U.S. v. Antone, C.A. No. 06-108 S.

• Citation: 479 F.Supp.2d 255
• Decision Date: 23 March 2007
• Docket Number: C.A. No. 06-108 S.
• Parties: UNITED STATES of America, Plaintiff, v. Joseph ANTONE, Jr., Defendant.
• Court: U.S. District Court — District of Rhode Island

479 F.Supp.2d 255

UNITED STATES of America, Plaintiff, v. Joseph ANTONE, Jr., Defendant.

C.A. No. 06-108 S.

United States District Court, D. Rhode Island.

March 23, 2007.

COPYRIGHT MATERIAL OMITTED

Sandra R. Beckner, Assistant United States Attorney, U.S. Attorney's Office, Providence, RI, for Government.

John F. Lusi, Joseph J. Voccola, Joseph J. Voccola, Esq. & Associates, Providence, RI, for Defendant.

DECISION AND ORDER

SMITH, District Judge.

Defendant Joseph Antone moves to suppress over 200 grams of cocaine (both powder and crack) seized by the Middletown and Newport police as well as oral and written statements Antone made to the police. Based on the following findings of fact and conclusions of law, and pursuant to Rule 12(d) of the Federal Rules of Criminal Procedure, the Court will grant the Motion to Suppress.

I. Background

On August 31, 2006, William Swierk, a detective with the Middletown Police Department, received an early-morning telephone call at his home. The police dispatcher on the other end of the line told Det. Swierk that a patrolman had found a despondent female wandering on Aquidneck Avenue in Middletown; according to the woman, she had been poisoned and raped at the Bay Willows Inn on Bay Avenue (which is not far from Aquidneck). Det. Swierk then rendezvoused with his partner, Detective Kelly Mitchell, at the Middletown police station, and the two headed off to the Bay Willows Inn.

Three officers were already at the scene when Swierk and Mitchell arrived at about 4 a.m. The detectives were ushered to room seven, where the alleged rape had occurred. The external door was open, revealing a sitting room and, further along, an internal door, which had somehow freed itself from its hinges, leading to the bedroom. From their position in the sitting room, the detectives observed that the bedroom was littered with personal belongings and drug, paraphernalia. One of the officers handed Det. Swierk a receipt showing that the room had been rented to Antone. Taking the receipt, Swierk and Mitchell left to find Antone and obtain his consent to search the motel bedroom.¹

The detectives' testimony does not provide specifics, but it appears that Det. Swierk procured a list of Antone's possible addresses from the Newport police station. The list took the detectives on a not-so-scenic tour, of Newport, with stops at Bradford and Chapel Streets, Newport Hospital (to call on the professed rape victim for more information), and finally Marcus Wheatland Boulevard. Not yet dawn, Det. Swierk, with Det. Mitchell beside him, began canvassing Marcus Wheatland. Jane Baker, who occupied unit 72B in a row of townhouse-like apartments, recalled a rousing, knock at some point that morning. (Subsequent testimony revealed that it was between 5 and 5:30 a.m.) Although she did not open the door, Ms. Baker told Det. Swierk that he had the wrong address and returned to her bedroom on the second floor. Through an open window, she testified that she heard one of the detectives knock on unit 72C, which was right next-door, with no response. The detectives proceeded to unit 72D (two units away but still part of the same structure). When one of them rapped on the door to unit 72D, Antone answered.

The parties dispute the critical elements of what happened next. Det. Swierk testified that Antone, fully clothed, opened the door about a single body width. Det. Swierk identified himself and Det. Mitchell, both of whom were not in uniform, as Middletown police officers investigating a sexual assault. Det. Mitchell said nothing but proffered her badge as well. Det. Swierk asked Antone if he had rented a room in Middletown the night before. Antone answered affirmatively. Det. Swierk then asked Antone if he would accompany them to the Middletown police station. According to both detectives, Antone agreed to do so and then, simultaneously opening his door further, said "Come on. I have to get my shoes." When Antone began to walk inside, Det. Swierk noticed that Antone was wearing shoes already. Becoming somewhat concerned (Det. Swierk hypothesized that Antone could have been trying to get a gun), Det. Swierk followed Antone into the living-room area of the apartment and asked where he was going. According to Det. Swierk, Antone's response was mumbled, so he followed Antone into the kitchen, where Antone explained that he was getting a pizza out of the microwave. Meanwhile, Det. Mitchell, who entered the apartment with Det. Swierk but remained in the livingroom, spotted what appeared to be cocaine in plain view on the coffee table and television stand. Det. Mitchell pointed to the cocaine when Det. Swierk and Antone emerged from the kitchen. When asked, Antone admitted that the cocaine was his. At that point, Antone was told to take a seat on the couch while one of the detectives contacted the Newport Police Department for assistance. Within a short time, the Newport police arrived, took Antone into custody, and transported him to the Newport police station.

Antone, who took the stand, testified to a different set of facts leading up to the arrest. After he answered the door, and Det. Swierk gave his spiel, Antone testified that he agreed to go to the police station but said "hold on while I get my keys." Ms. Baker, eavesdropping from her recessed bedroom window some feet away, confirmed Antone's account; she testified that Antone said "hold on, let me get my keys" (during direct) or "hold on, I need to get my keys" (during cross). As Antone began to walk toward the kitchen, where he kept his keys, he noticed that both officers had entered the livingroom, prompting him to say "I told you to hold on." Antone grabbed his keys from the kitchen and hurried back to the livingroom. When he returned to the livingroom, Antone saw Det. Mitchell standing over the coffee table pointing at a can with a piece of plastic protruding from the lid. Det, Swierk said "No. Let's go. We're not here for this," but when Det. Mitchell removed the lid and found cocaine, Det., Swierk remarked "Now we got to call the Newport police." Antone then took a seat on the couch, admitted the cocaine was his (after Det. Mitchell asked), and was taken into custody when the Newport police arrived.

The Newport police brought Antone down the street (literally) to the Newport police station, and placed him in the cell block. At about 7:30 a.m., Detective Mark Mateos, of the Newport Vice Narcotics Unit, escorted Antone from the cell block to the narcotics room, and read him his Miranda rights. Antone signed a Miranda form and consented, in writing, to the search of unit 72D. Antone also agreed to talk with Det. Mateos, who, with Antone's knowledge and consent, taped and later transcribed the interview. During the recorded interview, Antone made various confessions but denied that he gave the Middletown police consent to enter his apartment. Det. Mateos testified that the tape, which was played aloud during the suppression hearing, accurately reflected what Antone said during the recorded interview; however, he noted that Antone gave a different response (viz., that he had, in fact, given the Middletown police consent to enter his apartment)` earlier during the unrecorded portion of the inter view. Antone denied this, and testified that, other than agreeing to smoke a cigarette, he did not answer any questions before the recording. Antone also testified that he did not sign the consent-to-search form, or that he was under the mistaken impression that he was consenting to the search of room seven at the Bay Willows Inn.

Later that morning, Det. Mateos, with the assistance of another Newport police detective, obtained a warrant to search unit 72D. Beyond the cocaine found earlier, the search yielded nearly 200 grams of cocaine, drug ledgers and paraphernalia, video surveillance devices, a police scanner and radio frequency detector, and $3,809 in cash. During a second interview conducted after the search, Antone confessed to distributing crack cocaine. A. federal grand jury indicted Antone on October 4, 2006.

II. Discussion

The burden of proving that the tangible and testimonial evidence obtained by the Middletown and Newport police was not the product of a Fourth Amendment violation lies with the government. To satisfy its burden, the government posits three separate theories, which the Court will discuss in turn.

A. Valid Consent

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); see also Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) ("[T]he `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'") (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). For this reason, a warrantless intrusion into someone's home is presumptively unreasonable under the Fourth Amendment, Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

One such exception is for entries authorized by valid consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct 2041, 36 L.Ed.2d 854 (1973); United States v. Laine, 270 F.3d 71, 74-75 (1st Cir.2001). When this exception is in play, the government has the burden to prove, by a preponderance of the evidence, United States v. Schaefer, 87 F.3d 562, 569 (1st Cir.1996), two factbound elements. The first, often referred to as consent-in-fact, United States v....