United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge.
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,  the court DENIES the
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.
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.
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. [#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.
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.
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.”
recorded and listed to this call, Billerica staff contacted
Bossi and relayed the call's contents. 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.
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. 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.
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.
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.
was later interviewed by Bossi and DEA Special Agent Prough.
Alysha stated at the interview she had not known the bags
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
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
Fourth Amendment's Applicability - Expectation of
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).
“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 ...