United States v. Kimball

• Decision Date: 07 February 1983
• Docket Number: Crim. No. 82-00020-B.
• Citation: 555 F. Supp. 1366
• Parties: UNITED STATES of America v. Robert T. KIMBALL and David M. Emery, Defendants.
• Court: U.S. District Court — District of Maine

555 F. Supp. 1366

UNITED STATES of America v. Robert T. KIMBALL and David M. Emery, Defendants.

Crim. No. 82-00020-B.

United States District Court, D. Maine.

February 7, 1983.

William H. Browder, Jr., Asst. U.S. Atty., Bangor, Me., for plaintiff.

Robert Levine, Rockland, Me., Paul Gibbons, Camden, Me., for defendants.

MEMORANDUM DECISION^*

CYR, District Judge.

The defendants seek to suppress certain evidence¹ obtained in connection with their arrests for alleged violations of various laws relating to firearms.²

FACTS

At approximately 9:15 p.m. on February 20, 1982, Sgt. Perley Sprague, a marine patrol officer of the Maine Bureau of Marine Resources, received a report that shots were being fired in the vicinity of Lasell Island, located about six miles east of Camden in Penobscot Bay. Sprague promptly proceeded to a point on the mainland nearer Lasell Island from where he could hear the sound of automatic weapon fire from the direction of Lasell Island.

Sprague dispatched Marine Patrol Officers John Fetterman and Jeffrey Gallagher to Rockland where they boarded a U.S. Coast Guard patrol boat which took them to a position 4,000 yards off Lasell Island, where Fetterman observed sporadic automatic weapon fire, as evidenced by "tracer" rounds, coming from the island.

At about 10:35 p.m., the patrol boat approached to within 400 yards of the island, from where Fetterman could see lights inside a cabin on the island. At this distance tracer rounds were seen coming directly at the patrol boat from the direction of the cabin. The patrol boat backed off to a distance of 700 yards and activated its blue light and its running lights. Tracer rounds were again seen coming from the direction of the cabin and Fetterman heard what sounded like bullets striking the water beside the patrol boat. The patrol boat continued to back off, first to 1,500 yards, then to 2,000 yards. Each time the lights of the patrol boat were activated Fetterman observed renewed bursts of gunfire coming directly at the boat from the cabin.

The patrol boat kept the island under constant surveillance until 2:00 a.m. the next morning, when the Coast Guard Cutter Snohomish arrived and established radar surveillance. No other vessel was detected approaching or departing the island.

Upon their return to Rockland aboard the patrol boat at approximately 4:00 a.m. on February 21, 1982, Fetterman and Gallagher met with Knox County Sheriff Massie, Sgt. Sprague, Marine Patrol Lieutenant Carroll, Marine Patrol Officer Peva, and Ralph Knowlton, a deputy sheriff and Town of Camden police officer. The officers discussed and formulated a general plan for approaching the cabin, which they correctly believed to be the property of the defendant Robert Kimball. Although they spoke with a state prosecutor by telephone, the officers made no request that either arrest or search warrants be obtained.

At about 6:00 a.m. the seven officers and an emergency medical technician boarded a Coast Guard search and rescue boat "44-footer" and proceeded to Lasell Island.

Lasell Island is about one mile long and one-half mile wide, with a small cove on its western side. Even at low tide the island can be reached only by boat. Kimball's cabin is situated near the cove, on land leased from the owner of the island, who also owns the only other dwelling on the island, a summer home. The summer home, which is about one-quarter mile from Kimball's cabin, was unoccupied at the time of this incident.

The temperature on the island that morning was 28°F and although there was a 20-knot wind the cove and the area near the cabin are somewhat sheltered. About two inches of snow had recently fallen on the island and there were occasional flurries that morning.

At about 7:30 a.m. the 44-footer entered the cove on the western side of the island. Officer Knowlton used a bullhorn to call Kimball out of the cabin, but there was no response. At 8:00 a.m. the 44-footer was tied up at the dock, which is pretty much directly in front of the main (front) entrance to the cabin. The only other boat at the dock was a lobster boat belonging to Kimball. Five officers got off the 44-footer and approached the cabin. Fetterman and Massie were armed with M-1 rifles; Knowlton with a 12-gauge shotgun; Peva with a semi-automatic M-16; and Sprague with a holstered side arm. The officers fanned out and approached the cabin cautiously with their shoulder weapons at the ready, finally positioning themselves facing the cabin in a semi-circle extending from either corner of the front side of the cabin.

Officer Knowlton, who was acquainted with Kimball, as was Sprague, identified himself and called for "Bobby" (Kimball) to come out of the cabin. Following the third request Kimball responded: "Wait'll I get my pants on." Kimball soon emerged through the front door, which is at the center of the front side of the cabin, and started down the steps. He was dressed in pants and a long-sleeved shirt, with only heavy, boot socks on his feet.

As many as four officers may have been visible to Kimball as he exited the cabin, including Sprague and Knowlton positioned at the front corner of the cabin to Kimball's right, Massie at the front corner to Kimball's left and Fetterman who was farthest from and more directly ahead of Kimball. Peva was beyond view, on a high knoll toward the rear of the cabin.

With his sidearm still in its holster, Sprague approached Kimball, while the other officers remained at their positions, firearms ready. As he approached Kimball, Sprague noticed numerous spent shells on the cabin steps. Kimball was placed under arrest, handcuffed, and immediately advised by Sprague of his Miranda rights.³ Sprague explained that the officers were there to investigate reports of gunfire in the area the previous evening. When asked if he was surprised, Kimball responded that he had "expected someone." But when asked if he knew anything about gunfire or about an automatic weapon, Kimball said he did not.

Upon being alerted to the presence of someone else inside the cabin, Sprague asked Kimball who else was inside. Kimball said that his girlfriend, Joni Dyer, was inside. Kimball was directed to tell Dyer to come out. When Dyer appeared at the front door, Sprague suggested that Kimball might want to ask her to bring out his boots. At Kimball's request, Dyer brought the boots, which the handcuffed Kimball put on, with Sprague's assistance. Dyer was allowed to go back inside the cabin. Sprague later adjusted Kimball's handcuffs to permit Kimball to urinate.

Sprague told Kimball that the officers wanted the automatic weapon and asked if Kimball would permit them to go inside the cabin to look for it. Kimball said he would rather not allow the officers inside. Sprague then informed Kimball that he had an "absolute right" to refuse entry, but that, if he did so, the other officers would be left on the island to secure the premises while Sprague returned to Rockland for a search warrant. Whereupon, Kimball agreed to allow the officers to look inside the cabin for the gun.

Although estimates of the length of time Kimball remained outside the cabin vary considerably, from about 5 minutes, according to Sprague, to between 15 and 20 minutes, according to Kimball, Officer Fetterman actually recorded a 17-minute interval, which the Court accepts as the more credible evidence of the maximum length of time Kimball remained outside. Kimball testified that he did not really feel very cold standing outside the cabin. In light of the limited discussion (and some "small talk") between Sprague and Kimball, and of the fact that Kimball did not feel very cold, though it was 28°F with some considerable wind, it seems most probable that Kimball remained outside more than five minutes, but less than 17 minutes.

Kimball entered the cabin first, followed by Sprague and Fetterman. Upon entering the cabin, Sprague was surprised to see the defendant Emery, who was also known to Sprague. Sprague immediately proceeded to advise Emery and Dyer, jointly, of their "Miranda" rights. When asked whether he understood his rights, Emery, who is 33 years old and a high school graduate, stated that he was well aware of his rights. Kimball told Emery that the officers were looking for the automatic weapon. Sprague said that it would be much "easier" if they showed him where the weapon was. Kimball nodded affirmatively to Emery. With Sprague following in close proximity, Emery went over to a sofa in the main room of the 24' × 30' cabin, reached behind the sofa, retrieved a Colt M-16 machine gun from under a blanket, and surrendered it to Sprague.

Kimball's handcuffs were then removed and Emery offered Sprague a cup of coffee, which he accepted. After some casual conversation with Kimball and Emery, Sprague again asked Kimball about the gunfire the night before. Kimball responded that he had fired several hundred rounds with the automatic weapon. Emery stated that he also had "ripped off a few" rounds. When asked how hard it was to obtain such a weapon, Emery said that if he had the money he could buy one in Boston. Both defendants emphatically denied any knowledge of the presence of a Coast Guard patrol boat the previous night. They also stated that Joni Dyer had not fired the weapon.

Sprague advised Kimball and Emery that they were under arrest for criminal threatening with a dangerous weapon, but that Dyer would not be arrested.

While preparations were underway to take the defendants to Rockland on the 44-footer, Kimball expressed concern about leaving his lobster boat unattended on the island and asked if Emery could be permitted to take the boat to Rockland. Sprague agreed, provided Emery was accompanied by two officers.

Prior to allowing Emery to board the lobster boat, Officer Gallagher made a cursory search inside the pilothouse of the boat, where he saw a holstered pistol hanging in open view two or three steps from where Gallagher...