United States v. Harrington

Decision Date31 August 2021
Docket Number19-cr-241-01-JL,Opinion 2021 DNH 138P
PartiesUnited States of America v. Francis Harrington
CourtU.S. District Court — District of New Hampshire

United States of America

Francis Harrington

No. 19-cr-241-01-JL

Opinion No. 2021 DNH 138P

United States District Court, D. New Hampshire

August 31, 2021

Joachim H. Barth, AUSA

Stanley W. Norkunas, Esq.



In advance of his trial on one count of possession with intent to distribute a controlled substance, see 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vi), defendant Francis Harrington filed a motion to suppress evidence.[1] The motion turns on whether the police conducted a constitutionally permissible detention and pat-down[2] search of Harrington, such that the resulting seizure of controlled substances from Harrington's person and inculpatory statement by Harrington can stand.

After an evidentiary hearing, additional briefing at the court's request, and oral argument, the court denied Harrington's motion. At Harrington's request, the court held a second evidentiary hearing on the suppression motion. That hearing did not change the court's ruling. This order will explain the bases for the court's denial of the suppression motion in greater detail. See, e.g., United States v. Joubert, 980 F.Supp.2d 53, 55 n.1 (D.N.H. 2014), aff'd, 778 F.3d 247 (1st Cir. 2015) (citing In re Mosley, 494 F.3d 1320, 1328 (11th Cir. 2007) (noting a district court's authority to later reduce its prior oral findings and rulings to writing)).[3]

As it did at the hearing, the court concludes that neither the controlled substances seized from Harrington's person nor his inculpatory statement must be suppressed. The police had ample suspicion of criminal activity to detain the vehicle in which Harrington was a passenger and extend that detention to continue their investigation. The officer also had sufficient reasonable suspicion of criminal activity and reasons to suspect that Harrington was armed and posed a danger to others to justify ordering him out of the vehicle and patting him down. Lastly, because Harrington's inculpatory statement was made in the context of a brief roadside investigatory detention, and not a custodial interrogation, it was not procured in violation of his Fifth Amendment right against self-incrimination.

I. Applicable legal standard

Harrington bears a threshold burden to show a Fourth Amendment violation in support of his motion to suppress. United States v. Young, 835 F.3d 13, 19 (1st Cir. 2016); see also Rakas v. Illinois, 439 U.S. 128, 132 n.1 (1978) (“The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.”). This includes the “burden of establishing that he was seized” or searched without a warrant. United States v. Fields, 823 F.3d 20, 25 (1st Cir. 2016). Once Harrington shows that a warrantless search or seizure occurred, the government bears the burden of proving, by a preponderance of the evidence, that the warrantless search or seizure was nevertheless lawful. See United States v. Matlock, 415 U.S. 164, 178 n. 14 (1974) (“[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.” (citing Lego v. Twomey, 404 U.S. 477, 488-89 (1972)); United States v. Schaefer, 87 F.3d 562, 569 (1st Cir.1996) (“The government bears the burden of proving by a preponderance of the evidence that” the consensual search exception to the warrant requirement applies).

II. Background

The court makes the following findings of fact based on the testimony and other evidence received at the suppression hearings. The government called Manchester Police Officer James Pittman as a witness at the suppression hearings. Harrington called no witnesses. The parties also entered several exhibits into evidence at the hearings.

On August 22, 2019, at approximately 8:30 A.M., Officer James Pittman of the Manchester Police Department responded to an anonymous call requesting that an officer check the condition of two males who were reportedly passed out in a Chevrolet Impala.[4] The caller reported witnessing the two individuals exit and return to the vehicle prior to passing out.[5] The vehicle was parked across from the Red Arrow Diner at 61 Lowell Street in Manchester, New Hampshire, a commercial area with some apartments nearby.[6] The Manchester Police Department has long considered this a high volume area for both crime and drug activity.[7]

Officer Pittman was the first to arrive at the location.[8] He located the vehicle, parked behind it, and approached the driver's side.[9] Within 30-60 seconds of Officer Pittman's arrival, emergency medical personnel also arrived on the scene.[10] Officer Pittman observed the driver sitting in the vehicle, appearing to be sleeping with his chin touching his chest.[11] The officer also noticed a second occupant who appeared to be sleeping in the passenger seat; this occupant was later identified as the defendant, Francis Harrington.[12]

Officer Pittman approached the driver and woke him up.[13] The driver appeared lethargic, and his eyes were bloodshot.[14] Officer Pittman asked the driver to step out of the vehicle.[15] The driver immediately complied, and when he exited the vehicle, Officer Pittman noticed that the driver's pupils looked glassy and pinpointed.[16] Based on his observations and experience, Officer Pittman believed that the driver may have been under the influence of opioids or other narcotics.[17]

Officer Pittman then conducted a pat-search of the driver and discovered no weapons.[18]The driver denied being impaired or otherwise engaging in any illegal activity, and the pat search did not uncover anything.[19] As Officer Pittman was interacting with the driver, emergency medical personnel were speaking with Harrington on the passenger side of the vehicle.[20]

Next, Officer Pittman approached the passenger side of the vehicle to assist the medical personnel with Harrington.[21] One of the medical responders told Officer Pittman that Harrington was not acting normal; the medical responder nodded to Officer Pittman as he approached, suggesting to Officer Pittman that the medical personnel were uncomfortable dealing with Harrington without the police there.[22] Officer Pittman attempted to speak to Harrington, who appeared lethargic. Harrington either delayed his reaction to, or did not answer, the officer's verbal contact.[23] Harrington's eyes were half shut and he was swaying from side to side.[24] Harrington also reached around inside the vehicle and reached between the seats in the center console area of the vehicle.[25]

Officer Pittman asked Harrington to step out of the vehicle.[26] Harrington delayed exiting the vehicle, continued to sway from side to side, and reached down to the floor in the area between the passenger seat and the passenger side door.[27] As Harrington exited the vehicle, he continued to demonstrate a slow and lethargic physical state.[28] Officer Pittman next instructed Harrington to place his hands on top of his head.[29] Harrington responded by putting one hand up, but he moved his other hand toward his pocket.[30] Officer Pittman grabbed Harrington's noncompliant arm, placed it on top of Harrington's head, and began to pat Harrington down.[31]While running his hand over the front of Harrington's waistband, Officer Pittman felt a large, solid object, which he believed could have been a weapon.[32] He asked Harrington what the object was, and Harrington replied that it was “drugs.”[33]

Officer Pittman then handcuffed Harrington and removed the object, which appeared to be a large plastic bag containing four brown baggies with a brownish-tan substance.[34] Based on his training and experience, Officer Pittman suspected that the substance was either fentanyl or heroin.[35] Officer Pittman then placed Harrington under arrest.[36] Manchester Police later sent the object recovered from Harrington during the search to the state lab for testing.[37] Lab results confirmed that it contained approximately 200 grams of heroin and fentanyl.[38] On November 27, 2019, a grand jury charged Harrington with Possession with Intent to Distribute a Controlled Substance, 21 U.S.C. §§ 841(a)(1) & (b)(1)(B)(vi).[39]

III. Analysis

Harrington challenges all aspects of his encounter with Officer Pittman. First, he argues that Officer Pittman's initial detention of the vehicle and its occupants was not justified and therefore violated the Fourth Amendment. He next argues that Officer Pittman violated the Fourth Amendment by impermissibly extending his engagement with the vehicle. He further argues that Officer Pittman's decision to order him out of the vehicle and pat-frisk him was not constitutionally permissible. Finally, Harrington argues that his statement to Officer Pittman that he possessed drugs should be suppressed because it was the unlawful product of a custodial interrogation, without the benefit of the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). The court addresses each argument in turn.

A. The initial engagement with the vehicle

Although Officer Pittman did not “stop” the vehicle at issue because it was parked with occupants sleeping, this court will assume that his encounter with the vehicle and its occupants was an investigatory stop or detention, and therefore a seizure, within the meaning of the Fourth Amendment. See Brendlin v. California, 551 U.S. 249, 251 (2007) (holding that “[w]hen a police officer makes a traffic stop . . . a passenger is seized as well and so may challenge the constitutionality of the stop”); Delaware v. Prouse, 440 U.S. 648, 653 (1979) (“[S]topping an automobile and detaining its occupants constitute a ‘seizure' within the meaning of [the Fourth] Amendmen[t], even though the purpose of the stop is limited and the resulting detention quite brief.”) (citations omitted); see also United States v. Fields, 823 F.3d 20...

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