US v. Cheryl Burnette CR-99-107-B 10/10/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil N o . CR-99-107-B Opinion NO. 2001DNH187 Cheryl Burnette

MEMORANDUM AND ORDER

Cheryl Burnette has been charged with wire fraud, see

, and impersonating an employee of the United

States, see

. She stands accused of inducing

businesses to provide her with goods and services by falsely

assuring them that she was a government employee and that the

government would pay the bills. I have before me a number of

Burnette’s pretrial motions which I address in turn.

A . MOTION TO SUPPRESS ITEMS SEIZED FROM BROWARD STORAGE AND TO DISMISS THE INDICTMENT

Burnette has moved to suppress evidence collected by Special

Agent Dennis Poltrino of the Environmental Protection Agency

(EPA) during a warrantless search of a storage facility in

Hollywood, Florida. Burnette argues that she had a reasonable expectation of privacy in the contents of her rented storage bin,

thus requiring Poltrino to have obtained a warrant before

conducting his search. Burnette seeks to suppress all evidence

obtained as a direct or indirect result of the search under the

“fruit of the poisonous tree” doctrine. See Wong Sun v . United

States,

(1963). Burnette also argues that

with the suppression of this evidence, her indictment is without

merit and should be dismissed. I assume for purposes of analysis

that Burnette had a reasonable expectation that the contents of

the storage bin would remain private and that Poltrino’s search

did not comply with the Fourth Amendment. Nevertheless, I deny

Burnette’s motion because she has failed to explain how this

allegedly illegal search could have tainted any of the evidence

that the government intends to introduce during the trial.

FACTS1

Burnette first contacted Gino Centofanti, the owner of

Broward Moving Unlimited in April 1997, asking for general

information and telling him that if she rented storage space the

1 The facts set forth in this order are my findings based upon review of the parties’ briefs, affidavits and exhibits, as well as the hearing held on these motions on August 29-30, 2001

-2- services would be paid for by the EPA. Centofanti established a

billing account for the EPA and, on May 3 , 1997, several sealed

cardboard boxes arrived at Broward Moving where an employee

locked them in a storage bin with a label on the outside

indicating that the EPA owned them. Thereafter, Centofanti tried

unsuccessfully to persuade Burnette to sign a rental agreement.

From May 1997 to April 2000, Broward Moving mailed invoices

for the monthly storage fee to an address in Washington, D.C.

provided by Burnette. Although Burnette never paid any of the

invoices, she assured a Broward Moving employee that the bills

would be paid and sought confirmation that her belongings were

safe.

Agent Poltrino met with Centofanti in July 2000. Shortly

thereafter, without first obtaining a warrant, Poltrino searched

the storage bin and seized records and documents belonging to

Burnette.

DISCUSSION

When a defendant invokes the fruit of the poisonous tree

doctrine, she must initially explain how the evidence she seeks

to suppress could have become tainted by the allegedly illegal

-3- search. See Alderman v . United States,

(1969)

(“petitioners acknowledge that they must go forward with specific

evidence demonstrating taint”); United States v . Bonilla Romero,

9 , 45 (1st Cir. 1987); United States v . Finucan,

(1st Cir. 1983); see also United States v . Nava-

Ramirez,

(10th Cir. 2000); United States v .

Kandik,

(9th Cir. 1980); United States v .

Crouch,

(7th Cir. 1976). The government

does not become obligated to prove that the evidence in question

was developed independently until the defendant satisfies its

burden of production on this issue. See Bonilla Romero,

5 .

Burnette has failed to satisfy her burden of production.

The government has stated that it will not seek to introduce any

of the items it seized during the search of the storage bin and

it asserts that it obtained its trial evidence before Agent

Poltrino searched the bin. Burnette has failed to refute these

contentions. This failure is especially problematic here because

Poltrino did not search the storage bin until long after the

government had obtained its indictment and presumably had

-4- gathered the bulk of its trial evidence. Accordingly, Burnette

is not entitled to the relief she seeks.

B . MOTION TO SUPPRESS EVIDENCE OBTAINED FROM COMMERCIAL MAIL RECEIVING AGENCIES AND TO DISMISS THE INDICTMENT

Burnette has moved to suppress evidence collected by Special

Agent Cassandra Todd of the EPA, who observed the outside of

Burnette’s mail on numerous occasions without obtaining a mail

cover2 from the United States Postal Service (USPS). 3 Burnette

argues that any evidence gathered as a direct or indirect result

of observing her mail in the absence of a mail cover should be

2 A mail cover is a process by which the USPS makes a nonconsensual record of any data appearing on the outside of a suspect’s mail. The Chief Postal Inspector or a designee has the authority to approve written requests from law enforcement agencies in which the agency specifies reasonable grounds to demonstrate that a mail cover is necessary to obtain evidence. Once a mail cover application is approved, the USPS will record (by a transcription, photograph or photocopy) the image of the outside cover, envelope, wrapper or contents of the subject’s mail and transmit reports directly to the requesting law enforcement agency. Mail covers continue for 30 days and are address-specific. Once the USPS has recorded the image on the outside of the subject’s mail, it is delivered to the subject at the address. Mail covers are governed by

and

. 3 Burnette also asserts that government agents illegally opened and reviewed her mail. I reject this assertion, however, because I am convinced after conducting an evidentiary hearing that it is untrue.

-5- suppressed. For the reasons that follow, I reject Burnette’s

argument.

FACTS

Over the past several years, Burnette has rented mailboxes

at various commercial mail receiving agencies (CMRAs). During

the course of its investigation, Agent Todd and other EPA agents

inspected the outside of Burnette’s incoming mail at several of

these CMRAs. On three other occasions, Agent Todd applied for

mail covers so that the USPS could inspect Burnette’s mail.

Twice the USPS granted her applications. The USPS returned a

third application for more information. Burnette seeks to

suppress all evidence derived from inspections of her mail at the

CMRAs.

DISCUSSION

To invoke the Fourth Amendment’s protection against

unreasonable searches and seizures, a person must have a

reasonable expectation that the government cannot search the

place or seize the item or information in question without a

warrant. See Minnesota v . Carter,

3 , 88 (1998) (citing

Rakas v . Illinois,

(1978)). Courts have

-6- established that a person has no reasonable expectation of

privacy in the information conveyed on the outside of her mail.

See United States v . Choate,

(9th Cir. 1978);

United States v . Clark,

(D. M e . 1988).

Instead, “a person may reasonably expect privacy only with

respect to the contents of an envelope and not with respect to

information knowingly exposed to third parties on the envelope’s

exterior.” Reporter’s Comm. for Freedom of the Press v . A.T.&T.,

(D.C. Cir. 1978) (emphasis in original).

Where a person lacks an expectation of privacy, the Fourth

Amendment remains inapplicable and suppression of evidence is

unnecessary.

Burnette does not base her motion on the Fourth Amendment.

Instead, she argues that the USPS regulations governing mail

covers make it illegal for law enforcement agents to inspect the

outside of a suspect’s mail at a CMRA. She further contends that

the EPA’s investigating agents knowingly and willfully violated

these regulations.

I need not decide whether Burnette’s argument has merit in

order to dispose of her motion to suppress. The mere violation

of agency regulations, without more, does not justify the

-7- exclusion of otherwise relevant evidence unless the regulations

specifically prescribe suppression as a permissible remedy. See

United States v . Edgar,

(1st Cir. 1996). The

USPS mail cover regulations do not permit this remedy. See

. For this reason, I deny Burnette’s motion.

C . MOTION TO SUPPRESS ITEMS SEIZED FROM THE QUECHEE RESIDENCE AND TO DISMISS THE INDICTMENT

Burnette has moved to suppress evidence collected by Agent

Poltrino during three searches of her residence in Quechee,

Vermont. Burnette argues that the first two searches were

unlawful because Poltrino failed to obtain a warrant to conduct

either search. She argues that the third search, which was

conducted pursuant to a warrant, was unlawful because Agent

Poltrino used information obtained during the first two illegal

searches to obtain the warrant. Burnette also asks this Court to

suppress a Rolex watch that Poltrino seized from her during her

arrest. Finally, Burnette contends that the police illegally

searched two of her bags at the police station after her arrest.

I reject Burnette’s arguments.

FACTS

On the morning of September 2 7 , 1999, Agent Poltrino and his

-8- partner, Agent Melissa Blair, knocked on the door of defendant’s

residence at 25 Alden Partridge Road in Quechee, Vermont. When

Burnette asked who was there, Poltrino identified himself and

explained that he had a warrant for her arrest. For close to an

hour, Burnette refused to open the door and submit to arrest.

During this time, Blair called the local police for assistance,

and Poltrino obtained instructions from the U.S. Attorney’s

Office to forcibly enter the house in order to arrest Burnette.4

Agent Poltrino then kicked in the front door of the house,

found Burnette near the front of the house, and placed her under

arrest. He demanded several times to know whether anyone else

was present in the house, but Burnette refused to answer.

Shortly thereafter, Poltrino and one of the local law enforcement

officers noticed a man emerge from a bedroom. The officers

handcuffed the man and later identified him as Michael Tamulis.

Fearful that more people could be in the house, Poltrino and a

local police officer, Alan Patterson, performed a protective

sweep, checking all places in the house where a person could be

4 To the extent that Burnette’s averments are in conflict with Agent Poltrino’s testimony concerning the events that immediately preceded her arrest, I credit Poltrino’s testimony.

-9- hiding.

During the course of the protective sweep, Agent Poltrino

observed several items in plain view that he believed were

connected to the crimes for which Burnette has now been indicted.

He observed two mountain bikes sitting in the foyer to the right

of the door through which he had entered the house. He saw a

laptop computer, a cell phone, and a box for a Nokia cell phone

on the dining room table. He next entered a family room where he

observed a fax machine in the area to the left of the room’s

fireplace, some exercise bikes, a briefcase, and an answering

machine. In the living room, he saw cases of environmental law

books. Moving to the master bedroom, he noted an AT&T fax

telephone, some Harvard University boxes, and on the bed, a

telephone directory for the Department of Justice. Finally, he

observed another mountain bike in one spare bedroom and a Canon

printer box in another spare bedroom.

After performing the protective sweep, Agent Poltrino

confiscated Rolex watches worn by Burnette and Tamulis because he

had received information from a jewelry store owner that Burnette

had illegally obtained both watches. As the agents and officers

prepared to bring Burnette and Tamulis to the police station for

-10- booking, Burnette pointed to a black briefcase and a black

leather bag and asked to bring both items with her to the

station.5 She was permitted to do s o .

Agent Poltrino remained at the house after Burnette and

Tamulis were taken to the station in order to secure the

residence until the front door could be repaired. While waiting,

he decided to walk through the house again to obtain more

detailed information about several items he had noticed during

his protective sweep. These included mountain bikes, a laptop

computer, a cell phone, and a fax machine. Poltrino conducted

this second search because he believed that the application he

planned to make for a search warrant would be better supported by

listing the brand names and serial numbers of these objects.

The next day, Agent Poltrino submitted an application for a

search warrant to the U.S. District Court for the District of

Vermont. In his warrant application, Poltrino detailed much of

the information he had obtained during his investigation,

5 Burnette claims that she did not ask to take the briefcase and bag to the police station. After holding an evidentiary hearing on this issue, I find her assertion unpersuasive. Instead, I credit Agent Poltrino’s testimony that Burnette asked to have both bags brought to the station.

-11- including information obtained from both the protective sweep and

the second search of Burnette’s residence. He stated that he had

observed the following items in plain view: An IBM Thinkpad

Laptop computer; several computer boxes; a facsimile machine; a

Canon Multi-Press C300 printer; an HP Laser Jet Power Printer;

boxes from Harvard University; Nokia Cellphone boxes; and two

bicycles. Affidavit Supporting Warrant Application at ¶ 7 ( c ) .

Agent Poltrino also attached as “Appendix A” to his affidavit a

list of items that Burnette allegedly had obtained through

fraudulent means. Of the brand names he identified in his

affidavit, the only one to appear also in Appendix A is the IBM

Thinkpad laptop computer.

The U.S. District Court in Vermont approved the warrant

application. In carrying out the search, Agent Poltrino seized

items that the government proposes to use during its case against

Burnette.

DISCUSSION

1. The Protective Sweep

Burnette does not dispute that Agents Poltrino and Blair,

along with local law enforcement officials, lawfully entered her

-12- residence on September 2 7 . That being the case, Poltrino and

Officer Patterson were justified in performing a protective sweep

of the residence because they had a reasonable basis to be

concerned that other people might be in the residence who could

threaten their safety. See Maryland v . Buie,

, 334-

36 (1990). A protective sweep is “a quick and limited search of

[the] premises, incident to an arrest and conducted to protect

the safety of police officers or others.”

; Crooker v .

Metallo,

(1st Cir. 1993). It is justified if the

arresting officers have a reasonable suspicion, based on

articulable facts, that another person who poses a danger to the

officers or others might be on the premises. Buie,

; Crooker,

.

Agent Poltrino was justified in conducting a protective

sweep in this case because he had specific reasons to fear that

other people might be in the home who could threaten his safety.6

Because Burnette refused to respond to his reasonable demands to

6 I note that the record contains no evidence to suggest that the protective sweep was pretextual or that it was more extensive than was reasonably necessary to determine whether others were present in the home.

-13- know whether any other people were in the house, Poltrino had

reason to fear that others might be present. The appearance of

Tamulis served only to confirm these fears. Given the

uncertainty and the real risk that law enforcement officers face

when they are required to forcibly enter an uncooperative

suspect’s home to effect an arrest, it is not unreasonable for

such officials to conduct a protective sweep of the home if the

suspect refuses to tell the officials whether others are present.

Accordingly, Poltrino’s first search of the premises was lawful.

2 . Rolex Watch

Law enforcement officials may lawfully “search the person of

the accused when legally arrested to discover and seize the

fruits or evidence of crime.” Weeks v . United States,

(1914); see also Harris v . United States,

(1947). The ability of the police to seize lawfully “fruits

or evidence” of crime specifically includes stolen property. See

Harris,

. There is no dispute that Poltrino’s

arrest of Burnette was lawful and that he had a right to search

her incident to that arrest. When Poltrino seized the Rolex

watch worn by Burnette, he had probable cause to believe, based

-14- upon information he had received from the person who supplied

Burnette with the watch, that she had obtained the watch

illegally. Thus, his seizure was lawful and the watch will not

be suppressed.

3 . Inventory Search of Bags

The Supreme Court has considered the reasonableness of

searching personal items found on or with a person lawfully

arrested once they arrive at the police station. The Court has

stated that these inventory searches are “entirely proper” and

that police may reasonably search “any container or article” in

the possession of a person lawfully arrested as part of the

administrative procedure that accompanies booking and jailing.

Illinois v . Lafayette,

(1983); see also

United States v . Doe,

(1st Cir. 1989).

Burnette argues that law enforcement officers took her two

black bags to the police station against her will. I reject

Burnette’s contention and instead credit Agent Poltrino’s

testimony that she asked the police to bring the bags to the

police station. Accordingly, the inventory search of the bags

that followed was lawful.

-15- 4 . The Second Search

While Agent Poltrino’s protective sweep of Burnette’s

residence was lawful, the government concedes that his second

search hours later, after Burnette had been taken into custody,

was not. Burnette argues that Poltrino’s third search of the

premises was impermissibly tainted by his illegal second search.

I disagree.

Both a plurality of the United States Supreme Court and the

First Circuit Court of Appeals have recognized that evidence

seized pursuant to a lawful search warrant should not be

suppressed because of an earlier illegal search if the lawful

search was independent of the first search. See Murray v . United

States,

(1988); United States v . Silvestri,

(1st Cir. 1986). This exception to the

exclusionary rule is commonly known as the “inevitable discovery”

doctrine. See

To successfully invoke this doctrine, the

government must establish that: (1) the lawful second search was

independent of the first search; (2) the second search was

inevitable; and (3) applying the doctrine will neither provide

incentives for police misconduct nor otherwise significantly

-16- weaken Fourth Amendment protections. Silvestri

.

The First Circuit invoked the inevitable discovery doctrine

in United States v . Ford,

(1st Cir. 1994) to uphold a

district court’s denial of a suppression motion on facts that are

remarkably similar to the facts of this case. There, postal

inspectors conducted a warrantless protective sweep of the

defendant’s residence and later included information they

developed during the first search in an affidavit they used to

obtain a warrant to search the residence a second time. See

.

The Court of Appeals determined that the second search was

independent of the first search because the police did not

require any of the information they obtained during the first

search to establish probable cause to conduct the second search.

See

. The court also concluded that the second search

was inevitable because the inspectors told the defendant before

they conducted the first search that they were planning to obtain

a warrant to search the premises. See

Finally, the court

rejected the defendant’s argument that applying the inevitable

discovery doctrine would permit law enforcement officers “to be

-17- indifferent to the warrant requirement for twenty-four hours and

rely on a search warrant obtained after agents have engaged in an

entirely predictable and manufactured protective sweep as proof

of inevitability.”

(citation and internal quotations

omitted).

The present case is indistinguishable from Ford. First,

Agent Poltrino had ample independent and untainted probable cause

to support his application for the warrant to conduct the third

search. As his search warrant affidavit reveals, Poltrino had

spoken with numerous people who claimed to have been victims of

Burnette’s wire fraud schemes before he ever entered her

residence. He knew that Burnette’s alleged victims claimed that

Burnette had used fraudulent means to induce them to provide her

with goods such as a bicycle, two Rolex watches, and various

pieces of computer equipment. After Poltrino arrested Burnette,

he also discovered that she and her companion were wearing the

fraudulently obtained Rolex watches. Finally, while conducting

the protective sweep, Poltrino observed a bicycle, a laptop

computer, various computer boxes and several other pieces of

computer equipment that were consistent with other items that

-18- Burnette allegedly had obtained through fraudulent means. The

only additional information that Poltrino obtained as a result of

the illegal second search concerned the brand names of certain

items that he had observed during the protective sweep. This

additional information could not have affected the issuing

judge’s probable cause determination.

Second, Agent Poltrino inevitably would have obtained the

warrant to conduct the third search even if he had not conducted

the illegal second search. Poltrino testified at the suppression

hearing that he performed the second search in order to obtain

more specific information to include in his application for a

warrant to conduct the third search. This testimony demonstrates

that he was planning to obtain a warrant before he conducted the

second search. Thus, the third search was truly inevitable.

Finally, I reject any suggestion that I will encourage

police misconduct or otherwise undermine the Fourth Amendment if

I apply the inevitable discovery doctrine in this case. Agent

Poltrino had ample probable cause to search Burnette’s residence

even before he entered her home. He also had a plan to obtain a

warrant to search the premises which predated the second search.

-19- Moreover, it is obvious that any competent law enforcement

official in Poltrino’s position would have sought and obtained a

warrant to search Burnette’s home even if he had been able to

arrest her without ever entering the residence. Refusing to

suppress evidence based upon an illegal search that was

unnecessary and produced nothing of value to the police will not

encourage future misconduct or otherwise undermine the Fourth

Amendment. Accordingly, I reject Burnette’s argument that the

evidence obtained during the searches of her residence should be

suppressed.

D . MOTION TO DISMISS THE INDICTMENT FOR PROSECUTORIAL MISCONDUCT IN THE GRAND JURY

Burnette has moved to dismiss the indictment, citing

instances of prosecutorial misconduct before the grand jury.

Specifically, she alleges that dismissal is required because the

prosecutor (i) impermissibly relied upon hearsay, (ii) “inflamed”

the grand jury by mentioning narcotics and telling the jurors

that Burnette was currently in prison, and (iii) lied about the

evidence against her. Burnette’s motion is without merit.

First, hearsay testimony is permitted in grand jury proceedings,

see United States v . Ortiz de Jesus,

, 4 (1st Cir.

-20- 2000). Second, the prosecutor mentioned narcotics in the context

of explaining the federal sentencing guidelines and it is not

apparent how the grand jury would be inflamed by that. Moreover,

the prosecutor noted only briefly that Burnette was in jail when

he was giving the jurors her basic biographical information.

Finally, whether the charges against Burnette are supported by

credible evidence is a question of fact to be decided by the jury

at her trial. See Estate of Spinosa v . Int’l Harvester Co.,

, 1160 (1st Cir. 1980). Defendant’s motion is denied.

E . MOTION TO DISMISS THE INDICTMENT BASED UPON OUTRAGEOUS GOVERNMENT CONDUCT

Burnette has moved to dismiss her indictment based upon

outrageous government conduct. In support of this motion,

Burnette offers no examples of the government’s behavior other

than the evidence she offered in support of her motions to

suppress. To the extent that Burnette bases her arguments on

averments of fact that are inconsistent with the facts testified

to by the government during the suppression hearing, I am

persuaded by the government’s evidence. Moreover, I reject any

suggestion that any of the government’s agents acted in bad faith

or that their conduct rises to the level of outrageous government

-21- misconduct. Burnette’s motion is denied.

CONCLUSION

The following motions made by Burnette are denied: Motion

to Suppress Items Seized from Broward Storage and To Dismiss the

Indictment (Doc. N o . 8 0 ) ; Motion to Suppress Items Seized From

M s . Burnette’s Quechee Residence and To Dismiss the Indictment

(Doc. N o . 9 6 ) ; Motion to Dismiss Indictment for Prosecutorial

Misconduct in the Grand Jury (Doc. N o . 9 8 ) ; Motion to Dismiss the

Indictment Based Upon Outrageous Government Conduct (Doc. N o .

9 7 ) ; and Motion to Suppress Evidence Obtained From Commercial

Mail Receiving Agencies and To Dismiss the Indictment (Doc. N o .

84).

SO ORDERED.

Paul Barbadoro Chief Judge

October 1 0 , 2001

cc: Robert M. Kinsella, AUSA Harry C . Batchelder, Jr., Esq.

-22-