United States District Court, D. Massachusetts
For Paul Bey, Defendant: Vivianne E. Jeruchim, LEAD ATTORNEY, Jeruchim & Davenport, LLP, Boston, MA.
For USA, Plaintiff: Seth B. Kosto, LEAD ATTORNEY, United States Attorney's Office MA, Boston, MA; Timothy E. Moran, LEAD ATTORNEY, U.S. Attorney's Office, Boston, MA.
MEMORANDUM AND ORDER
Patti B. Saris, Chief United States District Judge.
Defendant Paul Bey has been charged with four counts of distribution of cocaine base, one count of being a felon in possession of a firearm and ammunition, and one count of possession with intent to distribute oxycodone. He now moves to suppress all evidence obtained as a result of the execution of an arrest warrant and subsequent search of the home of Clarissa Summons on July 29, 2013. He contends that the evidence was seized in violation of his Fourth Amendment rights because the police unlawfully (1) entered into Summons's home; and (2) searched a backpack containing, among other things, a firearm, ammunition, and oxycodone pills. At an evidentiary hearing on September 4, 2014, Detective Cristine Petruzziello of the Lynn Police Department, Special Agent Ronald Rushneck of the FBI, and Sergeant Scott Stallbaum of the Everett Police Department testified on behalf of the government. Clarissa Summons testified on Bey's behalf. After hearing, Defendant's Motion to Suppress (Docket No. 51) is DENIED.
FINDINGS OF FACT
On July 29, 2013, five officers from the Everett Police Department approached the home of Summons, who resided at 18 South Ferry Street, Apartment 1, in Everett, Massachusetts. Police had multiple arrest warrants for Bey, including one relating to a June 2013 incident in Lynn, Massachusetts where he allegedly assaulted a girlfriend with a gun. In the period after the incident, police had been unsuccessful in locating Bey in Lynn or at his most recent address in East Boston. Following this fruitless Bey-watch, the victim told police that Bey might now be staying with Summons at 18 South Ferry Street in Everett. Police was also aware that Summons
had obtained an abuse prevention order prohibiting Bey from being within 100 yards of her residence.
At approximately 6:00 p.m., police officers knocked, and Summons opened the door. With their guns holstered, the officers informed Summons of the arrest warrants and asked if " Paul" was inside. Summons became visibly nervous and uncomfortable. After being asked again, Summons placed a finger to her lips and repeated the question out loud, " Is Paul in the house?" Summons looked towards her bedroom, kept her finger at her lips, and stated aloud, " I don't think that he is here." Summons then slowly backed away, her finger still on her lips. The police interpreted Summons's actions as a clandestine attempt to communicate Bey's presence in the home and an invitation to enter. As a result, they drew their weapons and crossed the threshold, mindful that Bey might be armed. Meanwhile, Summons went into the back of the apartment to her son's bedroom.
Upon entering Summons's bedroom, Sergeant Strong saw Bey on the floor and yelled at him to lie still and show the officer his hands. After the other officers rushed to the bedroom, Sergeant Stallbaum noticed a black backpack on the edge of Summons's bed and moved it away from Bey's reach to the center of the bed. It felt heavy, and the weight was unevenly distributed. After Bey was placed in handcuffs, officers asked him if the backpack belonged to him. He denied it, saying that the backpack belonged to Summons, not him. No Miranda warnings were given before this exchange. During the arrest, Summons was crying in the bathroom. She had invited Bey back into her house despite the restraining order, and he was staying there two to three times a week. The police allowed Summons to kiss Bey goodbye before he was transported to the police station.
After Bey was taken out of the apartment, three officers (Officer McCabe, Sergeant Strong, and Sergeant Stallbaum) looked around Summons's apartment but did not search the backpack. Sergeant Stallbaum then went outside to obtain a " Consent for Search" form, and Officer McCabe asked Summons for the name, birthday, and social security number of her four-year-old child, expressing concerns about the child's safety if Bey had left a gun in the apartment. During this exchange, the officer also mentioned contacting the Department of Children & Families about the incident. However, Officer McCabe did not make any reference to removing her child from the home. Summons became concerned about the implications of the incident with respect to her son.
Shortly after, Sergeant Stallbaum, who did not participate in the earlier discussion about the Department of Children & Families or know about it, returned and approached Summons with a consent to search form, explaining that he wanted to search the apartment for a gun that Bey used to assault a girlfriend in Lynn. Sergeant Stallbaum sat down with Summons and described the terms of the form to her, including a provision stating, " I have a Constitutional right to refuse to allow a search . . . without a search warrant," and another provision indicating that Summons was " signing this form ...