U.S. v. Casellas, et al.

2016 DNH 039

• Court: District Court, D. New Hampshire
• Decided: February 25, 2016
• Docket: Criminal No. 15-cr-178-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 15-cr-178-LM Opinion No. 2016 DNH 039 Jose Casellas Zakee Stuart-Holt Jeannette Hardy

O R D E R

On June 22, 2015, Jeannette Hardy was assaulted by an

unknown man as she attempted to enter her apartment building and

then was shot by him as she escaped and ran outside. In the

aftermath of the shooting, Hardy made statements to law

enforcement officers and signed a consent form, authorizing them

to search her apartment. While searching Hardy’s apartment,

which she leased with Zakee Stuart-Holt, officers discovered a

large amount of what they believed to be heroin. Law

enforcement officers subsequently executed a second search of

the apartment after obtaining a warrant. Hardy and Stuart-Holt

have been charged with conspiracy to distribute and possess with

intent to distribute controlled substances in violation of 21

U.S.C. § 841(a). Both Stuart-Holt and Hardy move to suppress

evidence seized during the searches of the apartment. Hardy

also moves to suppress certain statements she made following the

shooting. On January 14 and 15, 2016, the court held an evidentiary

hearing on the motions to suppress. At the hearing, the

following Manchester Police Department (“MPD”) police officers

testified: Sergeants Michael Bergeron and Robert Bellenoit;

Detectives Todd Leshney, Andrew Fleming, Derek Sullivan, Thomas

DuBois, and Robert Tremblay; and Patrolman Shaun McKennedy.

Hardy and Stuart-Holt also called two medical professionals: Dr.

Michael Edwards, an emergency room physician, and Ann

Berthiaume, a social work case manager. The court held the

record open for a week so that Hardy and Stuart-Holt could

depose Dr. Robert Parisien, a physician who performed surgery on

Hardy’s hand. Hardy and Stuart-Holt submitted a copy of Dr.

Parisien’s deposition to the court. The court heard oral

argument on the motions to suppress on January 22, 2016.

FACTS

I. The Shooting

On June 22, 2015, Jeannette Hardy left her apartment

building through the front door to walk her dog. During the

walk, Hardy spoke on the phone with Zakee Stuart-Holt, who was

incarcerated at the Merrimack County House of Corrections

(“MCHC”). While Hardy was out on her walk, an unknown man

entered the front door of her apartment building. When Hardy

returned and stepped through the door to her building, the

2 unknown man attacked her. Hardy was still on the phone with

Stuart-Holt at the time. As Hardy attempted to flee, her

attacker shot her in the hand. Hardy then ran down the street

to a convenience store. A video surveillance camera that

captured the attack shows a timestamp of 9:07 p.m.

At about 9:08 p.m., the MPD received several 911 calls

reporting a gunshot and a woman screaming. The MPD dispatch log

shows that police officers arrived at Hardy’s apartment building

roughly two minutes later. Emergency Medical Services (“EMS”)

located Hardy at the convenience store. At 9:22 p.m., EMS

transported Hardy to Catholic Medical Center in Manchester, New

Hampshire by ambulance. Patrolman Shaun McKennedy accompanied

Hardy to the hospital.

Shortly after the shooting, officers contacted Hardy’s

landlord, who informed them that Hardy lived in the second-floor

unit of a two-unit apartment building. The first-floor unit was

unoccupied. While standing outside the building in the

aftermath of the shooting, an officer reported seeing movement

in a window of the unoccupied first-floor unit.

At about 11:42 p.m., after conducting witness interviews

and an extensive investigation outside of Hardy’s apartment

building, officers entered the building to look for Hardy’s

3 attacker.1 They began by checking the empty first-floor

apartment and common attic and basement. During the protective

sweep, officers used a dog that was trained to detect both

people and narcotics. While clearing the attic, the dog alerted

to a box for a Keurig coffee maker. The officer handling the

dog, Chad Tennis, noticed a strong odor of marijuana coming from

the box. Tennis left the box in place. The officers then

entered Hardy’s second-floor apartment and completed the search

of the building. No person was found in the building.2

II. Officers Obtain Consent to Search Hardy’s Apartment

In the meantime, Hardy was in the emergency room at the

hospital. Hardy arrived at the hospital at 9:37 p.m. Dr.

Michael Edwards examined Hardy at 9:45 p.m. and described her as

“emotionally upset.” At that time, a nurse noted that Hardy was

“anxious” and “in distress due to pain,” but also found her

“cooperative [and] alert.” Hardy described her pain as sharp,

constant, and “10” on a scale of 1 to 10. Hardy’s medical

1The parties refer to the officers’ search of the apartment building to look for Hardy’s attacker as the “protective sweep.” The court will use that phrase as well. 2Hardy’s and Stuart-Holt’s motions to suppress challenge the seizure of the Keurig box and the legality of the protective sweep. The government states that it does not intend to introduce the Keurig box or its contents at trial. In light of the government’s position, Hardy and Stuart-Holt agree that the seizure of the Keurig box and the legality of the protective sweep are no longer at issue.

4 record shows that, at 9:50 p.m., the hospital gave her morphine

sulfate, which is a pain medication. Side effects of that

medication include sleepiness and confusion.

At about 9:45 p.m., two officers from the MPD violent

crimes unit, Sergeant Michael Bergeron and Detective Todd

Leshney, joined McKennedy at the hospital. When Bergeron and

Leshney arrived, Hardy was in the emergency room sitting upright

in a hospital bed, with blood on her clothes, and with her hand

bandaged. McKennedy described Hardy as “handling [the

situation] very well.” Although Hardy was visibly upset and in

pain, McKennedy recalled that she was easy to speak to and could

recollect what had happened.

Hardy told Leshney and Bergeron that the attacker was

inside the common hallway of her apartment building when she

returned from her walk, and that she had a surveillance system

that would have captured the attack. Hardy informed the

officers that the footage was stored on a digital video recorder

(“DVR”) located on a television stand in a bedroom of her

apartment. During this conversation, Bergeron was “struck” by

how “calm” Hardy appeared. Leshney informed Hardy that officers

at her apartment building were preparing to search the building

for her attacker.

About 15-20 minutes after he arrived at the hospital,

Leshney took a telephone call at the nurses’ station from

5 someone claiming to be Hardy’s husband. Leshney asked the

caller for his name several times before the caller hung up.

Several minutes later, MCHC Sergeant Matthew Lamanuzzi called

the nurses’ station. Lamanuzzi told Leshney that inmate Stuart-

Holt was concerned for Hardy’s welfare because Stuart-Holt was

on the phone with Hardy when she was shot. Leshney asked

Lamanuzzi to have Stuart-Holt call him back on his cell phone.

Leshney testified that he wanted to speak with Stuart-Holt to

gather information about the shooting and the surveillance

system.

After speaking with Lamanuzzi, Leshney and Bergeron asked

Hardy for consent to search her apartment for evidence of the

shooting and to collect the DVR. Leshney presented Hardy with a

standard MPD consent form that authorized officers to collect

“any letters, papers, materials or other property which they may

desire.” Hardy asked Leshney about the meaning of that phrase,

and he told Hardy that their search of the apartment would focus

on looking for evidence of the shooting and collecting the DVR.

Leshney also explained that if Hardy did not consent to a search

of her apartment, he would apply for a warrant. Leshney

explained that a judge might not approve the application, but if

the judge did, the MPD would search her apartment pursuant to

the warrant. Hardy then signed the consent form at

approximately 10:15 p.m.

6 At 10:18 p.m., Dr. Edwards described Hardy as “oriented to

person, place and time,” which means that she knew what time it

was, who she was, and where she was. In those same notes, Dr.

Edwards indicated that Hardy’s affect was “anxious,” her

judgment was “normal,” her remote and recent memory were

“normal,” but her concentration was “poor.”

At some point after Hardy signed the consent form, Stuart-

Holt called Leshney’s cell phone and asked to speak with Hardy.

Leshney refused to allow Stuart-Holt to speak with Hardy

because, as Leshney explained, he had a policy of prohibiting

witnesses from speaking to one another during an investigation.

Since Hardy was on the telephone with Stuart-Holt during the

shooting, he did not want to permit them to speak to each other

while the investigation was underway. During the telephone

call, Leshney asked Stuart-Holt about the DVR. Stuart-Holt

informed Leshney that the surveillance footage was stored off-

site and could be accessed remotely. After speaking with

Stuart-Holt, Leshney determined that Stuart-Holt did not have

useful information about the surveillance system because the

information Stuart-Holt gave him directly contradicted specific

and credible information he had obtained from Hardy.

Additionally, Stuart-Holt did not know the login and password to

access the system remotely and could not identify who had set up

the system.

7 Leshney told Stuart-Holt that the police intended to enter

the apartment to collect the DVR pursuant to Hardy’s consent to

search. Stuart-Holt said nothing to indicate that he objected

to the police entering the apartment.3

After Leshney spoke with Stuart-Holt, Hardy’s landlord, Art

Gatzoulis, who is also a criminal defense lawyer, arrived at the

hospital and asked to speak with Hardy. Gatzoulis informed the

officers that he was there in his capacity as Hardy’s landlord

and not as her attorney. After checking with medical staff, the

detectives allowed Gatzoulis to meet privately with Hardy.

After Hardy met with Gatzoulis, Leshney asked both Hardy

and Gatzoulis if they were “all set” with the consent to search.

Hardy replied in the affirmative. Gatzoulis made a noncommittal

gesture which Leshney interpreted as “I’m not her lawyer, don’t

be asking me that.” McKennedy, Leshney, and Bergeron left the

hospital at approximately midnight.

3 Stuart-Holt submitted an affidavit which contradicts Leshney’s version of the telephone call. Stuart-Holt asserts that Leshney told him that he could not speak with Hardy because she was “too drugged up to speak with [him].” In response, Stuart-Holt claims he stated: “If that’s the case, I don’t think it’s appropriate for her to sign or consent to anything.” The court credits Leshney’s account of his conversation with Stuart- Holt.

8 According to medical records, shortly after midnight, Dr.

Suresh Pothuru evaluated Hardy for withdrawal from heroin. Dr.

Pothuru wrote that Hardy was “awake, alert, oriented,” and

answered all of his questions “appropriately.” He recommended

that medical staff monitor Hardy for signs or symptoms of

withdrawal and listed certain medications that could be

administered as needed.

Hardy remained at the hospital overnight on June 22,

awaiting surgery on her hand the next day. No officers remained

with Hardy overnight on June 22.

III. The Search Pursuant to Hardy’s Consent

At 2:16 a.m. on June 23, 2015, Leshney and Bergeron, along

with several other members of the MPD, entered Hardy’s apartment

to search for evidence of the shooting and to collect the DVR

pursuant to Hardy’s consent. While searching, the officers

noticed “wads” of what appeared to be twenty- and hundred-dollar

bills on a table in the living room, in a candle holder, and

inside an open cardboard box. Per MPD policy, the officers

called a supervisor to oversee the process of counting and then

securing the cash they located in Hardy’s apartment. The

supervisor arrived at 2:31 a.m.

9 Officers also located the Keurig box to which the dog

alerted during the protective sweep.4 They opened the box and

found, among other items, marijuana, vials containing

testosterone, hypodermic needles, scales, suboxone, and a pipe.

During the consent search, Detective Andrew Fleming was

assigned to collect, bag, and label evidence. Fleming collected

the contents of the Keurig box. He also located and collected

the DVR on a TV stand in a bedroom, precisely where Hardy had

described its location. Additionally, Fleming collected several

items from the top of the TV stand, some of which were

consistent with personal use of narcotics (i.e., orange and pink

pills that he believed to be narcotics), and noted that the TV

stand was covered with an off-white powdery substance.

Fleming testified that, after the officers finished

searching the apartment, he made one last “sweep” of the

apartment, looking for gloves or other equipment the officers

may have left behind while collecting evidence. During his

sweep of the room where he had located the DVR, Fleming noticed

an open gray plastic shopping bag on the floor a few feet from

4 Bergeron stated that the officers who had executed the protective sweep told the officers executing the consent search that a dog had alerted to the box that smelled strongly of marijuana in the attic. Bergeron testified that the officers secured and inventoried the items in the box during the consent search.

10 the TV stand.5 Standing above the shopping bag, Fleming could

see that it contained Ziploc bags. At least one of the Ziploc

bags was open and “sticking out” of the shopping bag. Inside

the open Ziploc bag, Fleming could see off-white chalk-like

objects that “matched the same color” as the powder “residue” he

had observed on the TV stand.6 Once he made the connection

between the off-white residue on the TV stand and the chalk-like

items he observed in the shopping bag, he picked up the bag to

get a closer look and then exclaimed “uh-oh” -- as he realized

that “this was a lot of drugs . . . .”

Fleming thought the drugs could provide a motive for the

shooting. The officers field-tested the contents of the bag and

the result was “presumptive positive” for heroin.7 Having found

what they believed to be a large quantity of heroin, the

5In his affidavit, Leshney states that Fleming noticed the bag while collecting the DVR. On cross-examination, however, Leshney stated that he did not “recall exactly how much time after the DVR was disconnected that Detective Fleming made that discovery.” The court credits Fleming’s testimony on the timing. 6Because the chalk-like objects were wrapped in several layers of opaque wax paper, Hardy and Stuart-Holt argued that Fleming could not have seen them from where he was standing. Fleming credibly testified that he did, in fact, see them from where he was standing, and photographs, see Exs. 19e and 19g, corroborate that the chalk-like objects could be seen through the opaque wax paper. 7 As it turned out, the substance was fentanyl, a controlled drug with properties similar to those of heroin.

11 officers stopped searching Hardy’s apartment and sought a search

warrant.

IV. Hardy’s June 23 Morning Statement

On June 23, between 8:00 a.m. and 10:00 a.m., detectives

Derek Sullivan and Thomas DuBois, who specialize in narcotics

investigations, went to the hospital to interview Hardy.

Sullivan and DuBois wanted to investigate Hardy’s source of

supply because of the large quantity of drugs the officers found

during the consent search. When the detectives arrived, Hardy

was sleeping, but she woke up when the detectives entered the

room. Prior to the detectives’ arrival, a nurse’s note

indicated that Hardy was “anxious” and “overwhelmed.”

Sullivan told Hardy that “if she was resting [they] would

come back another time.” He also explained that Hardy was not

under arrest, but that detectives were applying for a warrant to

search her apartment because they found what they suspected to

be heroin while performing the consent search. Sullivan further

explained that Hardy “would likely be charged with whatever

drugs were found pursuant to that warrant.” He told Hardy that

if she assisted with the investigation, he could recommend

leniency to the prosecutor. At some point, Hardy said “maybe I

should speak to an attorney.” Sullivan testified that he told

Hardy that speaking with a lawyer was “an option” and reiterated

12 that Hardy was not under arrest. DuBois testified that they

told Hardy that it was “certainly her right” to speak with a

lawyer but that she “did not require one at that point.” Hardy

agreed to talk to Sullivan and DuBois, and she then made

incriminating statements.

Both Sullivan and DuBois testified that throughout their

interaction with Hardy, she was alert and responded to their

questions intelligently. Sullivan testified that Hardy did not

appear to be in extreme pain or visibly ill. He described Hardy

as “relaxed” and their interaction with her as “mellow.” DuBois

described their interaction with Hardy as “cordial.” The

detectives were wearing plain clothes and did not restrict

Hardy’s movement, although at one point they closed the door to

her hospital room. Hardy’s roommate was in the room for some

portion of the interview. At around noon, Hardy appeared tired,

so Sullivan and DuBois left the hospital.

After the detectives left, the medical records indicate

that Hardy was prescribed klonopin “to help with anxiety.” A

nursing note also indicates that Hardy was “anxious,

tearful/crying, restless, [and] overwhelmed.” Earlier that

morning, sometime before 11:38 a.m., Hardy met with Ann

Berthiaume. Hardy told Berthiaume that she had a ten-gram-per-

day heroin addiction and that she was experiencing withdrawal

symptoms. Berthiaume noted that, at that time, Hardy’s thoughts

13 were “normal,” and her speech was “normal” and “coherent.”

Berthiaume testified that Hardy was anxious, but was “otherwise

. . . able to communicate effectively.”

V. Search Pursuant to a Warrant

The police obtained a warrant to search Hardy’s apartment

at approximately 2:00 p.m. on June 23, 2015.8 The warrant was

based in large part on information the police obtained during

the consent search. Sullivan and DuBois briefly participated in

the warrant search, during which they located cash, and what

they believed to be heroin. During the warrant search, officers

also seized a safe and records associated with a Bank of America

safety deposit box.

VI. Hardy’s June 23 Afternoon Statement

At about 2:30 p.m., Sullivan and DuBois returned to the

hospital. They told Hardy about the cash and suspected heroin.

The detectives again informed Hardy that she was not under

arrest, and again Hardy agreed to speak with them and made

During the warrant search, Sullivan and DuBois recovered a

phone that Hardy had described to them earlier that morning.

They hoped to arrange for a delivery of drugs. Sullivan

8 The court will refer to the search of Hardy’s apartment pursuant to the warrant as the “warrant search.”

14 testified that their interaction with Hardy was “calm” and

“cordial.” DuBois testified that their interaction was

“pleasant” and that he was “joking” with Hardy. The detectives

stayed at the hospital for approximately 90 minutes. Some

portion of that time was spent waiting for officers at Hardy’s

apartment to bring another cell phone to the hospital because

Sullivan and DuBois had not retrieved the correct one.

Sometime before 4:00 p.m., medical staff informed the

detectives that Hardy’s surgery was approaching, and they

prepared to leave. On their way out, the detectives contacted

their supervisor who, for the first time, informed them that an

officer would stay with Hardy at the hospital and would arrest

her if she tried to leave. The detectives informed Hardy of the

change in circumstances and told her that before they spoke with

her again, they would first advise her of her Miranda rights.

See Miranda v. Arizona, 384 U.S. 436 (1966). Then, as the

detectives were about to leave, a nurse asked DuBois for help

wheeling Hardy to surgery. Dubois testified that he and Hardy

joked while he helped the nurse transport her. Sullivan took

pictures of the scene with his cell phone. Sullivan and DuBois

then left the hospital.

Shortly before Hardy’s surgery, Dr. Parisien dictated the

following note:

15 [Hardy] was found in her apartment with a large volume of cash and drugs and reported a gunshot wound to her hand . . . . The police have been involved and tell me that she is under arrest. . . . The police are here and they will go into the operating room with her.9

Dr. Parisien began Hardy’s surgery at 4:00 p.m. After her

surgery, at 4:44 p.m., medical records indicate that Hardy was

“alert and oriented” and “[c]alm and cooperative,” but that she

complained of “significant anxiety regarding [her] current

situation and withdrawal symptoms.” A uniformed MPD officer

remained outside Hardy’s hospital room throughout the night.

VII. Hardy’s Waiver of Miranda Rights and Statements at the MPD on June 24, 2015

On June 24, Sullivan and Dubois arrived at the hospital at

9:30 a.m. They remained in Hardy’s hospital room as medical

staff gave Hardy discharge instructions and paperwork. Hardy’s

discharge instructions included a prescription for pain

medication and instructions to ice and elevate her hand. Prior

to the detectives’ arrival, medical staff noted that Hardy was

experiencing acute, continuous, throbbing pain in her right

9 There are conflicting timestamps on the note. One places the note at 1:04 a.m. on June 23, the other at 10:30 p.m. on June 23. Dr. Parisien testified at his deposition that he did not know how the time stamps worked at Catholic Medical Center and that he had no memory of when he dictated the note. See Ex. S. In light of the testimony that Hardy was placed in custody just before she was taken into surgery at about 4:00 p.m. on June 23, the court does not credit either timestamp on the note, and finds that Dr. Parisien dictated the note shortly before Hardy’s surgery.

16 hand. Because Hardy’s clothes had been taken as evidence, the

detectives requested that hospital staff give Hardy scrubs to

wear instead of being released in a hospital gown. Hardy was

discharged at 10:35 a.m.

The detectives then transported Hardy to the MPD. During

the drive, Hardy was not handcuffed and sat in the front seat of

Sullivan’s car. On the way, Hardy asked the detectives to fill

her prescription for pain medication, but the detectives

declined because of a department policy prohibiting officers

from administering medication.

Once at the MPD, Sullivan and DuBois reviewed Hardy’s

Miranda rights with her. Sullivan asked Hardy if she had any

questions and Hardy did not. Both Sullivan and DuBois testified

that Hardy appeared to understand the form. DuBois testified

that Hardy did not appear to be under the influence of any

medication. Hardy then signed a Miranda waiver form at 10:58

a.m.

Sullivan and DuBois debriefed Hardy until about 12:40 p.m.

During her debriefing, Hardy made incriminating statements.

Hardy then started making calls to arrange for a delivery of

drugs. Hardy spent most of her time at the MPD that afternoon

sitting in an interview room and waiting as she and the

detectives attempted unsuccessfully to arrange controlled drug

deliveries. Hardy remained at the MPD until 8:45 p.m.

17 During the day, Sullivan and DuBois offered Hardy food, but

she declined. They also took Hardy outside for cigarette

breaks. The detectives asked Hardy about her pain throughout

the day and Hardy told them it was “not too bad.” Sullivan

testified that their interaction was “very relaxed.” Sullivan

also testified that, through his work as a drug investigator, he

had seen people go through withdrawal and Hardy did not appear

to have symptoms of withdrawal.

DISCUSSION

Hardy filed two motions to suppress. In the first (doc.

no. 19), she seeks to suppress the statements she made at the

hospital on June 23, 2015, and those she made at the MPD on June

24, 2015. In the second (doc. no. 20), Hardy seeks to suppress

evidence seized during the searches of her apartment.

Stuart-Holt’s motion (doc. no. 22) also seeks to suppress the

evidence seized during the searches of Hardy’s apartment.10 The

government objects to all three motions (doc. no. 26).

The court first examines the motions to suppress the

evidence seized during the searches of Hardy’s apartment and

then turns to the motion to suppress her statements.

10The government concedes that Stuart-Holt, as a co-tenant, has standing to move to suppress the evidence seized during the searches of the apartment.

18 I. The Consent and Warrant Searches

Hardy and Stuart-Holt argue that both the consent search

and warrant search were unlawful and, therefore, evidence seized

from each of the searches must be suppressed.11 The court

addresses each search separately.

A. The Consent Search

Hardy contends that evidence seized during the consent

search should be suppressed because she did not give valid

consent to the search and, even if she did, the search exceeded

the scope of her consent. Stuart-Holt adopts Hardy’s arguments,

and also contends that the consent search was unlawful because

the MPD failed to obtain his consent before conducting it.

1. Validity of Consent

“Consent is an ‘established exception[ ]’ to the Fourth

Amendment warrant requirement.” United States v. Casellas-Toro,

807 F.3d 380, 391 (1st Cir. 2015) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973)). “In order for consent to

be valid, the Government must prove by a preponderance of the

evidence that the consenting party gave it freely and

11Their motions also challenge the legality of the protective sweep, which preceded the consent and warrant searches. In light of the government’s decision not to introduce the Keurig box or its contents at trial, however, Hardy and Stuart-Holt concede that the legality of the protective sweep is a moot question.

19 voluntarily.” United States v. Jones, 523 F.3d 31, 37 (1st Cir.

2008). “Consent is voluntary if it is the product of an

essentially free and unconstrained choice.” United States v.

Chhien, 266 F.3d 1, 7 (1st Cir. 2001) (internal quotation marks

omitted). “To determine whether consent was voluntary, [the

court] examine[s] the totality of the circumstances, which may

include consideration of the defendant’s ‘age, education,

experience, knowledge of the right to withhold consent, and

evidence of coercive tactics.’” United States v. Hinkley, 803

F.3d 85, 91 (1st Cir. 2015) (quoting United States v. Chaney,

647 F.3d 401, 407 (1st Cir. 2011) (further citations omitted)).

Hardy argues that her consent was not valid because the

police obtained it through coercion. Hardy contends that: (1)

she consented to the search only because the officers told her

they would get a warrant if she did not consent, even though the

officers lacked probable cause to get a warrant; (2) the

officers misrepresented the purpose of seeking consent to search

her apartment, telling her that they were investigating the

shooting when they were actually investigating drug crimes; and

(3) her physical and mental condition at the hospital was so

limited that she was unable to provide knowing and voluntary

consent. None of Hardy’s contentions is supported by the

evidence.

20 a. Officer’s Statement to Hardy About Securing a Search Warrant

Hardy asserts that her consent to search was coerced

because she gave consent only after Leshney stated that the

officers would get a search warrant if she did not consent,

which Hardy contends was a false statement. “[C]onsent to a

search is invalid if given only because of an officer’s

knowingly false assurance that there will soon be a lawful

search anyway.” United States v. Vázquez, 724 F.3d 15, 22 (1st

Cir. 2013). On the other hand, “consent to a search is not

invalid merely because it is secured by an officer’s accurate

assurance that there will soon be a lawful search anyway.” Id.

“[A] law enforcement officer’s application for a search

warrant must demonstrate probable cause to believe that a crime

has been committed” and that “enumerated evidence of the offense

will be found at the place to be searched.” United States v.

Cordero-Rosario, 786 F.3d 64, 69 (1st Cir. 2015) (internal

quotation marks omitted). “For probable cause to exist, the

facts presented to the magistrate need only warrant a man of

reasonable caution to believe that evidence of a crime will be

found.” United States v. Soto, 799 F.3d 68, 84 (1st Cir. 2015)

(internal quotation marks omitted).

Hardy contends that Leshney knew that the officers lacked

probable cause to obtain a search warrant. The government

21 asserts and the record shows, however, that the officers had

ample probable cause to support an application for a search

Hardy told the officers that she had a surveillance system

that would have captured the attack, and that the footage was

stored on a DVR located in her apartment. In light of Hardy’s

statement, the officers could have reasonably believed that they

had probable cause to get a warrant to search Hardy’s apartment

for the DVR and any other evidence of the shooting. Therefore,

any representation by Leshney that the officers would get a

search warrant if Hardy withheld consent does not render Hardy’s

consent invalid.12 See Hinkley, 803 F.3d at 91 (“consent to

search is not invalid where procured by an officer’s reasonable

assessment that there would be a legal search anyway”) (citing

Vázquez, 724 F.3d at 22-25).

In addition, Hardy’s version of events is inaccurate.

Leshney told Hardy that if she did not consent to a search of

her apartment, he would apply for a warrant. He explained that

a judge might not approve the application, but if the judge did,

12Hardy points to Stuart-Holt’s statement to Leshney that the surveillance system footage was stored off-site and could be accessed remotely as evidence that Leshney could not have believed the officers had probable cause to obtain a search warrant to search for the DVR. As explained above, however, Leshney reasonably concluded that Stuart-Holt’s statements concerning the DVR were not credible and/or helpful.

22 the MPD would search Hardy’s apartment pursuant to the warrant.

Therefore, no coercion occurred.13 See United States v. Hinkley,

No. 2:13-cr-0049-NT, 2014 WL 119293, at *11 (D. Me. Jan. 10,

2014) (“[I]t is not police coercion to inform an individual what

the likely consequences will be if the individual refuses

consent, thereby providing context for the individual’s

decision, but [] it is police coercion to obtain consent by

tricking an individual into falsely believing a search is

inevitable and that declining consent would be futile.”).

Therefore, Leshney’s statements concerning applying for a

search warrant in the event that Hardy withheld consent does not

establish coercion.

b. Purpose of Seeking Consent

Hardy asserts that Leshney and Bergeron misrepresented the

purpose of the consent search. She argues that prior to

obtaining her consent, the officers falsely assured her that

they wanted to search her apartment to investigate the shooting

13 Hardycites Vázquez, 724 F.3d at 19-20, in support of her argument. Vázquez is not applicable to the facts in this case. In Vázquez, an FBI agent asserted he had authority to conduct a warrantless search of the defendant’s apartment if she did not consent to the search. See id. Here, Leshney advised Hardy of her right not to consent, and informed Hardy that the officers would apply for a warrant if she refused, but did not state that the warrant would be granted. Unlike the officer in Vázquez, Leshney did not assert that he had the authority to search the defendant’s home regardless of her consent.

23 rather than admit that the real purpose was to look for drugs.

Hardy points to the discovery of the Keurig box during the

protective sweep and to the fact that the officers did not view

the surveillance footage of the attack until several weeks after

the search. According to Hardy, the MPD’s discovery of the

Keurig box and lack of interest in the footage raises the

inference that the officers’ focus in seeking to search her

apartment was to search for narcotics, not to collect the

surveillance footage or look for evidence related to the

shooting.

The evidence shows, however, that the purpose of seeking

Hardy’s consent to search was to investigate the shooting. Both

Bergeron and Leshney, the officers who questioned Hardy at the

hospital and obtained her consent, worked in the MPD violent

crimes unit. Prior to obtaining her consent, Bergeron and

Leshney questioned Hardy only about the shooting, and did not

mention narcotics. The evidence shows that the officers were

investigating the shooting before and during the consent search,

and that the focus of the investigation changed only after

Fleming discovered the shopping bag full of drugs in Hardy’s

bedroom.14 Therefore, the fact that the MPD did not view the

14 Theofficers who specialize in narcotics investigations, Sullivan and DuBois, became involved in the investigation at that point, when the focus switched to narcotics.

24 surveillance footage until weeks later, after the focus of the

investigation had changed, does not support Hardy’s contention

that the officers misrepresented the purpose of seeking her

consent to search.15

In short, the officers did not misrepresent the purpose of

the consent search.

c. Hardy’s Physical and Mental Condition

Finally, Hardy argues that because of her physical and

mental condition at the time she gave consent, her consent was

not knowing or voluntary. When Hardy consented to the search of

her apartment, she was receiving treatment for the gunshot wound

to her hand, including pain medication. Hardy’s pain was

intense; she described experiencing a pain level of “10” on a

scale of 1-10. The medical records and testimony from the

officers who obtained Hardy’s consent, however, show that

despite her pain Hardy was coherent, alert, and answering

questions intelligently. Hardy’s questions seeking

clarification of certain parts of the consent form also show her

15Hardy’s suggestion that the discovery of the Keurig box during the protective sweep changed the focus of the MPD’s investigation is not supported by the evidence. At the time the officers obtained Hardy’s consent, they had not yet conducted the protective sweep or discovered the Keurig box. Even if they had, there is no evidence in the record that Bergeron or Leshney were aware of the Keurig box or its contents at the time they procured Hardy’s consent.

25 ability to understand and comprehend. See United States v.

Pena-Ponce, 588 F.3d 579, 584 (8th Cir. 2009) (upholding

district court’s finding of valid consent to search where

defendant, who “spoke only broken English,” told the officer

twice that “he did not understand a particular question, showing

that he usually did understand, but when he did not, he was

willing to say so”); see also United States v. Osborne, 662 F.

Supp. 2d 1306, 1314 (M.D. Ala. 2009) (consent to search was not

coerced and was voluntary where, although defendant was “upset

and sometimes tearful during the interview, he freely asked

questions and received clarification”). The evidence

establishes that Hardy was capable of consenting to the search.

The government has, therefore, carried its burden to show

that Hardy knowingly, voluntarily, and intelligently consented

to a search of her apartment.

2. Scope of Consent

search should be suppressed because the officers exceeded the

scope of her consent, which was limited to obtaining the

surveillance footage. “Warrantless searches may not exceed the

scope of the consent given. The scope of consent is measured by

a test of objective reasonableness: ‘what would the typical

reasonable person have understood by the exchange between the

26 officer and subject?’” United States v. Marshall, 348 F.3d 281,

286 (1st Cir. 2003) (quoting Florida v. Jimeno, 500 U.S. 248,

251 (1991)). “[Courts] therefore look beyond the language of

the consent itself, to the overall context, which necessarily

encompasses contemporaneous police statements and actions.” Id.

at 286-87 (internal quotation marks and citation omitted); see

also Casellas-Toro, 807 F.3d at 391.

The MPD consent form that Hardy signed authorized the

officers to collect “any letters, papers, materials or other

property which they may desire.” However, in response to

Hardy’s question about that language, Leshney explained that the

search of her apartment would focus on looking for evidence of

the shooting and collecting the DVR. A reasonable person would

have understood that Hardy consented to a search of her

apartment to recover the DVR and to look for any evidence

related to the shooting.

Hardy contends that the MPD’s seizure of the shopping bag

full of drugs went beyond the scope of her consent. The court

finds, however, that the seizure of the shopping bag was

permissible under the plain view exception.

“The theory of [the plain view] doctrine consists of

extending to nonpublic places such as the home, where searches

and seizures without a warrant are presumptively unreasonable,

the police’s longstanding authority to make warrantless seizures

27 in public places of such objects as weapons and contraband.”

Arizona v. Hicks, 480 U.S. 321, 326–27 (1987) (citing Payton v.

New York, 445 U.S. 573, 586–87 (1980)). “[T]he plain view

doctrine permits the warrantless seizure of an item if the

officer is lawfully present in a position from which the item is

clearly visible, there is probable cause to seize the item, and

the officer has a lawful right of access to the item itself.”

United States v. Gamache, 792 F.3d 194, 199 (1st Cir. 2015). In

this context, “probable cause exists when the incriminating

character of an object is immediately apparent to the police.”

United States v. Sanchez, 612 F.3d 1, 5 (1st Cir. 2010).

At the evidentiary hearing, Hardy conceded that, to the

extent the officers were lawfully in her apartment at the time,

both the money and evidence of personal narcotics use were in

plain view. And, it is undisputed that the open shopping bag

was clearly visible from the entrance to the bedroom where the

DVR was located.16 The shopping bag was on the floor between the

bed and the TV stand where the DVR was stored. Hardy contends

that the incriminating nature of the bag was not immediately

apparent.

“[An] officer need not be certain of the incriminating

character of an object, but, rather, must have a belief based on

16 A photograph of the room conclusively established that fact. See Ex. 17i.

28 a ‘practical, nontechnical probability’ that the object is

evidence of a crime.” United States v. Paneto, 661 F.3d 709,

714 (1st Cir. 2011) (quoting United States v. Giannetta, 909

F.2d 571, 579 (1st Cir. 1990)). “[T]he use of the phrase

‘immediately apparent’ [in Coolidge v. New Hampshire, 403 U.S.

443 (1971)] was very likely an unhappy choice of words, since it

can be taken to imply that an unduly high degree of certainty as

to the incriminatory character of evidence is necessary for an

application of the ‘plain view’ doctrine.” Texas v. Brown, 460

U.S. 730, 741 (1983). The doctrine requires only that an

officer have probable cause in its ordinary sense before seizing

an incriminating item. Minnesota v. Dickerson, 508 U.S. 366,

376 (1993).

Here, prior to picking up the shopping bag, Fleming had

ample probable cause to believe the bag contained contraband.

Fleming testified that he could see that the shopping bag

contained a Ziploc bag within which he could see chalk-like

objects that had an off-white color similar to the color of the

powder residue on top of the TV stand. Viewed in the context of

the wads of cash and other evidence of narcotics use in the

apartment, there was more than a “practical, nontechnical

probability” that the bag contained an illegal substance.

Hardy argues that the incriminating nature of the bag only

became apparent to Fleming after he picked it up and looked

29 inside it. However, Fleming credibly testified that before he

picked up the bag, he could see a Ziploc bag, as well as the

off-white chalk-like objects inside it.17 When Fleming exclaimed

“uh-oh” after picking up the shopping bag, he was expressing

shock at the quantity of drugs in the bag, rather than shock at

the presence of drugs in it. An officer is permitted to examine

an item more closely to confirm his belief that an item is

contraband. See Paneto, 661 F.3d at 714 (officers had probable

cause to seize a $20 bill, which was evidence of a crime,

despite not being able to confirm the incriminatory nature of

the bill until after the officer picked it up, turned it over,

and observed the incriminating mark); see also Brown, 460 U.S.

at 746 (Powell, J., concurring) (experienced officer recognized

that an innocent-looking party balloon was knotted in a fashion

commonly used to package heroin); United States v. Johnston, 784

F.2d 416, 421 (1st Cir. 1986) (experienced officer recognized

adding machine tapes and written notations as drug related).

Moreover, in light of the unique set of facts, Fleming’s act of

17 Tobe clear, the court found Fleming to be a credible witness in every respect. He conceded that his realization that the bag contained a large quantity of drugs was a fluid process. However, he did not waver on the critical fact that, before picking up the shopping bag, he could see chalk-like objects that “matched” the color of residue on the TV stand inside an open Ziploc bag within the shopping bag. This testimony establishes more than enough probable cause for Fleming to seize the shopping bag.

30 picking up the shopping bag may not have constituted a search at

all. See id. at 714 n.3 (“Under Hicks, it is clear that the

Fourth Amendment forbids handling an item to expose something

hidden, but it is far from clear that the Fourth Amendment

prohibits moving an item merely to magnify or confirm something

already visible.”).

In short, the officers were permitted to search for any

evidence of the shooting, and for the DVR, which was located on

a TV stand in Hardy’s bedroom. Fleming observed the shopping

bag full of drugs in plain view as the officers were concluding

their lawful search and preparing to leave. Therefore,

Fleming’s seizure of the shopping bag was not unlawful.

3. Necessity of Stuart-Holt’s Consent

Stuart-Holt argues that the consent search was unlawful

because the MPD failed to obtain his consent. He contends that

because he was a co-tenant, the MPD could not conduct a consent

search without procuring both his and Hardy’s consent.

In general, the “consent of one who possesses common

authority over premises or effects is valid as against the

absent, nonconsenting person with whom that authority is

shared.” United States v. Matlock, 415 U.S. 164, 170 (1974).

“Common authority” rests on “mutual use of the property by

persons generally having joint access or control for most

31 purposes, so that it is reasonable to recognize that any of the

co-inhabitants has the right to permit the inspection in his own

right and that the others have assumed the risk that one of

their number might permit the common area to be searched.”

Georgia v. Randolph, 547 U.S. 103, 110 (2006) (quoting Matlock,

415 U.S. at 171 n.7 (internal quotation marks omitted)).

Here, Hardy and Stuart-Holt both rented the apartment that

was subject to the consent search. Therefore, Hardy and Stuart-

Holt both had common authority to consent to a search of the

apartment. Once the officers obtained Hardy’s consent, they

were not required to also obtain Stuart-Holt’s consent in order

to proceed with the search.18

The government has carried its burden to show that Hardy’s

consent was voluntary, knowing, and intelligent, and that her

consent alone, without Stuart-Holt’s, was sufficient to allow

the MPD to conduct a warrantless search. The government has

18Stuart-Holt asserted at the hearing that he affirmatively objected to the search while on the phone with Leshney. The evidence in the record, including Stuart-Holt’s affidavit, does not support that assertion and the court finds that he did not object while on the telephone with Leshney. Even if the court agreed with Stuart-Holt that he interposed an objection while on the telephone with Leshney, such a finding would not negate Hardy’s consent. See Fernandez v. California, 134 S. Ct. 1126, 1133-36 (2014) (noting that under Randolph, a warrantless search done on the basis of an occupant’s consent may be unreasonable if a co-occupant objects to the search, but the “holding [is] limited to situations in which the objecting occupant is [physically] present”).

32 also carried its burden to show that the search did not exceed

the scope of Hardy’s consent. Therefore, Hardy’s and Stuart-

Holt’s motions to suppress evidence seized during the searches

of their apartment are denied to the extent they seek to

suppress evidence seized during the consent search.

B. The Warrant Search

Hardy contends that evidence seized during the warrant

search should be suppressed because without information

unlawfully gained during the consent search, the affidavit and

warrant for the warrant search lacked probable cause. For the

reasons discussed above, the consent search was lawful.

Therefore, any information gained during that search which was

used as a basis for either the affidavit or the warrant was not

improperly collected. Casellas-Toro, 807 F.3d at 392 (court’s

determination that first search was valid disposes of

defendant’s argument that subsequent search warrant lacked

probable cause because it was based on information gleaned from

the first search).19

19Hardy also asserts an argument under Franks v. Delaware, 438 U.S. 154, 172 (1978), based on what she alleges were false statements (or omissions) in the search warrant affidavit. This argument is meritless as the affidavit contains no false statements. Moreover, were the court to excise the alleged false statements from the affidavit, there would remain ample probable cause to support the warrant.

33 Accordingly, Hardy’s and Stuart-Holt’s motions to suppress

evidence seized during the searches of their apartment are

denied.

II. Hardy’s Statements at the Hospital and at the MPD

Hardy seeks to suppress the statements she made to Sullivan

and DuBois at the hospital on June 23, 2015, and at the MPD on

June 24, 2015. Hardy asserts that she should have been, but was

not, given Miranda warnings prior to making her statements at

the hospital on June 23. She also argues that, although she was

advised of and waived her Miranda rights prior to making

incriminating statements at the MPD on June 24, her waiver was

not valid. Hardy further contends that regardless of her

Miranda arguments, both her statements should be suppressed

because they were not voluntary.

A. Failure to Provide Miranda Warnings at Hospital

Hardy contends that she was in custody while she was in the

hospital, which triggered the requirement of Miranda warnings.

She argues that the officers’ failure to give her warnings

requires suppression of the statements she gave them.

“Law enforcement officers must give Miranda warnings before

interrogating an individual who is ‘taken into custody or

otherwise deprived of his freedom of action in any significant

way.’” United States v. Infante, 701 F.3d 386, 396 (1st Cir.

34 2012) (quoting Stansbury v. California, 511 U.S. 318, 322 (1994)

(per curiam)). Determining whether an individual is in custody

for the purposes of Miranda “involves two distinct inquiries:

‘first, what were the circumstances surrounding the

interrogation; and second, given those circumstances, would a

reasonable person have felt he or she was not at liberty to

terminate the interrogation and leave.’” Infante, 701 F.3d at

396 (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)).

When medical treatment prevents an individual from leaving, the

second inquiry becomes: was the individual “at liberty to

terminate the interrogation and cause the officers to leave”?

Infante, 701 F.3d at 396 (internal quotation marks and

alteration omitted).

To determine whether an individual is in custody for the

purposes of Miranda, the court considers the totality of the

circumstances. Infante, 701 F.3d at 396. In considering the

totality of circumstances, the following factors guide the

court’s analysis: “whether the suspect was questioned in

familiar or at least neutral surroundings, the number of law

enforcement officers present at the scene, the degree of

physical restraint placed upon the suspect, and the duration and

character of the interrogation.” Id. (quoting United States v.

Hughes, 640 F.3d 428, 435 (1st Cir. 2011)). “It bears emphasis

that the determination of whether custody exists ‘depends on the

35 objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers

or the person being questioned.’” Hughes, 640 F.3d at 435

(quoting Stansbury, 511 U.S. at 322). Here, considering the

relevant factors, the government has shown by a preponderance of

the evidence that Hardy was not in custody when she was

questioned by Sullivan and DuBois at the hospital.

First, the evidence shows that Hardy’s hospital room was a

neutral setting. Although a police officer accompanied Hardy to

the hospital, the MPD was not involved in her hospitalization

and did not interfere in any way with her care or extend her

hospital stay. See United States v. Martin, 781 F.2d 671, 673

(9th Cir. 1985) (fact that officers were not involved in the

defendant’s hospitalization and did nothing to extend the

defendant’s hospital stay weighed in favor of a finding that the

defendant was not in custody). Hardy was interviewed in her

hospital room with a roommate present for at least some portion

of the interview. Furthermore, hospital staff came and went

during the questioning, and the officers left in the morning

when Hardy appeared tired and in the afternoon when hospital

staff told them Hardy needed to prepare for surgery. See

Infante, 701 F.3d at 397 (“hospital staff came and went freely

during the course of the interviews, suggesting that the

officers were not in a position to dominate the setting as they

36 are, for example, [in] an interrogation room at a jailhouse”)

(internal quotation marks and brackets in original omitted).

These facts, taken together, show that the hospital was “at

least a neutral setting.” Id.

Second, the number of law enforcement officers present

weighs in favor of finding that Hardy was not in custody during

the hospital interviews. During the interviews on June 23, only

two detectives, Sullivan and DuBois, both of whom were wearing

plain clothes, were present in the hospital room with Hardy.

See Hughes, 640 F.3d at 436 (finding no custodial interrogation

where two plain clothes agents questioned the defendant in a

small house while two uniformed officers waited outside the

room).

Third, the officers did not physically restrain Hardy in

any way during the hospital interviews. Although Hardy may have

been confined to her hospital bed because of her injury, that

restriction does not weigh in favor of a finding that she was in

custody. See, e.g., United States v. Jamison, 509 F.3d 623, 629

(4th Cir. 2007) (“In dissecting the perceptions of such a

reasonable person . . . we must be careful to separate the

restrictions on his freedom arising from police interrogation

and those incident to his background circumstances. That is, to

the extent Jamison felt constrained by his injuries . . . such

37 limitations on his freedom should not factor into our [custody]

analysis.”).20

Fourth, although the duration of Sullivan and DuBois’s

interaction with Hardy was lengthy, the nature of the interviews

was relaxed and cordial. Although the record is not entirely

clear about the duration of the interviews, the court finds that

Hardy was questioned for four hours in the morning and for 90

minutes in the afternoon, with approximately 90 minutes between

the two interviews. Sullivan and DuBois both testified about

the nature of their interactions with Hardy, describing them as

relaxed and cordial. At the conclusion of the interviews on

June 23, DuBois helped a nurse transport Hardy to surgery and

joked with Hardy about the situation. See Infante, 701 F.3d at

398 (that the defendant shared laughs with the officers

supported a finding that the interview was non-threatening); see

also Hughes, 640 F.3d at 437 (details such as the officer’s

politeness and that they never “hectored” the defendant entitled

to weight in custody analysis). Taking into account all of the

20Although the officers closed the door to Hardy’s hospital room at one point, considering the totality of the circumstances, the closing of the door is insignificant. See, e.g., United States v. Velazquez-Corchado, No. 11-359 (ADC/BJM), 2013 WL 1124678, at *3 (D.P.R. Feb. 26, 2013) (closing door to room where interview took place was not significant to custody analysis) (citing Oregon v. Mathiason, 429 U.S. 492, 494-95 (1977)).

38 relevant factors, the evidence shows that Hardy was not in

custody while at the hospital on June 23 during the interviews.21

Hardy argues that regardless of these factors, she was in

custody at the hospital because Sullivan and DuBois intended,

from the start of their interaction with her, to arrest her

eventually. Although the evidence does not support that

conclusion, even if true, such finding would not help Hardy

because “the interrogating officer’s intent, not communicated to

the individual being questioned, is irrelevant to the inquiry.”

Hughes, 640 F.3d at 435.

The court’s conclusion that Hardy was not in custody at the

hospital is supported by the First Circuit’s decision in

Infante, 701 F.3d at 397-98. In that case, the court of appeals

held that a defendant was not in custody when officers

questioned him while he was in the hospital. Id. at 398. The

relevant circumstances included the neutral setting of the

hospital room, that Infante went to the hospital of his own

21 Insupport of her argument that she was in custody at the hospital, Hardy cites Martin, 781 F.2d at 672-74. Martin does not support Hardy’s argument. In that case, the Ninth Circuit found that the defendant was not in custody while being questioned at a hospital. Id. at 673. Although the Ninth Circuit noted in dicta certain circumstances that could support a finding of custodial interrogation in a hospital setting (e.g., police took criminal suspect to hospital from crime scene, monitored hospital stay, and arranged a treatment schedule), those factors are not present here.

39 accord, that hospital staff came and went freely during the

interviews, that the number of officers in the room – two - was

not overwhelming, and that the officers did not physically

restrain Infante or act in a threatening manner. Id. at 397–98.

The court also noted that “[d]espite having received pain

medication, Infante was coherent and responsive, showing no sign

of mental impairment.” Id. at 397. The holding in Infante,

which addressed a set of circumstances similar to those

presented here, supports a finding that Hardy was not in custody

when she was questioned at the hospital.

In light of the totality of circumstances, the court

concludes that a reasonable person in Hardy’s shoes would have

felt free to terminate the June 23 interviews and ask Sullivan

and DuBois to leave. Accordingly, Hardy was not in custody when

she made statements to Sullivan and DuBois at the hospital on

June 23, 2015.22

22 Atone point during her interaction with Sullivan and DuBois, Hardy said “maybe I should speak to an attorney.” To the extent Hardy intends to argue that her statement constitutes an invocation of her Miranda right to counsel, such an argument is unavailing. When an individual is not in custody, “officers [are] not obligated to respect his attempted invocation of [his right to remain silent and to have counsel present].” Infante, 701 F.3d at 398 (citing United States v. Ellison, 632 F.3d 727, 731 (1st Cir. 2010) (“[E]ven if Ellison had clearly expressed a desire to speak with a lawyer, he could not have invoked any constitutional right to do that in a non-custodial interrogation.”)).

40 B. Validity of Miranda Waiver at the MPD

Hardy concedes that she was given Miranda warnings and

waived her rights prior to making statements at the MPD. She

contends, however, that her waiver was not knowing, voluntary,

and intelligent.

“To protect the Fifth Amendment privilege against self-

incrimination, law enforcement officials must advise suspects in

custody of their Miranda rights prior to any questioning.”

United States v. McForbes, 110 F. Supp. 3d 332, 335-36 (D. Mass.

2015) (citing Miranda, 384 U.S. at 478). An individual may

waive her Miranda rights, but in order to be valid, that waiver

must be (1) voluntary and (2) knowing and intelligent. United

States v. Downs–Moses, 329 F.3d 253, 267 (1st Cir. 2003). The

government must establish that the defendant validly waived her

Miranda rights by a preponderance of the evidence. Id.

Hardy concedes that she was advised of and waived her

Miranda rights prior to giving incriminating statements at the

MPD on June 24. She argues, however, that her waiver was not

valid because it was not voluntary, knowing, and intelligent.

1. Voluntary

“A waiver is voluntary when it is the product of a free and

deliberate choice rather than intimidation, coercion, or

deception.” United States v. Bezanson–Perkins, 390 F.3d 34, 39

41 (1st Cir. 2004). “To determine the voluntariness of a waiver,

it is necessary to look at the totality of the circumstances,

including the tactics used by the police, the details of the

interrogation, and any characteristics of the accused that might

cause his will easily to be overborne.” United States v.

Palmer, 203 F.3d 55, 60 (1st Cir. 2000) (citing Arizona v.

Fulminante, 499 U.S. 279, 285 (1991) & United States v.

Rohrbach, 813 F.2d 142, 144 (8th Cir. 1987)) (internal quotation

marks omitted).

The government has shown by a preponderance of the evidence

that Hardy’s waiver of her Miranda rights was voluntary. On

June 23, before leaving the hospital, the detectives explained

to Hardy that if she tried to leave the hospital she would be

arrested. They also told her that before speaking to her again,

they would provide her with Miranda warnings. On June 24, Hardy

was discharged from the hospital at 10:38 a.m., she arrived at

the MPD shortly thereafter, and she signed a Miranda waiver form

at 10:58 a.m. See United States v. Hough, 944 F. Supp. 20, 23

(D.D.C. 1996) (short period of time defendant was in custody

prior to being advised of and waiving his Miranda rights weighed

in favor of finding of voluntary waiver). Sullivan and DuBois

testified that they explained the form to Hardy, that she

understood it, and that she signed it freely.

42 Hardy argues that her waiver was not voluntary because she

was given pain medication immediately prior to leaving the

hospital and because she had been suffering from heroin

withdrawal during her hospital stay. While the evidence shows

that Hardy had been administered pain medication at the hospital

prior to her discharge, there is no evidence that this

medication or any withdrawal symptoms had a negative impact on

her mental functioning. The government produced convincing

evidence that Hardy’s mental state was not deficient. DuBois

testified that Hardy did not seem to be under the influence of

medication while at the MPD, and that she was alert and not

slurring her words. Sullivan, who is an experienced drug

investigator, also testified that Hardy did not appear to be

suffering from withdrawal symptoms.

The government has met its burden of showing that Hardy’s

waiver of her Miranda rights was voluntary.

2. Knowing and Intelligent

“A defendant’s waiver of the Fifth Amendment privilege is

knowing and intelligent where he is advised and understands that

he has the right to remain silent and that any statements he

makes may be used as evidence against him.” McForbes, 110 F.

Supp. 3d at 337 (citing Colorado v. Spring, 479 U.S. 564, 574

(1987)). The court looks at the totality of the circumstances

43 in order to determine whether the waiver was made with the

“requisite level of comprehension.” Moran v. Burbine, 475 U.S.

412, 421 (1986).

that Hardy knowingly and intelligently waived her Miranda

rights. Both Sullivan and DuBois testified that they presented

Hardy with a Miranda waiver form and one of them read the form

to her. Sullivan testified that he asked Hardy if she had any

questions, and she replied that she did not. Hardy initialed

the form indicating she understood her rights. Both detectives

testified that Hardy appeared to understand the form and did not

appear to be either in pain or under the influence of

medication. The evidence unequivocally shows that Hardy

knowingly and intelligently waived her Miranda rights. See,

e.g., United States v. Wilson, No. 05-82-P-H, 2006 WL 1314297,

at *4 (D. Me. May 12, 2006) (waiver of Miranda rights was

voluntary where there was no evidence that defendant was

incapable of understanding rights or needed immediate medical

attention, and evidence showed that detectives communicated his

rights to him in a straightforward manner).

Considering the totality of the circumstances, the court

finds that Hardy voluntarily, knowingly, and intelligently

waived her Miranda rights before making statements to Sullivan

and DuBois on June 24, 2015.

44 C. Voluntariness of Hardy’s Statements at the Hospital and at the MPD

In addition to compliance with Miranda, the government must

show that the suspect made his or her statements voluntarily.

Hughes, 640 F.3d at 438. “It is elementary that a coerced

confession cannot be admitted to prove a defendant’s guilt.”

Id. “The burden rests with the government to prove

voluntariness by a preponderance of the evidence.” United

States v. Jackson, 918 F.2d 236, 241 (1st Cir. 1990). “When

charged with determining whether a confession was voluntary, an

inquiring court must sift through the totality of the

circumstances, including both the nature of the police activity

and the defendant’s situation.” Hughes, 640 F.3d at 438. The

circumstances the court considers include the following: “the

length and nature of the questioning, any promises or threats

made, and any deprivation of essentials . . . imposed on the

subject.” Id. Additionally, the court considers the

defendant’s attributes, including her mental state. Id.

1. Hospital Statements

Sullivan and DuBois interviewed Hardy twice while she was

at the hospital on June 23 - once in the morning and once in the

afternoon. The court finds that, considering the totality of

45 the circumstances, the government has shown that the statements

Hardy made during the hospital interviews were voluntary.

As the court noted previously, the length of time the

officers spent questioning Hardy was extensive. The lengthy

period of time spent interviewing Hardy does not, however,

render her statements involuntary, as the nature of the

questioning was not coercive. See United States v. Jacques, 784

F. Supp. 2d 48, 55 (D. Mass. 2011) (statements were voluntary

despite six-and-a-half hour interview) (collecting cases).

Sullivan and DuBois were dressed in plain clothes. They

interviewed Hardy in the morning and afternoon, as opposed to at

night. See Hughes, 640 F.3d at 437 (late morning was not a

“menacing” time of day). They questioned Hardy in her hospital

room. Hardy’s roommate was present for some portion of the

time, and the officers did not ask her roommate to leave. The

detectives did not impede the hospital staff’s ability to treat

Hardy, nor did they restrict Hardy’s access to medical care.

Further, there is no evidence that the detectives raised their

voices, yelled, or acted aggressively towards Hardy in any way.

Sullivan began his interaction with Hardy by telling her that

“if she was resting [he and DuBois] would come back another

time.” Both detectives testified that their interactions with

Hardy were relaxed and cordial. The nature of the interviews

46 was not coercive, and weighs heavily in favor of a finding of

voluntariness.

Other factors also weigh in favor of finding that Hardy’s

statements at the hospital were given voluntarily. Sullivan

told Hardy that he would make recommendations to the prosecutor

in exchange for Hardy’s cooperation, but that he could not make

any promises. Sullivan and DuBois told Hardy that she would

likely be arrested at a later date for the drugs found in her

apartment, and they did not suggest she would avoid arrest if

she cooperated with their investigation. In addition, there is

no evidence that Hardy was deprived of any essentials during her

interactions with the detectives at the hospital on July 23. To

the contrary, during both interviews Hardy was being cared for

by hospital staff, and the officers did nothing to interfere

with that care.

Hardy’s situation and personal attributes also do not weigh

in favor of suppressing her statements at the hospital. Hardy

argues that her mental state was compromised because she was a

shooting victim, on pain medication, and experiencing withdrawal

symptoms throughout the relevant time period. There is no

evidence in the record, however, supporting Hardy’s argument

that these facts compromised her mental state.

To be sure, being the victim of a violent crime is a

traumatic experience. Indeed, the evidence reflects that Hardy

47 was emotionally upset and in a great deal of pain when she

arrived at the hospital. And, on the morning of June 23, before

she made her statements to Sullivan and DuBois, a nurse noted

that Hardy was anxious and overwhelmed. But, Hardy’s medical

record is also replete with notes that Hardy was alert and

coherent. The medical records further indicate that Hardy was

given medication for pain and anxiety. Although the pain

medication given to Hardy can cause confusion, there is no

evidence that Hardy was mentally compromised. Lastly, although

Hardy did complain to Berthiaume at mid-day on June 23 that she

was experiencing withdrawal symptoms, Berthiaume testified that

Hardy’s thoughts and speech were “normal,” and that Hardy could

“communicate effectively.” The court finds that any withdrawal

symptoms Hardy was experiencing did not compromise her mental

state.

In light of the totality of these circumstances, the court

finds that the government has shown by a preponderance of the

evidence that Hardy spoke freely with Sullivan and DuBois at the

hospital and that her statements at the hospital on July 23 were

voluntary.

2. MPD Statements

Hardy argues that her statements on June 24 at the MPD were

involuntary for two reasons. First, Hardy argues that her

48 statements on June 24 were involuntary because they were the

fruit of her June 23 statements. Having found that Hardy’s June

23 statements were voluntary, the court rejects this argument.

See Hughes, 640 F.3d at 441 (“We already have concluded that his

earlier confession was lawfully obtained.[] It follows that

there is no poisonous tree.”). Second, Hardy argues that her

MPD statements on June 24 were involuntary because of the long

duration of the interrogation and because Hardy was deprived of

essentials. This argument merits further discussion.

While the duration of Hardy’s interrogation on June 24 was

extensive, the nature of the interrogation is not indicative of

coercion. On June 24, after Sullivan and DuBois drove Hardy

from the hospital to the MPD, they debriefed her for

approximately one hour and forty minutes. Hardy, Sullivan, and

DuBois then spent the rest of the day, until 8:45 p.m., waiting

around at the MPD trying to set up a drug delivery. Sullivan

and DuBois testified that their interaction with Hardy on June

24 was “very relaxed.” Thus, while Hardy spent a large amount

on time at the MPD, not all of that time was spent answering

questions from the detectives. Further, the evidence shows that

the nature of the interrogation was not coercive.

In addition, there is no evidence that Sullivan and DuBois

made any promises to Hardy or threatened her. The court also

finds that Sullivan and DuBois did not deprive Hardy of any

49 essentials. During Hardy’s time at the MPD that day, the

detectives offered Hardy food, which she refused. They also

took her outside for cigarette breaks.

Hardy argues that Sullivan and DuBois deprived her of

clothing, the ability to follow her discharge instructions, and

pain medication. When Hardy was released from the hospital, the

detectives requested a pair of scrubs for Hardy to wear because

the MPD had taken her clothing as evidence on the night of the

shooting. While Hardy would have been more comfortable in her

own clothing, the court does not find that wearing scrubs

instead of her own clothing amounts to depriving Hardy of an

essential.

At the hearing, Hardy made much of the fact that her

discharge instructions included a recommendation that she ice

and elevate her hand. Hardy asserts that Sullivan and DuBois

did not provide her with ice for her hand or an opportunity to

elevate it. Sullivan and DuBois testified, however, that they

were not aware of the recommendation and that Hardy never asked

them for ice. Had Hardy asked for ice and been refused, she

would have a stronger argument. In the absence of any

information about Hardy’s need for ice, the court cannot find

that Sullivan and DuBois deprived Hardy of an essential. Nor

does Hardy explain how the detectives prevented her from

elevating her hand.

50 Hardy’s argument that the officers failed to fill her

prescription for pain medication is equally unavailing. While

the officers did refuse to fill Hardy’s prescription for pain

medication because of MPD policy, they asked Hardy about her

pain throughout the day. Hardy told them that her pain was “not

too bad.”

Accordingly, the court finds that the government has shown

by a preponderance of the evidence that Hardy’s statements on

June 24, 2015 were voluntary.

CONCLUSION

For the foregoing reasons, Hardy’s and Stuart-Holt’s

motions to suppress evidence seized during searches of their

apartment (doc. nos. 20 and 22), and Hardy’s motion to suppress

statements she gave to officers at the hospital and at the MPD

(doc. no. 19) are denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 25, 2016 cc: Philip H. Utter, Esq. Charles F.A. O'Leary, Esq. Jaye Rancourt, Esq. Georgiana L. Konesky, Esq. Donald A. Feith, Esq. U.S. Probation U.S. Marshal