U.S. v. Kruger, No. CR. 00-88-P-C.

• Citation: 151 F.Supp.2d 86
• Decision Date: 26 June 2001
• Docket Number: No. CR. 00-88-P-C.
• Parties: UNITED STATES of America v. Kurt KRUGER, Defendant.
• Court: U.S. District Court — District of Maine

151 F.Supp.2d 86

UNITED STATES of America v. Kurt KRUGER, Defendant.

No. CR. 00-88-P-C.

United States District Court, D. Maine.

June 26, 2001.

Jonathan A. Toff, Office of U.S. Atty., Portland, ME, for U.S.

Peter E. Rodway, Rodway & Horodyski, Portland, ME, for Kurt A Kruger, defendant.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

In this case, Defendant Kurt Kruger faces charges of unlawful possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846; unlawful engagement in a conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); concealment of the illicit use of controlled substances in connection with the acquisition of five firearms, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(1)(B); knowing and unlawful transportation in interstate commerce of firearms as a user of a controlled substance, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2); and unlawful carrying of the firearms in relation to the alleged drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1). See Indictment (Docket No. 1). Now before the Court is Kruger's motion to suppress evidence that the Government obtained during a search of his apartment on the night of March 16, 2000. See Motion to Suppress Evidence (Docket No. 4); Memorandum in Support of Motion to Suppress Evidence (Docket No. 15). Specifically, Kruger moves to suppress the following items of evidence: a statement that he made identifying the location of cocaine in his apartment; the cocaine that the police officers discovered in the pocket of a jacket inside a closet in his apartment; a detailed statement regarding his involvement in the alleged crimes, made after the police officers' discovery of the cocaine; and all other evidence discovered in his apartment during the search.¹ For the reasons that follow, the Court will grant Kruger's motion with respect to the statement identifying the location of the cocaine and the cocaine found in the jacket pocket, and it will deny his motion with respect to his second statement and the other evidence discovered in his apartment during the search.

FACTS

Due to unexplained contradictions in the testimony of the seven officers who testified during the suppression hearing² and the inability of some of the key witnesses to remember crucial details, the Court is unable to ascertain exactly how the events unfolded on the night of March 16, 2000.³ The Court will, therefore, set forth the relevant facts as it understands them from the record and, where relevant, highlight factual questions that remain unresolved after the suppression hearing.

The events leading up to the discovery of the challenged items of evidence began when Joseph Robitaille, Special Agent for the United States Bureau of Alcohol, Tobacco, and Firearms (hereinafter "ATF") received a call on the afternoon of March 16, 2000, from an employee at the Kittery Trading Post. This employee reported to Robitaille that an individual named Kurt Kruger had purchased five firearms from the Kittery Trading Post the night before. Reported details about the type and low quality of the firearms raised Robitaille's suspicion about the purchase. He obtained the address that Kruger had provided to the Kittery Trading Post, 47 North Street, Westbrook, Maine, and he subsequently called the City of Westbrook Police Department.

Robitaille spoke with Detective Sergeant Lyons at the Westbrook Police Department, and Lyons indicated that he considered 47 North Street to be in a high crime area and subject to a great deal of drug activity. Lyons told Robitaille that he would have Kenneth Viger, a detective assigned to work with the Maine Drug Enforcement Association (hereinafter "MDEA"), contact Robitaille to assist in the investigation of the matter. Robitaille then conducted a criminal background check on Kruger, and learned that Kruger's criminal record consisted of a series of traffic violations and an arrest in connection with a domestic dispute. Robitaille also spoke with Viger on the telephone and learned that Viger was occupied with other matters that day. Robitaille continued to collect background data and, later that day, contacted Lyons for further assistance.

At approximately 3:00 that afternoon, Robitaille met with Lyons at the Westbrook police station. The two plainclothed officers then decided to check out 47 North Street, the address that Kruger had reported to the Kittery Trading Post. The officers drove to 47 North Street in Robitaille's unmarked car, rang the doorbell, and spoke with an individual named Brenton Blais, who stated that he did not live at the apartment but sometimes stayed there. Blais told the officers that Kruger did live at the apartment, but that he was not there at the moment because he was at work. The officers told Blais that they would be returning to the Westbrook Police Department, and they asked Blais to tell Kruger that he should call them when he returned to the apartment.

Robitaille and Lyons went back to the Westbrook police station and waited there for Kruger's call. After waiting for a short while, they decided to return to the apartment. They arrived at the apartment for the second time sometime around 4:00 p.m. Kruger was still not at the apartment, but Blais and another individual, Adam Lane, were. This time, the officers spoke with Blais and Lane. During this conversation, the officers learned that Blais was on probation, under the supervision of Allen Wright, Probation and Parole Officer for the State of Maine Department of Corrections. The officers told Blais and Lane that they wanted to talk to Kruger about some stolen property and that he should contact them at the Westbrook police station. Although the officers were truly interested in conversing with Kruger about the previous night's firearms sale, they had decided to make up the story about stolen property because they were concerned that if Kruger knew the real reason for their visit, he might destroy or dispose of the firearms. The officers then returned to the Westbrook police station and waited for Kruger's call. At approximately 5:00 that evening, the officers received a call from Kruger. Kruger agreed to meet with the officers at the station, and arrived there some time between 5:00 and 5:20 p.m. The two officers interviewed Kruger in Lyons's office. The officers began the interview with a general conversation about stolen property in the Westbrook area. Kruger volunteered that he had purchased some stereo equipment from an individual named David LeClair that may have been stolen. At some point during this interview, the conversation shifted to the topic of Kruger's firearms purchase. Kruger stated that he collected cheap firearms, and that he had purchased five firearms from the Kittery Trading Post the night before. Kruger told the officers that, upon testing the firearms after the purchase, he had discovered that three of the firearms did not work. Kruger stated that he intended to return those firearms to the Kittery Trading Post that night, and that they were, therefore, in the trunk of his car in the parking lot. Kruger reported that the other two firearms had been stolen, and he willingly filled out, at the officers' suggestion, a stolen property report for those firearms. After some hesitation, Kruger also told the officers that Blais had been involved in the purchase of the firearms.

At some point during the interview, the officers informed Kruger that they would like to conduct a consent search of his apartment in order to determine whether the pieces of stereo equipment that he had purchased from LeClair were, in fact, stolen. Kruger stated that he did not mind if the officers searched his apartment for stolen property, and he signed a "Westbrook Police Consent to Search" form. See Gov't Ex. 1. The form that Kruger signed states:

I have been requested to consent to a search of the above listed items or area which are located at the above mentioned location. I have also been advised of my constitutional rights to refuse such consent and to require that a search warrant be obtained prior to any search. I have been further advised that if I do consent to a search, any evidence found as a result of such search, can be seized and used against me in any court of law and that I may withdraw my consent to search at any time prior to the conclusion of the search.

After having been advised of my constitutional rights as stated above, I hereby voluntarily waive those rights and consent to a search. I authorize the above listed law enforcement officer and anyone else he/she deems necessary to conduct a complete search of the above described item or area.

Gov't Ex. 1. The form contains a space for filling in the address of the search location; it is filled in with the address "47 North Street, Apt. # 1, Westbrook Maine." The form also contains spaces for filling in the "Item or Area to be Searched (Owner to Initial Last Item or Area)" and "Location of Item or Area to be Searched"; these spaces are both filled in with the words "Entire Apartment." Either Kruger read and indicated that he understood the form, or one of the officers read the form to him. Kruger did not make any written modifications to the form. At the time that Kruger signed the form, Lyons had represented to him that if Kruger refused to give his consent to the search, the officers would have to seek a warrant to search the premises. See T1 at 63-64, 85-86, 202; T2 at 62.⁴

Before leaving for 47 North Street to conduct the search, the officers took a few preparatory and precautionary measures. The officers contacted Wright, Blais's probation officer, Thomas Roche, an officer with the Westbrook Police Department, and Viger to accompany them on the search. The officers also conducted a search of Kruger's car in the parking lot, frisked Kruger, and seized Kruger's firearms from the...