United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
William E. Smith Chief Judge
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.
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. For the following reasons,
the Court DENIES the motion.
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.
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.
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.
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.
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.
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.
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 ...