recording 08:12. He instructed Ms. Bean, “[c]ome with me and show me where he might be hiding.” Durkin Recording 08:18. Det. Tapley then took Ms. Bean back into the trailer. Once inside the trailer, Det. Tapley read the Miranda warnings to Ms. Bean and asked her questions about the marijuana which was drying throughout the trailer. Det. Tapley asked if Ms. Bean would consent to a search of the house, and he called Officer Richard St. Amant to deliver a consent to search form.

         Approximately 11 minutes into the encounter, Officer St. Amant arrived. He greeted SA Durkin and asked him how he was doing. SA Durkin replied: “Been better. Bill's inside there. I don't know what's going on.” Durkin Recording 11:35. Officer St. Amant then carried the unsigned consent-to-search forms into the trailer. While still standing inside the trailer, Det. Tapley continued to speak with Ms. Bean about the marijuana, informed her that he could get a search warrant based on what he had seen so far, and read through the consent form. Hearing Tr. 31:20-32:14. Ms. Bean signed. Gov't's Ex. 9.

         A few minutes later, SA Durkin joined the other officers, at which point all three officers were inside the trailer without warrants or Mr. Leonard's consent. Durkin Recording 13:43. Officer St. Amant told SA Durkin that Mr. Stanley was “gone, ” and SA Durkin confirmed that the police did not “have anything on him anyways.” Durkin Recording 14:04-14:12. Det. Tapley then asked Officer St. Amant “mind staying out here, Rich?” Durkin Recording 14:47. And to SA Durkin, Det. Tapley asked:

WT: You have your recorder on?
CD: I do. I'm done talking to him he's denying all of it saying there's no way he's buying a gun for anybody else.
WT: Ok.
CD: You want to talk to me about something else?
WT: Yea.
CD: End of interview.

         Durkin Recording Tr. 12 (ECF No. 22-1); Durkin Recording 14:47-14:59. SA Durkin then turned off his recording device. SA Durkin testified that he turned his recorder off because he was finished with the investigation into the firearm and saw no reason to record the rest of the encounter. Hearing Tr. 96:10-25.

         SA Durkin said he restarted the recording again after walking from the trailer to car. Hearing Tr. 97:03-15. When the recording began again, Det. Tapley was reading Mr. Leonard the Miranda warnings outside of the trailer. Mr. Leonard said he did not want to answer questions. Durkin Recording 16:00-16:13. Det. Tapley then told Mr. Leonard that he knew Mr. Leonard had a four-wheeler, that marijuana was stolen in Lisbon by someone with a four-wheeler, and that Ms. Bean said the marijuana in the house was stolen.[4] Det. Tapley informed Mr. Leonard that Ms. Bean already consented to a search and that “we obviously know there's marijuana here.” Durkin Recording 16:50-17:05. Det. Tapley told Mr. Leonard he could consent to a search of his home or the police would get a search warrant. Durkin Recording 17:05-17:10. Mr. Leonard asked what the search would be for, and Det. Tapley responded “to collect all the weed.” Durkin Recording 17:10-17:15. SA Durkin told Mr. Leonard that it was it was “highly likely” that they would get a warrant so the process was “just a formality, ” “paperwork.” Durkin Recording 17:25-17:37. Det. Tapley chimed in, “So most likely we ...

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