United States District Court, W.D. New York
For Steven P. Race, Defendant: Anne M. Burger, Federal Public Defender, Rochester, NY.
For USA, Plaintiff: Charles E. Moynihan, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY.
REPORT & RECOMMENDATION
MARIAN W. PAYSON, United States Magistrate Judge.
By Order of Hon. David G. Larimer, United States District Judge, dated September 13, 2011, all pretrial matters in the above captioned case have been referred to this Court pursuant to 28 U.S.C. § § 636(b)(1)(A)-(B). (Docket # 19).
On September 13, 2011, the grand jury returned a five-count indictment charging defendants Steven Race (" Steven") and Timothy Race (" Timothy") with conspiracy to commit controlled substance offenses, in violation of 21 U.S.C. § 846. (Docket # 18). Both defendants are also charged with possession of marijuana with intent to distribute it, in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(D); unlawfully manufacturing marijuana plants, in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(C); using a premises for the purpose of manufacturing marijuana, in violation of 21 U.S.C. § 856(a)(1); and, possession of a firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1). (Id.).
Currently pending before the Court are motions by both defendants to suppress tangible evidence and statements, as to which evidentiary hearings were held. (Docket ## 75, 97, 106, 113). For the reasons discussed below, I recommend that the district court grant defendants' motions to suppress tangible evidence seized from 203 Lake Road and evidence of post-arrest statements made by Steven. I further find that supplemental briefing on the attenuation doctrine is appropriate before a decision may be made on Timothy's motion to suppress evidence of post-arrest statements he made.
I. Burns's Testimony
Officer Michael Burns (" Burns") testified that he had been employed by the Webster Police Department (" WPD") for approximately sixteen years and had previously been employed for approximately five years as an officer with the Rochester Police Department (" RPD"). (Tr. A 5). According to Burns, his responsibilities included enforcing laws and ordinances and responding to 911 calls. (Tr. A 6).
Burns testified that he responded to a 911 call on February 4, 2011, at approximately 11:30 p.m. (Tr. A 6). According to Burns, as he was patrolling in his marked police vehicle, he heard a 911 transmission concerning 203 Lake Road, Webster, New York. (Tr. A 6-7, 15, 94). At the time, Burns was accompanied by a high school senior (" M.H."), who was riding with Burns as part of an extra credit program through her high school. (Tr. A 17, 116). Burns described the report as a " domestic violence call." (Tr. A 7). Prior to responding to the call, Burns was informed that the caller, Carolyn Race (" Mrs. Race"), had reported that an argument was occurring at 203 Lake Road involving an individual named Adam Kuhn, and that the caller's son was present at the location. (Tr. A 10; Government's Exhibit (" G. Ex.") 1).
According to Burns, Mrs. Race had called WPD on multiple prior occasions to report incidents occurring at 203 Lake Road. (Tr. A 10-11). During the hearing, Burns reviewed WPD forms documenting previous calls to WPD about 203 Lake Road. (Tr. A 96-113). Those forms reflected approximately eight calls concerning 203 Lake Road between May 2010 and February 2011. (Id.). Of those calls, approximately seven were placed by Mrs. Race, including the phone call to which Burns responded on February 4, 2011. (Id.).
The calls generally requested that WPD either check on the welfare of Mrs. Race's sons or remove persons from the premises at 203 Lake Road. (Id.). The calls were typically coded as " services rendered" or " no cause, " which meant that " [t]here was no cause based on the officer's findings." (Tr. A 101). In one call, which was made only four days before the call at issue in this case, Mrs. Race reported that a female present at 203 Lake Road refused to leave the premises and that she wanted the female removed from that location. (Tr. A 112). When officers responded, they were informed by Mrs. Race's son that he was the legal tenant of the premises, that the female was a welcomed guest and that he wanted her to stay at the premises. (Tr. A 113). WPD records for that call indicate that the responding officer informed Mrs. Race to " no longer call her son per his request." (Id.). Although Burns testified that he had not been personally involved in responding to any of Mrs. Race's previous calls, he admitted that he was aware that she had frequently called the police concerning her sons, that some of the calls were unsubstantiated and that she " might be less than stable with respect to the calls that she made." (Tr. A 11, 156-57). Burns further testified that he did not consider the information about Mrs. Race's reliability in responding to the February 4 call because WPD General Orders required him to respond to the 911 call. (Tr. A 155-56).
According to Burns, he was required to respond to the February 4, 2011 call pursuant to WPD General Order 442, which governs responses to calls of domestic disputes and family offenses. (Tr. A 11-14). The Order directs an in-person investigation of reports of domestic incidents and prohibits the reclassification of domestic incident reports without both an investigation and supervisory approval. (Tr. A 14; G. Ex. 2). Burns testified that the Order was mandatory and afforded no discretion to him not to respond. (Tr. A 15). According to Burns, he was not aware of any specific information that any of the crimes encompassed in the Order's definition of domestic violence offenses was occurring at 203 Lake Road. (Tr. A 84-85).
After receiving the dispatch to 203 Lake Road, Burns also received a dispatch concerning a woman hitchhiking on Five Mile Line Road. (Tr. A 89-90). Burns testified that the incident on Five Mile Line Road was more urgent than the incident reported at 203 Lake Road, and he decided to respond to Five Mile Line Road first. (Tr. A 89-90, 117). Burns arrived at the Five Mile Line Road location within about one minute and at 203 Lake Road within approximately four to six minutes after receiving the calls. (Tr. A 7, 117).
According to Burns, he arrived at 203 Lake Road at approximately 11:25 p.m. without activating his sirens or emergency lights. (Tr. A 15; Tr. B 6). At the time, he was wearing his police uniform, a bullet proof vest, ear microphone, gun, belt and badge. (Tr. A 41). M.H. was not wearing any protective equipment. (Tr. A 119). Burns told M.H. that he was responding to a domestic violence disturbance, which he described as " one of the more violent calls that [he] respond[ed] to." (Tr. A 118). Prior to exiting the vehicle, Burns radioed for backup and heard that Officer Brian McCoy (" McCoy") was responding to the scene. (Tr. A 122-23).
Both Burns and M.H. exited the police car and approached the house, with Burns in the front and M.H. behind him. (Tr. A 17). WPD's General Order 525 directs that civilian riders " [w]ill stay in the police vehicle at in-progress calls." (Defendant's Exhibit (" D. Ex.") S at § VI(D)).
According to Burns, he walked along the driveway on the west side of the dwelling and bypassed the first door that he observed because the path to the door was snow covered. (Tr. A 16, 124-26; D. Ex. H). He continued towards the back of the premises, following a " beaten path of snow" that contained footprints. (Tr. A 16-17). As he walked alongside the premises, Burns passed a closed window and heard two voices speaking in a conversational tone. (Tr. A 18, 36-37, 123).
Burns walked up to a porch leading to the back door; as he did, he smelled raw, dried marijuana and also heard voices inside, which again sounded like two people conversing. (Tr. A 36-37, 39-40, 127-29, 131). Burns banged on the door. (Id.). According to Burns, everything went silent. (Tr. A 38, 131). Burns then rang the doorbell and yelled, " Police Department." (Tr. A 38-39, 131). Burns testified that he then heard fast-paced footsteps in the house. (Tr. A 39, 132). According to Burns, M.H. remained behind him on the steps leading to the porch. (Tr. A 136).
Through the exterior door, Burns observed an interior door open and a man, later identified as Steven, emerge from inside the house and walk towards the exterior door. (Tr. A 40-41, 132). Burns testified that he may have used his microphone to transmit a message about the running footsteps inside the home. (Tr. A 132). As Steven opened the door, Burns was " overwhelmed with the smell of marijuana." (Tr. A 41-42, 47).
Steven identified himself and asked Burns why he was there. (Tr. A 42). Burns informed Steven that he was there to investigate a domestic violence call, and Steven replied that there was nothing going on at the house. (Tr. A 42; Tr. B 6-8). Burns told Steven that he was responding to a call placed by Carolyn Race. (Id.). Steven told Burns that Carolyn Race was his mother and that her calls were harassment. (Tr. A 43; Tr. B 6-7). Burns then asked Steven who was inside the house. (Tr. A 43). Steven replied that nobody else was inside. (Id.). Burns told Steven that he " want[ed] to investigate" the phone call and requested permission to go inside the house to speak to the individuals inside. (Tr. A 43-44). Steven told Burns that nobody was inside the house and that he could not enter the house. (Tr. A 44; Tr. B 8).
Burns testified that he believed that exigent circumstances existed to warrant his entry into the house. (Tr. A 44). First, he was concerned about the domestic violence call and knew that other people were inside the house, that Steven had lied to him, and that he had heard people running in the house. (Tr. A 44-45). These circumstances led him to believe that someone inside the house might be a victim of assault or harassment. (Id.). Second, the overwhelming smell of marijuana, along with the sound of running feet, caused him to be concerned that individuals in the house were either destroying evidence or running for a weapon. (Id.).
Burns entered the house through the exterior door into an enclosed porch or " mud room." (Tr. A 46). From his vantage point inside the mud room, Burns could see a portion of the kitchen. (Tr. A 134-35; G. Ex. 10). Burns pushed Steven against the wall of the mud room, directing him to " put your fucking hands behind your back." (Tr. A 46, 137; Tr. B 9-10; G. Ex. 7). Burns handcuffed Steven's hands behind his back, performed a brief pat down of his outer clothing, and went through the interior door. (Tr. A 46, 138). Burns instructed M.H. to " stay with [him]." (Tr. A 138-39). According to Burns, he drew his firearm and announced, " Police Department." (Tr. A 46). Burns testified that he wanted M.H. to remain with him because he knew that other individuals were present and had run, but he did not know where they were. (Tr. A 156). From the threshold of the interior door, Burns observed cultivated marijuana and cutting tools on the kitchen table located to the left of the interior door. (Tr. A 46; G. Ex. 10).
As Burns moved into the house, he held his firearm in his right hand and directed Steven into the room first by pushing and dragging him by the handcuffs, which he held in his left hand. (Tr. A 47, 140; Tr. B 10-11). M.H. followed behind Burns. (Tr. A 141). Burns then addressed Steven, " Don't fuck with me here. Who is in the house?" (Tr. A 47, 52-54). Burns testified that as he proceeded through the kitchen scanning for anyone who might pose a threat, he observed an open stairwell to the second floor. (Tr. A 49, 52-55, 142). Burns remained in the kitchen because he was concerned that someone could descend the stairs and surprise him. (Tr. A 49, 54-55, 142).
Burns testified that while still in the kitchen, he observed Officer McCoy in the premises with two individuals. (Tr. A 48, 142-43; G. Ex. 10). According to Burns, he did not see McCoy enter the house. (Tr. A 48-49). Burns testified that when he first observed him, McCoy was located by the door between the living room and the enclosed front porch. (Tr. A 146-47; D. Ex. J). According to Burns, both he and McCoy were ordering the occupants to show their hands and shouting " Police." (Tr. A 48-49). According to Burns, the occupants complied with the officers' commands. (Tr. A 50).
Burns testified that he and McCoy " simultaneously locked down the first floor" in less than one minute. (Tr. A 55, 58). According to Burns, the first floor of the premises consisted of the mud room, kitchen area, living area and a foyer. (Tr. A 48, 53, 55-56). In the living area, there was a couch, a television, a stereo and a drying rack in the corner of the room. (Tr. A 55-56, 127). Burns could not recall whether the television or stereo were on when he entered the premises. (Tr. A 127). According to Burns, the drying rack had three levels and each level contained harvested marijuana. (Tr. A 56-57; G. Ex. 8-9). The rack was readily visible from Burns's vantage point. (Tr. A 57). According to Burns, neither the marijuana on the rack nor the marijuana on the table were completely dry, although it was in the process of being dried. (Tr. A 147-48).
At that point, Sergeant Kohlmeier arrived and entered the premises. (Tr. A 58). According to Burns, Sergeant Kohlmeier and McCoy continued to conduct a protective sweep of the house, while he removed Steven from the location and placed him in his patrol vehicle. (Tr. A 58-59). According to Burns, he removed Steven from the premises within ten minutes of his arrival at 203 Lake Road. (Tr. B 11). The two other individuals in the house were also removed from the premises. (Tr. A 59).
As he walked Steven to his patrol car, Burns recited the Miranda warnings to him. (Tr. B 11-12). According to Burns, he did not read the warnings from a preprinted card, but instead recited them from memory. (Id.). To the best of his recollection, Burns told Steven the following:
You have the right to remain silent. You don't have to say anything you don't want to. Anything you do say can be used against you in a court of law. You have a right to a lawyer before answering questions, have him or her here with you. If you can't pay for a lawyer, one will be given to you before any questions if you wish. If you do wish to talk to me, you can stop at any time.
(Tr. B 12-14).
Burns then asked Steven two waiver questions from memory, after which Burns placed him in the patrol vehicle. (Tr. B 14, 16). Burns entered the patrol vehicle and recorded Steven's answers to the waiver questions on a notification and waiver card. (Tr. B 14-17, 19-20; G. Ex. 1A). According to the card, Burns asked Steven whether he understood what Burns had said to him, and Steven replied, " Yes." (Id.). Burns then asked Steven whether he would agree to talk with Burns, to which Steven replied, " Well, yeah." (Id.). According to Burns, he made the remaining notations on the card after Steven had been transported to WPD and placed in a holding cell. (Tr. B 16-17). Burns testified that he administered the Miranda warnings at approximately 11:39 p.m. (Tr. B 19).
Burns transported Steven to WPD, arriving shortly before midnight. (Tr. B 21-22). During the transport, Burns did not ask Steven any questions, but Steven complained that Burns had entered his house without a warrant and that the 911 call from his mother constituted harassment. (Tr. B 24-25). Burns responded to Steven's statements by telling him to be quiet. (Tr. B 25, 40). As Burns was escorting Steven into the police department, Burns asked Steven whether he had completed the twelfth grade. (Tr. B 42). Steven indicated that he had, and Burns subsequently recorded that answer on the notification and waiver card. (Tr. B 42; G. Ex. 1A). Burns placed Steven into a holding cell at approximately 11:58 p.m. (Tr. B 23, 31; G. Ex. 10A). Burns testified that he did not inform Officer Cayward, who subsequently interviewed Steven, that he had previously administered Miranda warnings to Steven. (Tr. B 26, 46-47).
Burns testified that during his encounter with Steven, he did not appear to be under the influence of any drugs or alcohol. (Tr. B 21, 42-43). Burns also testified that he did not make any threats or promises to induce Steven to speak. (Tr. B 26, 39). According to Burns, Steven never indicated that he did not want to speak to him and never invoked any of his Miranda rights. (Tr. B 26-27).
Sergeant Kohlmeier subsequently informed Burns that the premises had been secured. (Tr. A 60). According to Burns, Sergeant Kohlmeier also informed him that a marijuana " grow operation" was observed in two separate locations inside the residence during the course of the protective sweep. (Tr. A 60, 145-46; D. Exs. L, M, N, O, P, Q).
Burns testified that he had received training in the identification of controlled substances. (Tr. A 21-35). In 1996 Burns completed a drug identification course relating to the recognition of marijuana, among other controlled substances. (Tr. A 21-22). In March 1999, Burns attended a five-day drug trafficking seminar. (Tr. A 22-23). Portions of that seminar involved identifying characteristics of marijuana trafficking, including identifying types of marijuana and how it is packaged, hid, stored and grown. (Tr. A 24). In 2000 Burns attended a seminar to train undercover officers in successful investigative work. (Tr. A 24-25). That seminar included information relating to marijuana trafficking, including how it is sold, distributed, packaged, hidden, transported and stored. (Tr. A 25).
Burns estimated that in his experience as a police officer he had been involved in over 150 investigations involving marijuana trafficking. (Tr. A 27). He testified that he had observed raw marijuana approximately seventy-five times and had encountered burning marijuana approximately fifteen times. (Tr. A 28). Between August 1999 and January 2001, Burns worked as an undercover officer with a multi-agency drug task force. (Tr. A 26). According to Burns, in that capacity, he was personally involved in at least six investigations of marijuana trafficking that resulted in the seizure of marijuana. (Tr. A 26-27).
Burns testified that he is familiar with the smell of raw marijuana and is able to distinguish the smell of burning marijuana from the smell of raw marijuana. (Tr. A 29). According to Burns, he understands the term " raw marijuana" to refer to marijuana in any form prior to burning or consumption. (Tr. A 67). Burns testified that he has expertise in smelling dried, but not undried, marijuana. (Tr. A 129). According to Burns, none of his training seminars involved the identification of undried, raw marijuana in plant form. (Tr. A 74-77). Burns testified that, prior to February 2011, he had been involved in two arrests involving non-dried marijuana in plant form. (Tr. A 77-79). In addition, Burns testified that he may have been present at the scene of approximately three investigations involving non-dried marijuana, but that he was not personally involved in those arrests. (Tr. A 79-82). WPD records reveal that no arrests for the sale or manufacture of marijuana occurred in 2009, one occurred in 2008 and in 2010, and two occurred in 2011. (D. Exs. X and Y).
II. 911 and Dispatch Recordings
The recordings of the 911 call placed by Carolyn Race and the dispatch transmissions relating to 203 Lake Road were introduced into evidence. (D. Ex. D). In the recording of the 911 call, a woman, who later identified herself as Carolyn Race, stated that " there seems to be a person that is kind of, um, disrupting things at 203 Lake Road[.] I was wondering if you could check that and make sure it's ok over there." The dispatcher asked Mrs. Race to explain what was going on at the location and whether it involved a disturbance or an argument. Mrs. Race replied affirmatively, stating that she had recently spoken with her son and that it sounded like there was another person there " upsetting things" and she just wanted someone to check to ensure that everything was alright. The dispatcher asked Mrs. Race whether she knew if there were weapons involved or who was involved in the argument. Mrs. Race replied that she thought the individual was named Adam Kuhn and that she was not present at the location, but her sons were.
In the dispatch recording, a voice can be heard indicating that it would take the " domestic" at 203 Lake Road. Burns testified that the transmission related to the incident at 203 Lake Road on February 4, 2011. (Tr. A 88). Later in the recording, a voice can be heard stating " Call in to check the welfare on Five Mile across from the school near Publisher's Parkway for a female that is trying to get people to pull over and give her a ride, saying that her vehicle is being towed." Burns responded to this transmission and indicated that he would respond to the call on Five Mile Line Road on his way to 203 Lake Road. (Tr. A 89-90, D. Ex. D).
III. McCoy's Testimony
McCoy testified that he had been employed as an officer with WPD for approximately five years and had previously been employed by RPD for approximately three years. (Tr. A 158-59). McCoy's responsibilities at WPD included enforcing vehicle and traffic laws and responding to 911 calls. (Tr. A 159). McCoy was working the evening shift on February 4, 2011 and responded to Burns's request for backup at 203 Lake Road. (Tr. A 160).
Prior to arriving at the scene, McCoy understood that there was a domestic violence call concerning the address, but he could not recall any other details. (Tr. A 160, 166). McCoy also knew that Burns had already entered the premises at 203 Lake Road before he arrived. (Tr. A 161, 170-71). McCoy could not recall if he had overheard the 911 call. (Tr. A 161, 166). McCoy testified that he did not know whether he was aware prior to February 4, 2011 that Carolyn Race had made multiple calls regarding 203 Lake Road. (Tr. A 168-69). Although WPD records indicated that McCoy had responded to the 203 Lake Road address in response to the call by Mrs. Race four days earlier, McCoy testified that he did not recall that incident. (Tr. A 166-67).
When McCoy arrived at the scene, he parked his vehicle on Lake Road and approached the premises on foot. (Tr. A 161). He testified that he entered the premises through the front door located at the northern corner of the property. (Id.). According to McCoy, the door was not locked, and he ...