United States v. Kissh

433 F.Supp.3d 1

UNITED STATES of America,

v.Stephen KISSH, Defendant.

Docket No. 2:19-cr-00059-NT

United States District Court, D. Maine.

Signed January 7, 2020

Nicholas M. Scott, U.S. Attorney's Office, Portland, ME, for United States of America.

David J. Bobrow, Bedard & Bobrow, PC, Eliot, ME, for Defendant.

ORDER ON DEFENDANT'S MOTION TO SUPPRESS

Nancy Torresen, United States District Judge

Defendant Stephen Kissh is charged with one count of knowingly and intentionally possessing fentanyl and cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Before me is the Defendant's motion to suppress all evidence obtained from the search of his person, vehicle, and residence and all statements he made prior to his arrest. (ECF No. 57.) I held a hearing on the Defendant's motion on December 16, 2019. For the reasons set out below, I DENY the motion to suppress.

BACKGROUND

In October of 2018, Mr. Kissh was charged in State court with one count of aggravated trafficking in scheduled drugs and six counts of possession of scheduled drugs. Mr. Kissh was released on October 12, 2018, after he posted $10,000 in bail. His conditions of release included refraining from using or possessing illegal drugs and submitting to searches of his person, vehicle, and residence at any time without articulable suspicion or probable cause. Amended Bail Bond and Amended Commitment Order with Conditions of Release ("Conditions of Release Form "), Gov't's Ex. 1.

On January 2, 2019, Lieutenant Christopher Burbank of the South Berwick Police Department received a call reporting that a woman at Mr. Kissh's residence was under the influence of drugs. The caller expressed concern about the woman's well-being and asked the police to check on her safety because she was recovering from substance use disorder and she had recently relapsed and been hospitalized. The caller identified the woman by name. Lieutenant Burbank knew that Mr. Kissh was subject to bail conditions from his state charges, and he confirmed the content of those conditions through an electronic database search.

At around 8:20 am, Lieutenant Burbank and Police Officer Josh Hartley went to the address identified by the caller and observed Mr. Kissh's trailer and green Dodge Caravan on the property. Lieutenant Burbank knocked on the door of the trailer, and a woman, who was not the woman mentioned by the caller, answered. That woman informed the officers that there were four other people inside the trailer. The officers asked her to step outside. As she did so, Mr. Kissh appeared at the trailer door. Lieutenant Burbank told Mr. Kissh that they were there to do a bail check. When the officers entered the trailer, they saw two men sleeping and another woman—the woman identified by the caller—coming out of the bathroom. Lieutenant Burbank observed that this woman appeared to be under the influence of drugs but did not appear to be in any immediate danger. All persons were asked to step outside, which they did.

Once outside, Lieutenant Burbank asked Mr. Kissh whether he had anything in his pockets, to which Mr. Kissh replied that he did not. After being directed to do so, Mr. Kissh turned his pockets inside out, and Lieutenant Burbank lifted Mr. Kissh's shirt to check for a weapon. As this occurred, Officer Hartley saw a small green plastic bag fall to the ground from Mr. Kissh's person. He then observed four small baggies on the ground near Mr. Kissh that appeared to contain crack cocaine and heroin. The contents of these bags were subsequently field tested and were presumptively positive for the presence of cocaine and fentanyl.

Lieutenant Burbank directed Officer Hartley to search the trailer and asked Mr. Kissh whether there was anything inside that would violate the bail conditions. Mr. Kissh replied that he was not sure because many people came through the place. Lieutenant Burbank then asked what would be found during the search, and Mr. Kissh replied, "I don't know, probably cocaine." Mr. Kissh also stated that there were safes inside the trailer but explained that they were not his and he did not know the codes. When Mr. Kissh stated that he was cold, Lieutenant Burbank let him sit uncuffed in the back of an unmarked police cruiser, which remained unlocked. Mr. Kissh used his own cell phone to call his lawyer and leave a voicemail. At some point, Mr. Kissh and the four other individuals were permitted to go into Mr. Kissh's mother's house, where Mr. Kissh fell asleep.

During the search of the trailer, officers discovered a plastic bag that contained approximately 26 grams of suspected cocaine, drug paraphernalia,¹ and two locked safes nearby. The officers also searched Mr. Kissh's Dodge Caravan, in which they found a small green baggie and two razor blades. Following the discovery of these items, Mr. Kissh was placed under arrest, and officers seized Mr. Kissh's cell phone and the two safes. Two days later, a State judge issued search warrants authorizing searches of the phone and safes. From the safes, the officers recovered quantities of fentanyl and cocaine, various prescription pills, 45 tabs of suspected LSD, edible marijuana products and marijuana distillates, approximately $2,458.00 in cash, drug paraphernalia, and a wallet containing identification with Mr. Kissh's name. They also recovered digital evidence from the cell phone.

The Defendant was charged with one count of knowingly and intentionally possessing fentanyl and cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). The Defendant filed this motion to suppress all evidence seized from the search of his person, vehicle, and residence and any statements he made during the incident.

LEGAL STANDARD

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A "warrantless police entry into a residence is presumptively unreasonable unless it falls within the compass of one of a few well-delineated exceptions to the Fourth Amendment's warrant requirement." Matalon v. Hynnes , 806 F.3d 627, 633 (1st Cir. 2015) (internal quotations omitted). One such exception encompasses searches conducted with consent. See United States v. Jones , 523 F.3d 31, 37 (1st Cir. 2008). When consent is used to circumvent the warrant requirement, the Government bears the burden of proving "valid, voluntary consent" by a preponderance of the evidence. Pagán-González v. Moreno , 919 F.3d 582, 591 (1st Cir. 2019) ; United States v. Vázquez , 724 F.3d 15, 18 (1st Cir. 2013) ; see also Florida v. Royer , 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ("[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.").

DISCUSSION

I. Bail Conditions

As noted, as part of his bail conditions, Mr. Kissh agreed not to use or possess alcohol or to use or possess any illegal drugs or their derivatives. He further agreed to "submit to searches of [his] person, vehicle, and residence ... at any time without articulable suspicion or probable cause."² Amended Bail Bond and Conditions of Release Form, Gov't's Ex. 1.

The Government can meet its burden of establishing consent to a search by pointing to bail conditions—agreed to by the Defendant—that permit such a search. See United States v. Gates , No. 08-cr-42-P-H, 2008 WL 5382285, at *7 (D. Me. Dec. 19, 2008) (rec. dec., aff'd Feb. 12, 2009), aff'd , 709 F.3d 58 (1st Cir. 2013). Once the Government does so, the burden shifts to the Defendant to show that his bail conditions were unreasonable under the circumstances or that he did not fully understand them. See id. (citing State v. Ullring , 741 A.2d 1065, 1073 (Me. 1999) ). District courts in this circuit have held that bail conditions like Mr. Kissh's are valid. See United States v. James , No. 2:17-cr-156-GZS, 2018 WL 2027084, at *6 (D. Me. May 1, 2018) (seeing "no reason why the plain language of the bail condition allowing for suspicionless searches of Defendant's residence should not be given its full force and effect"); United States v. Drane , No. 13-cr-31-JL, 2014 WL 2940857, at *9 (D.N.H. June 30, 2014) (finding that search would have been legal even without reasonable suspicion because defendant's bail conditions included submission to searches without articulable suspicion or probable cause). For its part, the First Circuit has "see[n] no reason why [it] should not give the plain language of such a bail condition force and effect."³ United States v. Gates , 709 F.3d 58, 64 (1st Cir. 2013) (finding that search was independently justified by bail conditions, though ultimately holding that defendant had consented to the search).

At the hearing, the Defendant did not argue that his consent was coerced or improperly obtained. Rather, he argued that the Government had failed to meet its burden of establishing valid consent. Specifically, the Defendant contended that the Amended Bail Bond is a separate document from the Conditions of Release Form. The Amended Bail Bond does not list the conditions of release specific to the Defendant, and the Defendant argues that the Government cannot establish his consent to the conditions without showing that he signed the Conditions of Release form or was otherwise instructed on its terms. There is no place for Mr. Kissh's signature on the Conditions of Release form.

However, Mr. Kissh's signature does appear on the Amended Bail Bond, which contains a line stating, "As a condition of my release, I shall comply with any condition(s) set forth on the Conditions of Release form." The box next to that line is checked. In addition, the Amended Bail Bond is signed by a clerk and dated November 29, 2018,⁴ under a line that reads "I have explained the defendant's...