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United States v. Theriault

April 7, 2008


The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

Decision and Order

I. Introduction

Danny Theriault has been charged with marijuana distribution and importation conspiracies. See Indictment, Dkt. No. 1; see also 21 U.S.C. §§ 846, 963. Claiming violations of his Fifth and Sixth Amendment rights, he moves to suppress oral statements he made to police officers. See Dkt. Nos. 74, 76-77; see also FED. R. CRIM. P. 12(b). For the reasons that follow, his motion is denied.

II. Facts

Having considered Theriault's burden of production, the appropriate burden of proof, the testimony of Drug Enforcement Administration ("DEA") Special Agent Merkel, New York State Police Investigator Snell, New York State Trooper Levin and Theriault, the suppression hearing exhibits, the parties' submissions, records contained in the court docket,*fn1 and having resolved issues of credibility, the court finds the following essential facts. See FED. R. CRIM. P. 12(d); see also United States v. Miller, 382 F. Supp. 2d 350, 361-63 (N.D.N.Y. 2005) (burden of production and proof).

For more than a decade, law enforcement authorities received information that Theriault and his mother, Jackaleen, were involved with others in the wide-scale distribution of marijuana. See 4/21/07 Merkel Search Warrant Affidavit at ¶ 5, Dkt. No. 45 ("Merkel Aff."). After police gathered additional evidence of Theriault's narcotics activity from state-authorized wiretaps and other investigative measures, that evidence was presented to a federal grand jury which returned a sealed indictment on April 19, 2007. See Dkt. Nos. 1-3; see also Merkel Aff. A sealed warrant for Theriault's arrest was issued when the indictment was filed. See id.

On April 21, Merkel obtained a federal search warrant for Theriault's North Bangor, New York residence. See Merkel Aff.; see also 4/21/07 Search Warrant, Dkt. No. 47 ("Search Warrant"). Merkel informed the issuing judge that Theriault had previously been convicted of violent crimes and a drug felony, and that he had expressed a penchant for violence during intercepted wiretap conversations. See Merkel Aff. at ¶ 5. Merkel also established reason to believe that Theriault might be armed. See id. at ¶ 2h. Accordingly, the judge authorized a no-knock warrant, inter alia, in order to protect the safety of the executing officers. See Search Warrant at p. 1. During the suppression hearing, Theriault admitted that he had been previously arrested nineteen times, ten for felonies and two for violent felonies. See 1/8/08 Suppression Hearing Transcript at 91, Dkt. No. 85 ("Hrg. T.").*fn2

On April 24, the police executed the arrest and search warrants at Theriault's residence.*fn3 Because Theriault was considered armed and dangerous, the executing officers were accompanied by the New York State Police Mobile Response Team ("MRT"). Using a battering ram and carrying a ballistics shield, Trooper Levin and nine other MRT members made an unannounced entry into the Theriault home at 6:15 A.M. The MRT members were dressed in black clothing, and wore hoods, goggles and a helmet. They carried arms at the ready, and immediately yelled that they were police officers. Within seconds, they located Theriault, his girlfriend and a baby in a bedroom. Theriault was removed to the living room, placed on the floor and his hands were secured behind his back by the equivalent of handcuffs. Once Theriault was secured, the officers holstered their handguns, and those carrying long arms used slings to shoulder the weapons. At no time did Levin or any MRT member holler at

Theriault, or otherwise make demands regarding the location of weapons, drugs or money. Within fifteen minutes, the house was secured and the MRT team left the house and property.

Merkel and Snell then entered and approached Theriault who was still on the living room floor. Merkel allowed Theriault to stand, and explained that the arrest was authorized by warrant, and that the police also had a search warrant. While Merkel and Snell were armed, their weapons were holstered. When Merkel told Theriault why the police were there, Theriault spontaneously stated that he had a baby, he did not want to go to jail, and he wanted to do whatever he could to get out of his problem. Merkel then removed Theriault to a patio area outside while the police completed a weapons search inside. Because it was chilly, Merkel got Theriault a jacket. Within minutes, the weapons search was completed and Theriault was returned to the kitchen area where he sat on a stool.

While on the patio and in the kitchen, Theriault spontaneously tried to initiate a conversation about cooperation. Merkel advised him to slow down, and told Theriault that he could not talk to him without first reading him his Miranda rights. While in the kitchen, Merkel utilized a preprinted DEA card and read the Miranda warnings verbatim. The substance of the advice was in full compliance with Miranda, including specific advice regarding Theriault's right to counsel during questioning and his right to appointed counsel if he could not afford one. At the end of the Miranda advice, Merkel asked: "Do you understand and are you willing to answer some questions?" Theriault responded that he understood his rights and wanted to talk.

Theriault remained at the residence with Merkel and Snell for the next forty-five minutes, and freely spoke to them about his narcotics activity, including the location of marijuana and money in the residence and in a vehicle. He answered their questions and spontaneously offered information.

After the forty-five minute interval at the residence, Theriault was transported to the State Police barracks in Malone, New York by Snell and a uniformed Trooper. The trip took fifteen minutes, and Snell and Theriault continued to talk about Theriault's criminal activity.

At the station, Theriault was placed in an interview room. After a brief hiatus while other defendants were processed, Snell resumed the conversation. Again, Theriault was forthcoming about his activity although he declined to discuss the involvement of his mother and brother. The conversation terminated at approximately 9:30 A.M. Accordingly, all questions, answers and spontaneous statements ...

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