United States v. Guillette

UNITED STATES OF AMERICA v. SEAN GUILLETTE, Defendant.

Case No. 2:19-cr-00122

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

April 23, 2021

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE

(Doc. 48)

Pending before the court is Defendant Sean Guillette's motion to suppress physical evidence obtained as a result of an April 19, 2019 seizure of her phone. (Doc. 48.) Defendant argues that the seizure violated the Fourth Amendment to the United States Constitution because the phone was seized from her vehicle without a warrant while the vehicle was parked at her residence. The government filed an opposition on February 3, 2021. On March 29, 2021, the court held an evidentiary hearing at which Burlington Police Department ("BPD") Corporal Jennifer Cousins testified. At the conclusion of the hearing, the court took the pending motion under advisement.

Defendant is charged with two counts each of the following: knowingly receiving a visual depiction involving the use of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2); knowing possession of one matter which contains a visual depiction involving the use of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B); and knowingly and intentionally transporting and shipping a visual depiction involving the use of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(1).

The government is represented by Assistant United States Attorneys Barbara A. Masterson, Nathanael T. Burris, and Nicole P. Cate. Defendant is represented by Assistant Federal Public Defender David L. McColgin.

I. Findings of Fact.

On April 11, 2019, Corporal Cousins responded to 25 Elmwood Avenue, Apartment 8 in Burlington, Vermont to investigate a report of domestic assault. 25 Elmwood Avenue is a multi-unit apartment building on the west side of Elmwood Avenue. The building consists of four interconnected structures which almost entirely encircle a paved parking area. Apartment 8 is located in the building on the north side of the property. Unmarked parking spaces are located around the perimeter of the parking area near the buildings. A driveway on the south side of the property provides ingress and egress from Elmwood Avenue. The driveway is sufficiently broad to allow vehicles to continue to access Elmwood Avenue even if the parking spots along the south side of the driveway are occupied.

At the time of her arrival at 25 Elmwood Avenue, Corporal Cousins's body camera footage depicted six vehicles parked in unmarked parking spaces in front of the buildings and in unmarked parking spaces along the south side of the driveway. A dark blue Toyota Highlander (the "Highlander") was not among them. Corporal Cousins spoke with Victoria Morrison who told her that she was Defendant's girlfriend of three years, that she and Defendant had lived together in Apartment 8 for a year, and they were both on the lease. She advised that Defendant had threatened to kill her and had thrown a pair of glasses and a bottle of Windex at her, hitting her with them. She told Corporal Cousins that she wanted Defendant "charged." (Government's Exhibit 3A at 5.) Thereafter, Corporal Cousins and Ms. Morrison decided to move outside of the apartment to speak further because Corporal Cousins was allergic to Ms. Morrison's cats.

As they exited the apartment, Defendant entered the apartment building through an exterior door in front of the door to Apartment 8. Defendant and Corporal Cousins greeted each other. Corporal Cousins advised that she was going to speak to Ms. Morrison outside and asked Defendant: "[D]o you want to go inside and I'll come chat with you in a minute?" to which Defendant responded: "Sure." Id. at 8. At the time, Corporal Cousins's body camera footage depicted the Highlander parked on the south side of the driveway. At least five other vehicles were parked closer to Apartment 8 thanthe Highlander.

Because of Defendant's arrival on the scene, Corporal Cousins requested assistance from a second unit. Corporal Cousins issued an oath to Ms. Morrison who then averred that Defendant threw her on the bed and tried to smother her by shoving her head into the mattress, causing her trouble breathing and pain which she rated a nine out of ten. She further advised that this was not the first time that Defendant had done this.

At approximately 10:23 a.m., Corporal Erica Schaller arrived on the scene. Corporal Cousins and Corporal Schaller knocked on the outer door of the apartment building and called Defendant's name but received no answer. A neighbor opened the outer door of the building and let BPD officers into the building's common area. The neighbor informed the BPD officers that Defendant had been "screaming a lot lately" including "the other day" and that she almost called the police. Id. at 19. She stated that Defendant was "a little high and low" and was "really nice sometimes." Id. at 19-20. The neighbor provided her name, date of birth, and phone number and reported that Ms. Morrison was "saying things like, I want my car back, or something which I didn't know was - I always thought that car was [Defendant's]." Id. at 21. She commented that Defendant has purchased a vehicle without considering the absence of a parking spot for it. Corporal Cousins asked to which car she was referring and the neighbor replied that it was the blue wagon and that Defendant had asked to park it behind her car because Defendant did not have a parking spot. The neighbor indicated that she had recorded an interaction between Defendant and Ms. Morrison and that she would send the recording to Corporal Cousins.

Apartment 8 was locked and Ms. Morrison did not have her keys with her. Because she had complained that she was cold and asked for her sweatshirt, Corporal Cousins knocked on the door to Apartment 8 and stated that she needed to "grab [Ms. Morrison's] sweatshirt." Id. at 23. Again, there was no answer.

While Corporals Cousins and Schaller attempted to make contact with Defendant, Ms. Morrison waited outside the apartment building with BPD Officer Kory Orfant. She told Officer Orfant that she did not drive, did not have an operator's license, and thatDefendant also did not have an operator's license. She again stated that she was cold and told Officer Orfant that she was going to sit in the car. Officer Orfant asked Ms. Morrison if the Highlander was her car and she stated that it was. She opened the Highlander's unlocked front passenger door and remarked that Defendant's cell phone was still inside the vehicle. Officer Orfant asked Ms. Morrison whether there was another door or window to her apartment and she walked around the side of the apartment building to show the BPD officers the location of the bathroom window of Apartment 8. Ms. Morrison returned to the Highlander, opened its passenger door, and sat in the front passenger seat of the vehicle for approximately four minutes. Thereafter, she entered the Highlander for a third time and again sat in the front passenger seat where she stayed with the passenger door intermittently open and closed for approximately sixteen minutes. When Ms. Morrison exited the vehicle, she told Corporal Cousins that the jacket she was wearing had been in the Highlander and belonged to Defendant.

After determining that Defendant was no longer inside the apartment building, Corporal Cousins and BPD Sergeant Christopher Nadeau spoke to Ms. Morrison in the common area of the building where she informed them that Defendant had been looking at "kiddie porn" on a cell phone and was a "high-risk sex offender." (Doc. 54-4 at 57:15.) She stated that the officers should "check [Defendant's] phone" and reported that, the previous evening, she had seen Defendant watching a video of an approximately four-year-old boy masturbating with a toy. Id. Ms. Morrison told BPD officers that Defendant was "constantly" looking at ten and eleven-year-old females in various stages of undress and viewing pornography in which the females appeared underage. (Government's Exhibit 3A at 47.) She informed Corporal Cousins that Defendant's cell phone was in the Highlander.

Ms. Morrison spoke with BPD's Domestic Violence Investigator after which she stated that she did not wish to provide any further statements and did not wish to file for a restraining order against Defendant. While BPD officers were on the scene, several individuals used the driveway and walked past the Highlander.

When the officers left 25 Elmwood Avenue and returned to BPD, CorporalCousins consulted with Sergeant Nadeau who suggested that she should secure the cell phone that Ms. Morrison had indicated contained child pornography. Corporal Cousins called Ms. Morrison and asked her "if the phone was still there." Ms. Morrison informed Corporal Cousins that Defendant's cell phone was still in the Highlander and that it was a Samsung phone. Corporal Cousins told Ms. Morrison that she would come back to retrieve the phone. Corporal Cousins testified that it is not her practice to ask non-law enforcement individuals to obtain and secure evidence on her behalf. The court finds Corporal Cousins's testimony credible.

When Corporals Cousins and Schaller returned to 25 Elmwood Avenue, they met with Ms. Morrison who handed them a Samsung cell phone and stated it was the cell phone Defendant used to view alleged child pornography. Corporal Cousins took the Samsung cell phone and removed its battery to prevent it from being wiped remotely. BPD did not investigate the registration of the Highlander to determine its ownership prior to the seizure of the Samsung cell phone.

On April 23, 2019, BPD Detective Thomas Chenette, who was investigating Defendant's alleged possession of child pornography, learned that on March 16, 2019, Instagram had made a report to the National Center for Missing and Exploited Children concerning a suspected upload of a file...