United States v. Wetmore, Case No. 1:20-cr-00084-JL

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
• Writing for the Court: Joseph N. Laplante, United States District Judge
• Citation: 560 F.Supp.3d 591
• Parties: UNITED STATES of America v. Philip WETMORE
• Docket Number: Case No. 1:20-cr-00084-JL
• Decision Date: 28 May 2021

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UNITED STATES of America
v.
Philip WETMORE

Case No. 1:20-cr-00084-JL

United States District Court, D. New Hampshire.

Signed May 28, 2021

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Anna Z. Krasinski, Assistant US Attorney, Seth R. Aframe, US Attorney's Office, Concord, NH, for United States of America.

MEMORANDUM ORDER

Joseph N. Laplante, United States District Judge

In advance of his trial on one count of possessing a firearm as a prohibited person, see 18 U.S.C. §§ 922(g)(1) and 924(a)(2), defendant Philip Wetmore filed a motion to suppress evidence.¹ The motion turns on whether the police conducted a constitutionally permissible detention and pat-search² of Wetmore, such that the resulting seizure of a firearm from Wetmore's person can stand.

After an evidentiary hearing, the court granted Wetmore's motion.³ At the court's invitation based on an issue that went un-briefed by counsel for both parties, the government has moved for reconsideration of the court's ruling,⁴ and the parties engaged in supplemental briefing as part of the reconsideration motion.⁵ After careful consideration of this supplemental briefing, the motion for reconsideration is denied. This order will explain that decision and set forth the bases for the court's decision to grant the Wetmore's 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

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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).⁶

I. Applicable legal standard

Wetmore 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, 99 S.Ct. 421, 58 L.Ed.2d 387 (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 Wetmore shows that a warrantless search or seizure occurred, the government bears the burden of showing that the warrantless search or seizure was nevertheless lawful. United States v. Winston, 444 F.3d 115, 123–24 (1st Cir. 2006) ; United States v. Acosta-Colon, 157 F.3d 9, 14 (1st Cir. 1998).

As for the government's reconsideration motion, reconsideration of an order is "an extraordinary remedy which should be used sparingly." Palmer v. Champion Mtg., 465 F.3d 24, 30 (1st Cir. 2006) (quotation omitted). Reconsideration is therefore "appropriate only in a limited number of circumstances: if the moving party presents newly discovered evidence, if there has been an intervening change in the law, or if the movant can demonstrate that the original decision was based on a manifest error of law or was clearly unjust." United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009). A party may not use a motion for reconsideration "to undo its own procedural failures" or "advance arguments that could and should have been presented earlier." Id. And a motion for reconsideration is not "a mechanism to regurgitate old arguments previously considered and rejected." Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014) (internal quotation marks omitted).

II. Background

The court makes the following findings of fact based on the testimony and other evidence received at the suppression hearing.⁷ The government called Merrimack Police Officers Robert Maglio and Jordan Miranda as witnesses at the suppression hearing. Wetmore called no witnesses. The parties also entered six exhibits into evidence at the hearing.

At approximately 11:30 p.m. on February 15, 2020, Merrimack Police Officer Robert Maglio stopped at the Rapid Refill gas station on Peach Tree Lane in Merrimack to refuel his personal vehicle while on his way home from work.⁸ Officer Maglio had just worked the 3 p.m. to 11 p.m. patrol shift and was off-duty at the time.⁹ After he finished fueling his vehicle, Officer Maglio noticed that a blue Hyundai Elantra sedan had backed out of a parking spot by the storefront and blocked his vehicle from leaving the pump.¹⁰ Officer Maglio noticed that the Hyundai was occupied by a male driver wearing a beanie hat

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and over-ear headphones, as well as a female passenger.¹¹

The Hyundai continued to block both Officer Maglio's vehicle and the way of travel in front of the store for 20 to 30 seconds.¹² To get the Hyundai to move, Officer Maglio entered his vehicle, started the engine, and turned on the lights.¹³ The Hyundai continued to block Officer Maglio from leaving.¹⁴ With his headlights illuminating the interior of the Hyundai, Officer Maglio observed that the male driver's eyes were wide open.¹⁵ The driver appeared to be making furtive movements and repeatedly shaking or snapping his head around, alternating between looking at Officer Maglio's vehicle and looking at the female passenger.¹⁶ Officer Maglio understood that jerking movements, wide open eyes, and delayed or limited reactions to surroundings suggested possible impairment on drugs.¹⁷

After another 20 to 30 seconds, the vehicle began to move.¹⁸ The Hyundai approached the gas station exit, stopped and paused, and then advanced around the back of the building.¹⁹ The vehicle pulled up to the intercom at the Burger King drive-thru, a business adjacent to the Rapid Refill station.²⁰ The Burger King appeared closed at the time.²¹ The driver and passenger door opened and closed.²² After about 30 seconds, the vehicle exited the lot without taking anything from the drive-thru.²³

The Hyundai proceeded onto Continental Boulevard, traveling approximately 200 yards before turning left into the parking lot of a closed business.²⁴ The vehicle parked in the lot for a minute or two before it pulled out and took a right toward Greeley Street.²⁵ Officer Maglio reported his observations of the vehicle to the on-duty patrol supervisor to make the supervisor aware of the situation and send an on-duty patrol officer to investigate.²⁶ The vehicle proceeded in an indirect, stop-and-start travel pattern,²⁷ though Officer Maglio did not observe any speeding, marked lane violations, or other motor vehicle violations.²⁸ Officer Maglio followed the vehicle until it entered the Quality Inn parking lot on Daniel Webster Highway, relayed this last location to Officer Jordan Miranda (the responding on-duty patrol officer), and left the area.²⁹

Officer Miranda began his shift around

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11:00 p.m.³⁰ During roll call, Officer Miranda heard Officer Maglio's call to the on-duty supervisor on speaker phone describing Officer Maglio's observations of the Hyundai and a potential male impaired driver and learned that the vehicle's last location was at the Quality Inn.³¹ Officer Miranda departed the station and arrived at the Quality Inn in his marked cruiser at approximately 11:40 p.m. and located the Hyundai, which was parked at a slight angle and facing into a parking space near the back of the parking lot.³² Officer Miranda backed his cruiser into a spot approximately 50 feet away where he could observe the vehicle with minimal obstruction.³³ Officer Miranda cracked his window so that he could listen in on the Hyundai.³⁴ The vehicle lights were on and a female – later identified as Falynne St John – occupied the driver's seat.³⁵ At this time, Officer Miranda did not know if there was a second person in the car.³⁶

After about ten minutes, the Hyundai backed out of the spot and promptly pulled back into the spot.³⁷ The vehicle did this one or two more times.³⁸ Officer Miranda then observed St John stop the vehicle, exit the driver's seat, grab a bag from the backseat, and begin walking toward the entrance of the hotel.³⁹ Through the vehicle's back window, he saw a male – later identified as the defendant, Philip Wetmore – move into the vacated driver's seat from a different location inside the vehicle.⁴⁰ Wetmore backed the Hyundai out of the parking space and began driving toward the hotel exit, the same direction in which St John was walking.⁴¹

Officer Miranda momentarily lost sight of the vehicle but noticed it reappear when it reversed and began idling in the middle of the parking lot.⁴² St John walked back toward the vehicle, and Wetmore shifted into drive and attempted to maneuver around her.⁴³ St John then stepped in front and blocked the path of the vehicle.⁴⁴ Wetmore brought the vehicle to a stop.⁴⁵ Concerned that the situation might potentially "turn into something more," Officer Miranda activated his cruiser lights and pulled up behind the Hyundai.⁴⁶

As Officer Miranda pulled up, Wetmore exited the Hyundai and appeared agitated.⁴⁷ Officer Miranda parked his cruiser

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behind the Hyundai between the pair.⁴⁸ Officer Miranda observed Wetmore speaking in a louder than normal...