United States District Court, D. Massachusetts
INDIRA TALWANI, District Judge.
A federal grand jury indicted Defendant Stephen Goudreau as a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Goudreau now moves to suppress a gun and ammunition that officers found in a duffle bag. Goudreau contends that the warrantless search violated his Fourth Amendment rights. After an evidentiary hearing, the court finds that the search was not justified as a search incident to arrest or by exigent circumstances. The search was nonetheless permissible as Goudreau gave his voluntary consent for the officers to search the duffle bag. Accordingly, the court denies Goudreau's Motion to Suppress [#35].
II. Factual Findings
On March 4, 2014, officers from the Ipswich Police Department and Special Agent Daniel McPartlin of the Bureau of Alcohol, Tobacco, and Firearms responded to a reported theft of firearms from Patriot Arms of New England-a firearms store co-owned by Richard Munyon ("Munyon") and John Goudreau, Stephen Goudreau's father. Hr'g Tr. 6-7 [#51]; Aff. Dziadose ¶ 2 [#35-2]. The officers went to the store and spoke with Munyon and John Goudreau. Hr'g Tr. 6-7; Aff. Dziadose ¶ 2. Munyon told the officers that on Friday, February 28, 2014, he noticed that a gun was missing from the store. Hr'g Tr. 7; Aff. Dziadose ¶ 2. Munyon reported that he and John Goudreau conducted an inventory of the store over the weekend and noticed that a second gun was missing as well. Hr'g Tr. 7; Aff. Dziadose ¶ 2. Munyon told the officers that on Monday, March 3, 2014, he viewed the surveillance video of the store from the previous Friday and saw Stephen Goudreau stand near the gun storage area, tuck something under his shirt, and walk towards the garage in the rear of the building. Hr'g Tr. 7; Aff. Dziadose ¶ 2. Munyon told the officers that after viewing the surveillance video, he went to the garage, where he found two empty gun boxes. Hr'g Tr. 8; Aff. Dziadose ¶ 2.
John Goudreau told the officers that he had contacted Stephen Goudreau by text message and he showed the officers Stephen Goudreau's response. Hr'g Tr. 8; Aff. Dziadose ¶ 2. The officers photographed the text messages on John Goudreau's phone. Hr'g Ex. 1. Stephen Goudreau messaged, among other things:
Dad I know I f*ed up and im sorry[.]... [P]lease don't think I wanted to do this[.]... I did something 3yrs ago with someone he got arrested I got away[.]... [W]hen I said I couldnt get the cash he said to get guns[.] [T]hey know u have a store and I might be able to get them[.]... [I']m so sorry either way im going to jail the federal pen cause I stole from u or state prison cause of the past crime.
Hr'g Ex. 1. Munyon told the officers that he and John Goudreau gave Stephen Goudreau a deadline of 10:00 a.m. on Tuesday, March 4, 2014, to return the guns or they would call the police. Aff. Dziadose ¶ 2. According to Munyon, when Stephen Goudreau did not respond by noon, Munyon called the police. Aff. Dziadose ¶ 2.
On March 5, 2014, officers applied for and obtained a search warrant to determine the location of Stephen Goudreau's (hereinafter "Goudreau") cell phone by its GPS signal. Hr'g Tr. 12; Aff. Dziadose ¶ 3. Based on the GPS signal, officers determined that Goudreau's cell phone was located at or near 194 Nesmith Street, Lowell, Massachusetts, the residence of Sarah Levoy (who the officers suspected to be Goudreau's girlfriend). Hr'g Tr. 12; Aff. Dziadose ¶ 3-4. Agent McPartlin also reviewed Goudreau's criminal history and saw that Goudreau had at least six felony convictions, including one for assault and battery. Hr'g Tr. 11. Officers then applied for and obtained an arrest warrant for Goudreau and a search warrant for 194 Nesmith Street, Apartment 6 for "the person known as Stephen Goudreau." Hr'g Tr. 13.
Agent McPartlin testified that on March 5, 2014, at around 11:00 p.m., he and seven other officers went to 194 Nesmith Street. Hr'g Tr. 14, 35. Upon arrival, two officers initially remained outside and the other six officers entered a staircase that lead to Apartment 6. Hr'g Tr. 14-16, 42. Sergeant Joe Murray knocked on the apartment door and said "police." Hr'g Tr. 15. Sergeant Murray waited for a count of five, knocked again, and said "police." Hr'g Tr. 15. Sergeant Murray indicated that he heard movement inside the apartment and he then kicked open the door, damaging it. Hr'g Tr. 15, 38. The officers entered the apartment. Hr'g Tr. 15. The lights in the apartment were initially off. Hr'g Tr. 38. Upon entering the apartment, Agent McPartlin saw Goudreau and Ms. Levoy in bed in a bedroom located to the left of the door. Hr'g Tr. 15. The officers commanded: "Let's see your hands." Hr'g Tr. 15, 40. Four officers entered the bedroom with their guns drawn and ordered Goudreau to get on the ground. Hr'g Tr. 40. The remaining officers conducted a sweep of the apartment for persons and found no one else present. Hr'g Tr. 16. Officers escorted Ms. Levoy out of the bedroom and into the kitchen. Hr'g Tr. 16-17, 41.
Inside the bedroom, where four officers were present, two officers participated in securing Goudreau. Supp. Hr'g Tr. 13 [#53]. The officers handcuffed Goudreau's hands behind his back while he was on the ground. Hr'g Tr. 15; Supp. Hr'g Tr. 14. Goudreau was initially agitated, asked what was going on, and asked to see a search warrant. Hr'g Tr. 15, 44-45. The officers did not respond to Goudreau's questions because, according to Agent McPartlin, Goudreau was not yet under control. Hr'g Tr. 44-45. After Goudreau was handcuffed, the officers returned their guns to their holsters and searched Goudreau's person. Hr'g Tr. 23; Supp. Hr'g Tr. 27. Meanwhile, the two remaining officers in the room conducted a sweep of the room for persons and searched the sheets on the bed. Hr'g Tr. 43, 51; Supp. Hr'g Tr. 13, 14, 15-16.
The officers brought Goudreau to his feet. Hr'g Tr. 42. Goudreau stood with the back of his legs against the long side of the bed, near the middle, but slightly closer to the foot than the head of the bed. Supp. Hr'g Tr. 10, 13. One officer stood directly in front of Goudreau. Supp. Hr'g Tr. 12. Agent McPartlin stood at Goudreau's left side (closer to the head of the bed) and held Goudreau's left arm. Hr'g Tr. 19; Supp. Hr'g Tr. 11, 31. The two remaining officers in the room were "standing there" and "engaged with Goudreau, " who was asking the officers why they were there and what was going on. Hr'g Tr. 18. At that point, the officer standing directly in front of Goudreau dropped his head, revealing a patch on his hat for the police department of Ipswich-the town in which Goudreau's father's gun store was located. Hr'g Tr. 15-16, 18; Supp. Hr'g Tr. 12-13. Goudreau then stated: "I know what this is about; it's in the bag, " and gestured with his head towards the right and the foot of the bed. Hr'g Tr. 15-16, 18; Supp. Hr'g Tr. 12-13. There was a duffle bag on the floor at the foot of the bed. Hr'g Tr. 18. The duffle bag was zipped shut and located five to six feet from Goudreau. Hr'g Tr. 18; Supp. Hr'g Tr. 15, 19. An officer unzipped the duffle bag. Supp. Hr'g Tr. 15. Inside the duffle bag, the officer found a toiletry bag. Hr'g Tr. 47-48; Supp. Hr'g Tr. 15. The officer unzipped the toiletry bag and found a gun and ammunition inside. Supp. Hr'g Tr. 15.
Goudreau seeks to suppress the gun and ammunition that officers found inside the toiletry bag. Goudreau contends that the search of the duffle and toiletry bags was not authorized by either the arrest warrant or the search warrant, which authorized the officers to search the apartment only for "the person known as Stephen Goudreau." Goudreau asserts that the officers' warrantless search of the bags violated his Fourth Amendment rights. Searches conducted without a warrant "are per se unreasonable under the Fourth Amendment, " subject to only a few well-delineated exceptions. Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The Government responds that the search was justified by three exceptions to the warrant requirement: (1) search incident to arrest, (2) exigent circumstances, and (3) consent. ...