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United States v. Moran

United States District Court, D. Massachusetts

October 5, 2017

UNITED STATES OF AMERICA
v.
BRYAN MORAN, Defendant.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge.

         Before the court is Defendant Bryan Moran's Motion to Suppress [#54]. Moran seeks an order suppressing the fruits of an allegedly unlawful search of bags he stored in his sister's locked storage unit. Id. In particular, Moran seeks suppression of the fentanyl found in those bags on March 29, 2016, and described in the Indictment [#24]. After review of the parties' papers, and the evidence and testimony received at the three-part evidentiary hearing, [1] the court DENIES the Motion [#54].

         I. Factual Background[2]

         A little over a week preceding the search that is the subject of the pending motion, Moran left a “sober home” in Malden, MA, where he had been residing. He contacted his sister, Alysha, and asked to store his belongings at her apartment. That evening, Moran placed large garbage bags along a hallway inside Alysha's apartment.

         On March 21, 2016, Moran returned to Alysha's apartment. Moran attempted to place some bags in various closets in Alysha's apartment, but Alysha ultimately directed Moran to put the bags in her storage unit, located in another building in the same apartment complex. With the exception of one bag which was stored behind Alysha's washing machine, the bags were placed in the storage unit, and Moran left with the only key.

         On March 22, 2016, Alysha called Wilmington Police Detective John Bossi, with whom Alysha had been in contact for a number of years. She told Bossi that she had been called and threatened by someone named Miguel whom she thought-from context and from conversations with a friend-to be Moran's supplier.[3] [#61-1]. She stated that this supplier explained that Moran both owed him money and told him to contact Alysha were Moran unreachable. Scared for her own safety and for Moran's, Alysha told Bossi that Moran was on the run and with a friend named Mike, in Melrose. She asked Bossi whether she should pay the supplier; Bossi directed her not to, and instead alerted Moran's Probation Officer (whom Bossi could not reach) and the North Reading Police Department.

         The same day-March 22-Moran was arrested on a probation violation in Melrose and brought to the Middlesex County Billerica House of Corrections. Alysha went to the Melrose Police Department and picked up Moran's belongings. These belongings included the key to the storage unit, though it is unclear whether she knew this at the time.

         On March 29, 2017, Moran placed a recorded call from Billerica, to his girlfriend, Tina Tomasi. Ex. 1A. Tomasi explained that Alysha had received a letter from her landlord stating that she needed to empty the storage unit to allow for repairs. Moran inquired further about the letter, and asked Tomasi to dial Alysha into the call, “because that's making [him] a little nervous.” Upon joining the call, Alysha (sounding distraught) explained she could not locate the key to the storage unit. Moran responded that the key was with the belongings Alysha picked up from the Melrose Police Department, and he began to instruct Alysha to move his bags out of the storage unit, stating, “All right, all right, all right, I'm done talking on the phone for like. You know what the fuck you need to do, like, just do it. I don't know what to say because I can't - I'm in here like.” She responded: “All right, all right, I know.” As Alysha expressed uncertainty as to how she would be able to move everything from out of the unit, Moran reassured her that she did not need to move everything, but only that which is there “right when you open the door.” Alysha directed Moran to “shut up, ” and Moran later stated “Everything's good, kid, I don't want you like stressed out, like if anything, handle it now. I don't want to keep talking about it. This shit's recorded, like.” Alysha finally stated: “I'll figure it out. I don't know. It's all set. I'll just figure it out. I love you.” Moran responds: “Love you.”

         Having recorded and listed to this call, Billerica staff contacted Bossi and relayed the call's contents.[4] Bossi dispatched Detective Dindo to surveil the apartment complex, and Bossi, along with two other officers-Lieutenants Romeo and Pupa-went to Alysha's apartment. When Alysha did not respond to their knock on the door, Bossi called Alysha and asked that she come speak with him at the apartment. She did, and upon being told that the officers were investigating Moran for drugs, she consented to their entry and search of her home for Moran's possessions.

         The testimony from the officers and Alysha as to their presence and conduct in the apartment diverges, and there is some dispute as to the facts surrounding Alysha's opening of her own safe, which revealed roughly a pound of marijuana, pipes, and a scale.[5] It is uncontested, however, that Alysha volunteered to officers $2, 200 in cash located in the pocket of her bathrobe that she said belonged to Moran, and there is little to no evidence regarding any resistance put forth to a search for, or of, Moran's belongings.

         During the search, Detective Hatch was instructed to bring a “consent to search form” for Alysha to sign. Although Hatch and Alysha provided varying accounts of the specifics of how she went about signing the form, Alysha did in fact sign the form [#61-3], stating her consent to search her apartment, storage unit, and vehicle. Alysha ultimately escorted Hatch to her vehicle (which he searched, including a bag belonging to Moran), provided him the key to the storage unit (which was located in the central console inside the car), and then escorted officers to the storage unit where Hatch opened the door. Alysha differentiated the contents of the unit, stating the black bags belonged to Moran while the boxes containing Christmas decorations belonged to her. Although it is unclear whether Alysha gave express consent to search Moran's bags, it is undisputed that she did not limit her written consent or object to any portion of the search. She walked away to retrieve her child from the school bus, and officers began their search.

         They removed the bags from the storage unit, and allowed a canine who arrived at the scene to test for drugs. The canine was not trained to detect fentanyl, and did not alert. Nonetheless, the officers searched the bags and discovered in them the fentanyl at issue in this case. No warrant was ever applied for or secured. Alysha was never arrested or charged.

         Alysha was later interviewed by Bossi and DEA Special Agent Prough. Alysha stated at the interview she had not known the bags contained fentanyl.

         This motion followed.

         II. Discussion

         In a criminal trial, a court may suppress evidence obtained via conduct violative of the defendant's constitutional rights. Moran requests this remedy based on the following assertions: that threats, intimidation, and an informant-esque relationship with police, together rendered Alysha's consent involuntary and thus inadequate as an exception to the Fourth Amendment's general prohibition of warrantless searches. He further argues that even were Alysha's consent genuine, she possessed neither actual nor apparent authority to give it, and was in any event unable to serve as justification for the police's search because she herself was a confidential informant. The government rejects these arguments, and contends further that Moran lacked any Fourth Amendment protections in the bags at all.

         The court notes that while Moran must first demonstrate the Fourth Amendment's extension to the bags, the government then bears the burden of demonstrating its compliance therewith. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (government's burden to prove constitutional compliance); Rawlings v. Kentucky, 448 U.S. 98, 104 (1980) (defendant's burden to prove constitutional protections).

         A. Fourth Amendment's Applicability - Expectation of Privacy

         The Fourth Amendment only prohibits intrusions upon reasonable expectations of privacy. See United States v. Gamache, 792 F.3d 194, 198 (1st Cir. 2015). Courts divine privacy expectation via both “subjective and objective criteria: the complainant must have an actual expectation of privacy, and that expectation must be one which society recognizes as reasonable.” Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174, 178 (1st Cir. 1997).

         i. Subjective Prong

         The “relevant question” as to Moran's subjective, actual expectation of privacy in the bags is whether he sought “to preserve as private” the evidence therein. See United States. v. Rheault, 561 F.3d 55, 59 (1st Cir. 2009) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). Even where a defendant hides evidence to evade a ...


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