United States v. Casellas

• Decision Date: 25 February 2016
• Docket Number: Criminal No. 15-cr-178-LM
• Citation: 149 F.Supp.3d 222
• Parties: United States of America v. Jose Casellas, Zakee Stuart-Holt, Jeannette Hardy
• Court: U.S. District Court — District of New Hampshire

149 F.Supp.3d 222

United States of America

v.Jose Casellas, Zakee Stuart-Holt, Jeannette Hardy

Criminal No. 15-cr-178-LM

United States District Court, D. New Hampshire.

Signed February 25, 2016

Georgiana L. Konesky, US Attorney's Office, Concord, NH, for United States of America.

ORDER

Landya McCafferty, United States District Judge

On June 22, 2015, Jeannette Hardy was assaulted by an unknown man as she attempted to enter her apartment building and then was shot by him as she escaped and ran outside. In the aftermath of the shooting, Hardy made statements to law enforcement officers and signed a consent form, authorizing them to search her apartment. While searching Hardy's apartment, which she leased with Zakee Stuart-Holt, officers discovered a large amount of what they believed to be heroin. Law enforcement officers subsequently executed a second search of the apartment after obtaining a warrant. Hardy and Stuart-Holt have been charged with conspiracy to distribute and possess with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)

. Both Stuart-Holt and Hardy move to suppress evidence seized during the searches of the apartment. Hardy also moves to suppress certain statements she made following the shooting.

On January 14 and 15, 2016, the court held an evidentiary hearing on the motions to suppress. At the hearing, the following Manchester Police Department (“MPD”) police officers testified: Sergeants Michael Bergeron and Robert Bellenoit; Detectives Todd Leshney, Andrew Fleming, Derek Sullivan, Thomas DuBois, and Robert Tremblay; and Patrolman Shaun McKennedy. Hardy and Stuart-Holt also called two medical professionals: Dr. Michael Edwards, an emergency room physician, and Ann Berthiaume, a social work case manager. The court held the record open for a week so that Hardy and Stuart-Holt could depose Dr. Robert Parisien, a physician who performed surgery on Hardy's hand. Hardy and Stuart-Holt submitted a copy of Dr. Parisien's deposition to the court. The court heard oral argument on the motions to suppress on January 22, 2016.

FACTS

I. The Shooting

On June 22, 2015, Jeannette Hardy left her apartment building through the front door to walk her dog. During the walk, Hardy spoke on the phone with Zakee Stuart-Holt, who was incarcerated at the Merrimack County House of Corrections (“MCHC”). While Hardy was out on her walk, an unknown man entered the front door of her apartment building. When Hardy returned and stepped through the door to her building, the unknown man attacked her. Hardy was still on the phone with Stuart-Holt at the time. As Hardy attempted to flee, her attacker shot her in the hand. Hardy then ran down the street to a convenience store. A video surveillance camera that captured the attack shows a timestamp of 9:07 p.m.

At about 9:08 p.m., the MPD received several 911 calls reporting a gunshot and a woman screaming. The MPD dispatch log shows that police officers arrived at Hardy's apartment building roughly two minutes later. Emergency Medical Services (“EMS”) located Hardy at the convenience store. At 9:22 p.m., EMS transported Hardy to Catholic Medical Center in Manchester, New Hampshire by ambulance. Patrolman Shaun McKennedy accompanied Hardy to the hospital.

Shortly after the shooting, officers contacted Hardy's landlord, who informed them that Hardy lived in the second-floor unit of a two-unit apartment building. The first-floor unit was unoccupied. While standing outside the building in the aftermath of the shooting, an officer reported seeing movement in a window of the unoccupied first-floor unit.

At about 11:42 p.m., after conducting witness interviews and an extensive investigation outside of Hardy's apartment building, officers entered the building to look for Hardy's attacker.¹ They began by checking the empty first-floor apartment and common attic and basement. During the protective sweep, officers used a dog that was trained to detect both people and narcotics. While clearing the attic, the dog alerted to a box for a Keurig coffee maker. The officer handling the dog, Chad Tennis, noticed a strong odor of marijuana coming from the box. Tennis left the box in place. The officers then entered Hardy's second-floor apartment and completed the search of the building. No person was found in the building.²

II. Officers Obtain Consent to Search Hardy's Apartment

In the meantime, Hardy was in the emergency room at the hospital. Hardy arrived at the hospital at 9:37 p.m. Dr. Michael Edwards examined Hardy at 9:45 p.m. and described her as “emotionally upset.” At that time, a nurse noted that Hardy was “anxious” and “in distress due to pain,” but also found her “cooperative [and] alert.” Hardy described her pain as sharp, constant, and “10” on a scale of 1 to 10. Hardy's medical record shows that, at 9:50 p.m., the hospital gave her morphine

sulfate, which is a pain medication. Side effects of that medication include sleepiness and confusion.

At about 9:45 p.m., two officers from the MPD violent crimes unit, Sergeant Michael Bergeron and Detective Todd Leshney, joined McKennedy at the hospital. When Bergeron and Leshney arrived, Hardy was in the emergency room sitting upright in a hospital bed, with blood on her clothes, and with her hand bandaged. McKennedy described Hardy as “handling [the situation] very well.” Although Hardy was visibly upset and in pain, McKennedy recalled that she was easy to speak to and could recollect what had happened.

Hardy told Leshney and Bergeron that the attacker was inside the common hallway of her apartment building when she returned from her walk, and that she had a surveillance system that would have captured the attack. Hardy informed the officers that the footage was stored on a digital video recorder (“DVR”) located on a television stand in a bedroom of her apartment. During this conversation, Bergeron was “struck” by how “calm” Hardy appeared. Leshney informed Hardy that officers at her apartment building were preparing to search the building for her attacker.

About 15-20 minutes after he arrived at the hospital, Leshney took a telephone call at the nurses' station from someone claiming to be Hardy's husband. Leshney asked the caller for his name several times before the caller hung up. Several minutes later, MCHC Sergeant Matthew Lamanuzzi called the nurses' station. Lamanuzzi told Leshney that inmate Stuart-Holt was concerned for Hardy's welfare because Stuart-Holt was on the phone with Hardy when she was shot. Leshney asked Lamanuzzi to have Stuart-Holt call him back on his cell phone. Leshney testified that he wanted to speak with Stuart-Holt to gather information about the shooting and the surveillance system.

After speaking with Lamanuzzi, Leshney and Bergeron asked Hardy for consent to search her apartment for evidence of the shooting and to collect the DVR. Leshney presented Hardy with a standard MPD consent form that authorized officers to collect “any letters, papers, materials or other property which they may desire.” Hardy asked Leshney about the meaning of that phrase, and he told Hardy that their search of the apartment would focus on looking for evidence of the shooting and collecting the DVR. Leshney also explained that if Hardy did not consent to a search of her apartment, he would apply for a warrant. Leshney explained that a judge might not approve the application, but if the judge did, the MPD would search her apartment pursuant to the warrant. Hardy then signed the consent form at approximately 10:15 p.m.

At 10:18 p.m., Dr. Edwards described Hardy as “oriented to person, place and time,” which means that she knew what time it was, who she was, and where she was. In those same notes, Dr. Edwards indicated that Hardy's affect was “anxious,” her judgment was “normal,” her remote and recent memory were “normal,” but her concentration was “poor.”

At some point after Hardy signed the consent form, Stuart-Holt called Leshney's cell phone and asked to speak with Hardy. Leshney refused to allow Stuart-Holt to speak with Hardy because, as Leshney explained, he had a policy of prohibiting witnesses from speaking to one another during an investigation. Since Hardy was on the telephone with Stuart-Holt during the shooting, he did not want to permit them to speak to each other while the investigation was underway. During the telephone call, Leshney asked Stuart-Holt about the DVR. Stuart-Holt informed Leshney that the surveillance footage was stored off-site and could be accessed remotely. After speaking with Stuart-Holt, Leshney determined that Stuart-Holt did not have useful information about the surveillance system because the information Stuart-Holt gave him directly contradicted specific and credible information he had obtained from Hardy. Additionally, Stuart-Holt did not know the login and password to access the system remotely and could not identify who had set up the system.

Leshney told Stuart-Holt that the police intended to enter the apartment to collect the DVR pursuant to Hardy's consent to search. Stuart-Holt said nothing to indicate that he objected to the police entering the apartment.³

After Leshney spoke with Stuart-Holt, Hardy's landlord, Art Gatzoulis, who is also a criminal defense lawyer, arrived at the hospital and asked to speak with Hardy. Gatzoulis informed the officers that he was there in his capacity as Hardy's landlord and not as her attorney. After checking with medical staff, the detectives allowed Gatzoulis to meet privately with Hardy.

After Hardy met with Gatzoulis, Leshney asked both Hardy and Gatzoulis if they were “all set” with the consent to search. Hardy replied in the affirmative. Gatzoulis made a noncommittal gesture which Leshney interpreted as “I'm not her lawyer, don't be asking me that.” McKennedy, Leshney, and Bergeron left the hospital at approximately midnight.

According to medical records, shortly after midnight, Dr. Suresh Pothuru evaluated Hardy for withdrawal from heroin....