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United States v. Connelly

October 25, 2007

UNITED STATES OF AMERICA,
v.
ERIC CONNELLY, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This matter is before the Court on the defendant's motion to suppress statements that he purportedly made to law enforcement officers on March 2, 2005, and March 8, 2005, as well as statements relating to his telephone conversations that were monitored and recorded on March 15, 2005, March 29, 2005, and April 6, 2005. In that regard, an evidentiary hearing was held, at which three witnesses, Connecticut State Police Detectives James McGlynn and Jeffrey Twohill and Lieutenant James Pollard of the State of Connecticut Department of Corrections, testified. Additionally, certain exhibits were received into evidence. The Court has now had a chance to consider both the testimony and exhibits. For the reasons discussed below, defendant's application to suppress is denied in its entirety.

FINDINGS OF FACT

James McGlynn ("McGlynn") has been employed as a police officer with the Connecticut State Police since 1989, and since 1998 has been a detective with the central major crimes squad. On March 2, 2005, pursuant to his duties with the Connecticut State Police, Detective McGlynn went to 82 Wig Hill Road in Chester, Connecticut, the residence of the defendant, Eric Connelly ("the defendant") in connection with his investigation into the disappearance of Jason Argersinger ("Argersinger"). McGlynn was accompanied by his partner, Detective Anthony Buglioni ("Buglioni"). McGlynn and Buglioni were in plain clothes and drove an unmarked car. They arrived at the defendant's residence at about 9:00 p.m. Upon arriving, McGlynn and Buglioni approached the residence, and McGlynn knocked on the door, which was answered by the defendant's mother, Theresa Botono ("Botono"). McGlynn and Buglioni identified themselves as state police officers, and explained that they wanted to speak to her. Botono invited them inside and they proceeded to the kitchen area, where they were joined by the defendant and his girlfriend, Tarra Perrone ("Perrone"). McGlynn and Buglioni identified themselves to the defendant and Perrone as state police officers, and asked the defendant if they could speak to him. The defendant responded, "Sure." McGlynn and Buglioni did not handcuff the defendant, pat him down, or draw their guns. After the defendant indicated that he would speak to them, McGlynn, Buglioni and the defendant sat down at the kitchen table, and Botono and Perrone left the room. McGlynn and Buglioni did not read the defendant his Miranda warnings. They spoke to the defendant for about a half hour, and at no time did they handcuff the defendant, place him under arrest, restrict his movement in any way, or threaten or coerce him in any fashion. Moreover, the defendant never indicated that he did not want to speak with McGlynn and Buglioni, or that he wanted to speak to a lawyer. The defendant was cooperative and responded to the questions asked, and did not appear to be under the influence of either drugs or alcohol. After they finished their conversation with the defendant, McGlynn and Buglioni shook his hand and thanked him, and handed him a business card and told him that if he had any other information or learned anything to contact the number on the card. McGlynn and Buglioni then spoke to Botono and Perrone for a few minutes, thanked them, and left.

Jeffrey Twohill has been employed as a police officer with the Connecticut State Police since 1987, and since 1995 has been a detective with the central major crimes squad. On March 8, 2005, pursuant to his duties with the Connecticut State Police, he became involved in the investigation into Argersinger's disappearance. In connection with his participation in that investigation, on March 8, Twohill, along with his partner that day, Buglioni, went to the defendant's residence at 82 Wig Hilll Road. They were in plain clothes and driving an unmarked police vehicle. While both were armed, neither's firearm was visible. They arrived at the defendant's residence at about 12:00 p.m. Upon arriving, they knocked on the door of the residence, which was answered by the defendant. Twohill identified himself and told the defendant that he and Buglioni wished to speak to him further about the disappearance of Argersinger. The defendant responded by inviting Twohill and Buglioni inside the residence. Twohill and Buglioni did not draw their weapons, pat the defendant down, or place him under arrest. Once inside, Twohill and Buglioni spoke to the defendant and possibly his girlfriend, Perrone, for about twenty to thirty minutes. They again informed the defendant that they wished to speak to him further concerning Argersinger's disappearance, but explained that they would like to talk to him at a more private location, and suggested the Deep River Resident Trooper's Office. Twohill explained that the Deep River Resident Trooper's Office was not too far from the defendant's residence. Twohill also told the defendant that he did not have to accompany them, but that they would like to speak to him further, since it was important that they learn what happened. The defendant expressed a concern about missing school, and Twohill told him that it would not be a problem, that he would drive him to school if necessary. The defendant then agreed to accompany Twohill and Buglioni to the Deep River Office, and the defendant and Perrone discussed her using his car. The defendant brought a backpack with him, and gave Twohill permission to look inside. Upon inspection, Twohill observed that the backback contained books and other school-related items. The defendant either sat next to Twohill in the front seat or in the rear passenger seat. Twohill's and Buglioni's vehicle was a regular 2000 Dodge Intrepid and did not have a cage separating the back from the front.

Upon arriving at the Deep River Office, which is located in the Town Hall, Twohill parked the car, and he, Buglioni, and the defendant exited the vehicle and walked up to the second floor. The defendant was not handcuffed or restrained in any way. Twohill, Buglioni, and the defendant went into an office and sat around a desk. They were only there for a short time when Buglioni got a call on his cell phone. He then left the room for minute or so, and upon returning, informed Twohill that Joe Howenstine was at State Police Troop F, talking to other officers. He suggested to Twohill that they should see if the defendant would be willing to go to Troop F, since they and the offficers talking to Howenstine would then be all together instead of having to communicate by phone, and also since the Town Hall was noisier than anticipated. Twohill explained this to the defendant, who responded, "I'll go." Twohill, Buglioni, and the defendant then left the Deep River Office, where they had been for about ten minutes, and drove to Troop F.

Upon their arrival at Troop F, which is a two story building, Twohill, Buglioni, and the defendant went to Twohill's office in the Detective Division on the second floor. The defendant was not patted down or handcuffed, and remained free to leave. Once inside his office, Twohill specifically told the defendant that he was not under arrest. The defendant then volunteered that he was involved in the whole mess and he wanted to tell his side of it. In response, Twohill indicated to the defendant that he could use the phone in the office to call an attorney if he wanted, and added that if the defendant did not know who to call, he could use the telephone book to look someone up. The defendant, however, declined to call an attorney. Twohill proceeded to explain to the defendant that his laptop was right next to him, and that as they spoke he was going to type what the defendant told them, so the defendant could then read it over to ensure it was accurate and make any needed changes. The defendant agreed to doing this.

Prior to actually beginning the interview, Twohill had someone bring in pizza and soda, and he, Buglioni, and the defendant had something to eat. Twohill and the defendant then began to talk, and, after a few minutes, when the defendant began to speak about his role in the disappearance of Argersinger, Twohill began typing on his laptop. The defendant was at Troop F for approximately two hours, during which time the defendant used the bathroom unaccompanied by anyone. The written statement was started at 1:45 p.m. and completed at 3:00 p.m. In that regard, after he finished typing on his laptop what the defendant told him, Twohill printed the statement, read it to the defendant in Buglioni's presence, and gave it to the defendant to read, which he appeared to do. This three-page statement, received into evidence as Exhibit # 1, after indicating the defendant's name, address, date of birth, and social security number, contains the following pre-printed language:

I, Eric J. Connelly, . . . make the following statement, without fear, threat or promise, knowing that it may be used against me in court. I have been advised of my right to remain silent, that I have a right to consult with an attorney prior to any questioning and to have the attorney present during the questioning; that if I do talk to the police, I can terminate the questioning at any time; that if cannot afford an attorney, one will be appointed for me by the court. I understand the above rights and, at this time, waive them. I have been advised that my statement(s) made herein which I do no [sic] believe to be true, and which statement is intended to mislead a public servant in the performance of his/her official function, is a crime under C.G.S. section 53a-157.

When reading the statement to the defendant, Twohill read this portion as well. However, prior to this time, Twohill had not advised the defendant of his Miranda rights. After giving the defendant the opportunity to read the statement, Twohill said to him, "Do you swear it's the truth," to which the defendant responded, "Yes." The defendant then signed the statement, and Twohill and Buglioni witnessed his signature. At no time on March 8, 2005, did the defendant ever indicate to Twohill or Buglioni that he wanted a lawyer or that he did not want to speak to them anymore. Further, on that day the defendant did not appear to be under the influence of alcohol or drugs.

After the defendant completed the statement, Twohill drove him home. Prior to driving him home, Twohill let the defendant use his cell phone so he could call Perrone. The defendant was not placed under arrest on March 8, 2005.

James Pollard ("Pollard") has been employed by the State of Connecticut Department of Corrections ("Corrections") since 1993. He currently holds the rank of Lieutenant. In 2000, he became a telephone monitor for Corrections, and since 2004, he has been in charge of overseeing the Corrections telephone monitoring system. In his current position, Pollard is familiar with the regulations of the State of Connecticut governing the ability of correction facilities to record inmate calls. In that regard, Administrative Directive Number 10.7, captioned Inmate Communications, states in pertinent part:

5. Telephone Access. Each Facility Administrator shall provide "collect call only" telephones which allow for outgoing calls in areas specified by the Unit Administrator for inmate use. Schedules and terms for telephone use shall be posted in telephone areas. Inmate use of "collect call only" telephones shall be deemed a privilege and not an entitlement. Use of any telephone may be prohibited by the Facility Administrator in accordance with Administrative Directives 6.14, Security Risk Groups and 9.5, Code of Penal Discipline or to meet any valid penological interest. If the call is to an attorney, such prohibition shall be based upon a determination relating to the maintenance of security, safety or orderly operation of the facility. The availability or use of any telephones may be restricted or terminated at the discretion of the Commissioner or designee. Inmates shall not have access to use any facility telephone, other than a "collect call only" telephone, except as authorized in this Directive.

D. Recording and Listening to "Collect Call Only" Telephone Calls

Only telephone calls from "collect call only" telephones may be recorded and listened to provided the following provisions are complied with: 1. Notification. A sign in English and Spanish shall be posted at each inmate telephone location which reads: "Any conversation utilizing these telephones shall be subject to recording and listening."

Upon admission, each inmate shall be given a form stating that the inmate's telephone calls are subject to recording and listening. The inmate shall acknowledge reading the form by a legible printed name and signature or by an appropriate assent acknowledged in writing by a staff member. Any inmate not so consenting shall not be allowed use of the "collect call only" telephones and shall be instructed that any such use shall be unauthorized and in violation of institutional rules.

3. Listening. Listening shall be authorized only by the Unit Administrator or higher authority when there is reason to believe that such listening is reasonably related to the maintenance of the security, good order or discipline of the facility or the ...


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