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United States v. Almonte

United States District Court, D. Rhode Island

March 29, 2019

UNITED STATES OF AMERICA
v.
ARIEL ALMONTE

          MEMORANDUM AND ORDER

          William E. Smith Chief Judge

         On February 28, 2018, Defendant, Ariel Almonte was indicted on charges of possession with intent to distribute a fentanyl and possession of a firearm in furtherance of drug trafficking. See Indictment, ECF No. 9. The charges were partly based on evidence seized from Defendant's residence after Defendant's wife, Williana Pimentel, consented to a search of their shared apartment.

         Before the Court is Defendant's Motion to Suppress (ECF No. 18), in which he argues that Pimentel's consent was involuntary because law enforcement officers threatened to take her daughter away if she refused consent. After a hearing on January 17, 2019, the Court requested supplemental briefing on several issues, including whether the independent discovery of the contraband from Almonte's home was inevitable because the police would have obtained a valid search warrant in lieu of consent.[1] For the following reasons, the Court DENIES the motion.

         I. Factual Background

         On February 28, 2018, while conducting surveillance in an unmarked vehicle at a local McDonald's, Detective Dempsey of the Cranston Police Department (“CPD”) observed a grey sedan parked in the parking lot and the driver holding a syringe; the driver was later identified as Richard Wiggs. Mot. Suppress Hr'g Tr. (“Hr'g Tr.”) 9:20-10:1, 149:4-7, Jan. 17, 2019, ECF No. 27. Det. Dempsey watched as a silver Lexus entered the parking lot and parked behind the sedan. Id. 149:2-9. The Lexus had two passengers: an adult male in the driver's seat, later identified as Defendant Ariel Almonte; and a young girl in the front passenger seat, later identified as Defendant's eleven-year-old step-daughter, A.T. Id. 80:9-21. The driver of the Lexus left his vehicle, approached the grey sedan, leaned into its open driver's-side window, and completed what Det. Dempsey described as a possible “hand-to-hand transaction.” Id. 166:10.

         At approximately 3:00 p.m. Det. Dempsey radioed another CPD officer, Detective Fuoroli, to ask for back up. When Det. Fuoroli arrived ten minutes later, the two officers exited their cars, weapons drawn and badges on display, and commanded Almonte, Wiggs, and A.T. to show their hands. Id. 68:21-25. Almonte dropped a small bag of white powder on the ground as Det. Fuoroli approached and arrested him. Id. 72:1-20. Meanwhile, Det. Dempsey approached Wiggs in his vehicle and observed drug paraphernalia in his car. Id. 158:23-160:13. When questioned, Wiggs stated that Almonte (whom he called “Socio”) had just sold him two, $40.00 bags of heroin. Id. 24:7-17.

         After obtaining a phone number from A.T., Det. Fuoroli attempted to call A.T.'s mother and Almonte's wife, Williana Pimentel. Id. 86:22. He used his CPD-issued cell phone to make the call and blocked his number before dialing. Id. 87:9-17. When Pimentel did not answer his first call, Det. Fuoroli left her a voice message instructing her to “call the Cranston Police Department back regarding [her] daughter, ” and providing the phone number for CPD's main line. Id. 26:24-27:4, 87:9-88:24. Det. Fuoroli next called the Department of Children, Youth, and Families (“DCYF”) to inform them that he was at the McDonald's on Cranston Street and that he had in his custody a child whose stepfather had just been charged with selling drugs and whose mother was not answering her phone. Id. 92:17-93:21. The DCYF representative allegedly told him that A.T. would not be allowed back in the home until DCYF was sure there was nothing harmful in the house. Id. 109:22-110:10. At some point thereafter, Det. Fuoroli attempted to call Pimentel again, but was unsuccessful. Id. 88:10-12.

         When Pimentel arrived at the scene thirty minutes later, she immediately went to console A.T., who was visibly upset, and then asked a third CPD officer, Officer Comella, whether she could leave with A.T. Id. 32:13-18; 226:23-227:14. Officer Commella told her “no” and that she “had to wait.” Id. 227:11-14. Officer Commella did, however, agree to let A.T. sit in the back of Pimentel's car while they waited for the detectives to come talk to her. Id. 98:1-8. Det. Fuoroli briefly came over to obtain Pimentel's driver's license and confirm her name and address. After providing the requested information, Det. Fuoroli walked away and Pimentel asked Officer Commella if she was free to leave; again, Officer Commella told her “no.” Id. 229:1-19.

         When Det. Fuoroli returned a few minutes later, Pimentel asked him directly if she could leave with A.T. Id. 101:7-24. He told her “no” and explained that Almonte had been “caught” in the middle of a drug transaction, that CPD had recovered heroin and fentanyl from the scene, and that DCYF had been contacted. Id. 36:22-37:5; 231:20-24. After confirming that she and A.T. shared a residence with Almonte, he asked Pimentel whether there were any weapons or narcotics at the home. Id. 37:9-25. Pimentel denied any knowledge of narcotics at their residence but explained that Almonte used to have a drug problem and stated that he had recently been “drug sick.” Id. 38:4-6; 245:21-24. Det. Fuoroli then asked if she would consent to a search of the apartment. Id. 38:15-16. Pimentel claims that she flatly refused and stated “I don't feel comfortable” signing a consent form. Id. 230:13-17. Det. Fuoroli claims that Pimentel's refusal was not so explicit and claims that she only “[s]hrugged her shoulders and huffed and puffed and gave [him] a stare” that lasted approximately twenty seconds. Id. 106:20-23. In any event, Det. Fuoroli responded to Pimentel's reluctance to sign the form by “explaining to her that it would probably be in the best interest of the child that there be no harmful narcotics in the apartment.” Id. 38:20-23. In response, Pimentel asked whether DCYF was going to take A.T. away, to which Det. Fuoroli replied that “DCYF was not going to let her back into the apartment until they're satisfied that nothing harmful is in the apartment.” Id. 108:20-24, 109:1-3. At that point, Pimentel asked how the search would be conducted and Det. Fuoroli assured her that CPD officers would not “tear apart the apartment, break anything” and that she could “be present during the search.” Id. 39:3-12. He then asked Pimentel for a second time if she would consent to a search of the home. 109:1-7. Pimentel verbally consented to the search and Det. Fuoroli briefly left to retrieve the consent form. Id. 39:14-24.

         When he returned, Det. Fuoroli filled out his information on the form and read its contents to Pimentel before handing it to her. Id. 42:3-4. The form stated, in pertinent part:

I, Williana Pimentel, having been informed of my rights not to have a search made of the premises and/or vehicle described below without a search warrant and my right to refuse to consent to such a search, do authorize Det. Fuoroli/Det. Dempsey of the Cranston Police Department to conduct a complete search of my premises and/or vehicle . . . .

Gov't Mem. in Supp. of Resp. (“Gov't Mem.”) 5, ECF No. 20-1. Before signing, Pimentel asked Det. Fuoroli what would happen if she did not sign the form. Hr'g Tr. 42:5-8. He replied that “more than likely we would have to secure the apartment and we may apply for a search warrant.” Id. 42:12-13. Although she admits that she ultimately signed the form, Pimentel testified that she never read the form and that she believed she had to sign the form in order to leave with A.T. Id. 110:14-24, 230:13-231:4, 238:13-24. Pimentel signed the form at 3:50 p.m., at which time, Det. Fuoroli called DCYF to update them about the situation and inform them that they were going to Almonte's apartment. Id. 105:23-106:4. Pimentel was allowed to leave with A.T. and CPD officers followed them to their residence to execute the search of the apartment. Id. 113:12-20. In all, Pimentel spent between ten and thirty minutes at the McDonald's parking lot before she was allowed to leave with A.T. Id. 32:13-18; 95:18-19; 167:16-19.

         During the search, CPD officers seized heroin, fentanyl, marijuana, various drug paraphernalia, a firearm, and $942.00 in cash, all of which was used to charge Almonte with possession with intent to distribute fentanyl and possession of a firearm in furtherance of drug trafficking. Gov't Mem. 7; see also Criminal Compl., ECF No. 1. After the search, Det. Fuoroli called DCYF for a third time to ensure that A.T. could stay with Pimentel at the apartment, given that narcotics and weapons had been found there. Hr'g Tr. 138:6-18. DCYF told him to release A.T. to her mother and so Det. Fuoroli and the other CPD officers wrapped up ...


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