United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO SUPPRESS
TORRESEN UNITED STATES DISTRICT JUDGE.
Stephen Kissh is charged with one count of knowingly and
intentionally possessing fentanyl and cocaine with the intent
to distribute in violation of 21 U.S.C. § 841(a)(1).
Before me is the Defendant's motion to suppress all
evidence obtained from the search of his person, vehicle, and
residence and all statements he made prior to his arrest.
(ECF No. 57.) I held a hearing on the Defendant's motion
on December 16, 2019. For the reasons set out below, I
DENY the motion to suppress.
October of 2018, Mr. Kissh was charged in State court with
one count of aggravated trafficking in scheduled drugs and
six counts of possession of scheduled drugs. Mr. Kissh was
released on October 12, 2018, after he posted $10, 000 in
bail. His conditions of release included refraining from
using or possessing illegal drugs and submitting to searches
of his person, vehicle, and residence at any time without
articulable suspicion or probable cause. Amended Bail Bond
and Amended Commitment Order with Conditions of Release
(“Conditions of Release Form”),
Gov't's Ex. 1.
January 2, 2019, Lieutenant Christopher Burbank of the South
Berwick Police Department received a call reporting that a
woman at Mr. Kissh's residence was under the influence of
drugs. The caller expressed concern about the woman's
well-being and asked the police to check on her safety
because she was recovering from substance use disorder and
she had recently relapsed and been hospitalized. The caller
identified the woman by name. Lieutenant Burbank knew that
Mr. Kissh was subject to bail conditions from his state
charges, and he confirmed the content of those conditions
through an electronic database search.
around 8:20 am, Lieutenant Burbank and Police Officer Josh
Hartley went to the address identified by the caller and
observed Mr. Kissh's trailer and green Dodge Caravan on
the property. Lieutenant Burbank knocked on the door of the
trailer, and a woman, who was not the woman mentioned by the
caller, answered. That woman informed the officers that there
were four other people inside the trailer. The officers asked
her to step outside. As she did so, Mr. Kissh appeared at the
trailer door. Lieutenant Burbank told Mr. Kissh that they
were there to do a bail check. When the officers entered the
trailer, they saw two men sleeping and another woman-the
woman identified by the caller-coming out of the bathroom.
Lieutenant Burbank observed that this woman appeared to be
under the influence of drugs but did not appear to be in any
immediate danger. All persons were asked to step outside,
which they did.
outside, Lieutenant Burbank asked Mr. Kissh whether he had
anything in his pockets, to which Mr. Kissh replied that he
did not. After being directed to do so, Mr. Kissh turned his
pockets inside out, and Lieutenant Burbank lifted Mr.
Kissh's shirt to check for a weapon. As this occurred,
Officer Hartley saw a small green plastic bag fall to the
ground from Mr. Kissh's person. He then observed four
small baggies on the ground near Mr. Kissh that appeared to
contain crack cocaine and heroin. The contents of these bags
were subsequently field tested and were presumptively
positive for the presence of cocaine and fentanyl.
Burbank directed Officer Hartley to search the trailer and
asked Mr. Kissh whether there was anything inside that would
violate the bail conditions. Mr. Kissh replied that he was
not sure because many people came through the place.
Lieutenant Burbank then asked what would be found during the
search, and Mr. Kissh replied, “I don't know,
probably cocaine.” Mr. Kissh also stated that there
were safes inside the trailer but explained that they were
not his and he did not know the codes. When Mr. Kissh stated
that he was cold, Lieutenant Burbank let him sit uncuffed in
the back of an unmarked police cruiser, which remained
unlocked. Mr. Kissh used his own cell phone to call his
lawyer and leave a voicemail. At some point, Mr. Kissh and
the four other individuals were permitted to go into Mr.
Kissh's mother's house, where Mr. Kissh fell asleep.
the search of the trailer, officers discovered a plastic bag
that contained approximately 26 grams of suspected cocaine,
drug paraphernalia,  and two locked safes nearby. The officers
also searched Mr. Kissh's Dodge Caravan, in which they
found a small green baggie and two razor blades. Following
the discovery of these items, Mr. Kissh was placed under
arrest, and officers seized Mr. Kissh's cell phone and
the two safes. Two days later, a State judge issued search
warrants authorizing searches of the phone and safes. From
the safes, the officers recovered quantities of fentanyl and
cocaine, various prescription pills, 45 tabs of suspected
LSD, edible marijuana products and marijuana distillates,
approximately $2, 458.00 in cash, drug paraphernalia, and a
wallet containing identification with Mr. Kissh's name.
They also recovered digital evidence from the cell phone.
Defendant was charged with one count of knowingly and
intentionally possessing fentanyl and cocaine with the intent
to distribute in violation of 21 U.S.C. § 841(a)(1). The
Defendant filed this motion to suppress all evidence seized
from the search of his person, vehicle, and residence and any
statements he made during the incident.
Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S.
Const. amend. IV. A “warrantless police entry into a
residence is presumptively unreasonable unless it falls
within the compass of one of a few well-delineated exceptions
to the Fourth Amendment's warrant requirement.”
Matalon v. Hynnes, 806 F.3d 627, 633 (1st Cir. 2015)
(internal quotations omitted). One such exception encompasses
searches conducted with consent. See United States v.
Jones, 523 F.3d 31, 37 (1st Cir. 2008). When consent is
used to circumvent the warrant requirement, the Government
bears the burden of proving “valid, voluntary
consent” by a preponderance of the evidence.
Pagán-González v. Moreno, 919 F.3d
582, 591 (1st Cir. 2019); United States v.
Vázquez, 724 F.3d 15, 18 (1st Cir. 2013); see
also Florida v. Royer, 460 U.S. 491, 497 (1983)
(“[W]here the validity of a search rests on consent,
the State has the burden of proving that the necessary
consent was obtained and that it was freely and voluntarily
given, a burden that is not satisfied by showing a mere
submission to a claim of lawful authority.”).