MICHAEL P. SHEA, District Judge.
Early on the morning of July 15, 2015, police officers with an arrest warrant for Jose Vasquez knocked on the door to his apartment and announced their presence and purpose. After a short wait, they broke through the door, entered, and found Mr. Vasquez and his wife in bed. While assisting Mr. Vazquez to dress, the police saw heroin and cash fall from pants pockets or become exposed to plain view in a clothes hamper.
Mr. Vasquez, who is charged with heroin distribution offenses, has moved to suppress the evidence found in the apartment, as well as statements he made that day, on the ground that the officers violated the Fourth Amendment's "knock-and-announce" rule before forcibly entering his home. His motion requires me to decide whether the officers waited an adequate amount of time before breaking into his home to comply with the rule, and if not, whether suppression is the proper remedy for the violation.
After considering the evidence introduced at a two-day hearing, I find that the police did not wait long enough to give Mr. Vasquez an opportunity to come to the door and thus violated the knock-and-announce rule. Further, in the absence of an applicable Second Circuit precedent, I adopt the reasoning of the D.C. Circuit in United States v. Weaver, 808 F.3d 26 (D.C. Cir. 2015), as to why the exclusionary rule should apply to a knock-and-announce violation committed while executing an arrest warrant at a suspect's home, even though it does not apply to one committed while executing a search warrant at the home under Michigan v. Hudson, 547 U.S. 586 (2006). I therefore find that the unlawful entry into Mr. Vasquez's home calls for suppression of the evidence obtained during execution of the warrant, including statements he made at the home. I do not find, however, that it calls for the suppression of the separate admission made later by Mr. Vasquez at the command post during booking. I therefore GRANT in part and DENY in part Mr. Vasquez's motion to suppress (ECF No. 44).
At the evidentiary hearing, the government called Connecticut State Police Detective Christopher Walsh, Connecticut State Police Sergeant Charles Burns, and Drug Enforcement Agency (DEA) Supervisory Special Agent John Rubinstein as witnesses. Mr. Vasquez called his wife, Elizabeth Vasquez, as a witness. Based on the parties' evidentiary presentations, I make the following findings of fact.
Early in the morning on July 15, 2015, officers from the Connecticut State Police and the DEA gathered to execute a series of approximately 19 warrants relating to alleged drug trafficking crimes. (Hr'g Tr. Vol. I
(Id. at 17-18, 22.) Sergeant Burns repeated this assertion on cross-examination:
(Id. at 72.) Nor did the officers receive specific information suggesting that they should anticipate to find narcotics in Mr. Vasquez's residence:
(Id. at 183-84.)
100-102 Washington Street is a three-story, multi-family dwelling containing three full-story apartments. (Id. at 152.) The officers arrived at the residence around 5:45 a.m. (Id. at 76.) Upon arriving at the building, the officers split into groups, each approaching one of the multiple entrances to the building. (Id. at 103.) One group entered the building through an unlocked side door,
The officers had information that Mr. Vasquez lived on one of the upper levels of the building. (Id. at 27-28.) After they reached the second floor, it became clear to the officers that the second floor unit was vacant: a hole in the second floor unit door where a deadbolt normally would be provided the officers with a clear view into the empty apartment. (Id. at 28.) The officers then climbed the stairs further, which led them to a landing in front of the closed and locked third floor apartment door. (Id. at 28-29.)
Preparing to knock on the door of the third floor unit, the officers stood in a single-file "stack." (Id. at 29.) The officers did not say anything to one another before knocking on the door. (Id. at 30.) Sergeant Burns was located towards the middle of the stack, (id. at 129), and Detective Walsh was located towards the front (see id. at 30). Special Agent Rubinstein was outside of the building at the time. (Id. at 33.) After confirming with a United States Marshal that Vasquez resided in the third floor unit (id. at 32), Detective Walsh banged loudly on the door with the side of his closed fist and yelled that the State Police were present with an arrest warrant (id. at 34-35).
The testimony presented by the parties conflicted with regard to the amount of time that elapsed between Detective Walsh's knock and the officers' entry into the apartment. Because I find Ms. Vasquez's testimony more credible than Detective Walsh's testimony on this issue of fact, I find that fewer than ten seconds elapsed between Detective Walsh's knock and the officers' breach.
Ms. Vasquez testified to the following. In July of 2015, Ms. Vasquez lived in Reading, Pennsylvania, but visited Mr. Vasquez in Connecticut periodically. (Hr'g Tr. Vol. II at 202-03.) Ms. Vasquez drove to West Haven on July 13, 2015, to stay with Mr. Vasquez. (Id. at 246.) She brought her three dogs. (Id. at 210.) Prior to this trip, the two stayed at a hotel when Ms. Vasquez visited, but on this occasion they stayed in Mr. Vasquez's apartment at 100-102 Washington Street. (Id. at 247, 249.) The bedroom in which the two slept contained only an air mattress, a television, and a laundry basket filled with folded clothes that Ms. Vasquez had brought from Reading. (Id. at 218-19.) In the evening, the dogs slept in the bed with Mr. and Ms. Vasquez. (Id. at 213-14.) Ms. Vazquez testified that the dogs agitate easily and bark often. (Id. at 213, 218, 305.)
In the early morning of July 15, Ms. Vasquez got up from the air mattress, turned off the window air conditioner in the bedroom, and went to the bathroom. (Id. at 214-16.) After returning to bed, she "dozed off." (Id.) At some point soon after, Ms. Vasquez, not yet in a "deep sleep," heard a loud bang on the apartment door. (Id. at 216.) The dogs began to bark. (Id. at 218.) A second bang came soon after, and police officers were suddenly in the apartment, yelling, "DEA, search warrant." (Id. at 216.) One of the dogs jumped off of the bed. (Id. at 218.) The bedroom door was slightly ajar at the time, and the officers quickly entered the bedroom with guns pointing at Mr. and Ms. Vasquez. (Id. at 217, 220.) When the officers entered, Mr. and Ms. Vasquez were still in bed. (Id. at 217-18.) Although she did not provide a specific estimate of the time between the knock-and-announce and the breach of the door, the gist of Ms. Vasquez's testimony was that it was very short—certainly less than ten seconds. (Id. at 216 ("[R]ight after that I heard another bang and I heard DEA, DEA search warrant. And they rushed into the apartment.").)
Detective Walsh testified to the contrary. He stated that upon reaching the landing leading to the third floor apartment door, he heard the sound of "movement" and "commotion" inside the apartment, and that after he knocked, he continued to hear movement. (Id. at 33-35.) Detective Walsh took the movement to mean "that somebody inside was either attempting to flee or destroy or hide evidence" (id. at 35), although he did not explain why, before any knock or announcement was made, he interpreted such sounds in the early morning hours to be a sign of flight or evidence destruction. When asked how much time elapsed between the knock and announce and the breach, Detective Walsh hesitated, and then testified, "I would say maybe — maybe 10 to 20 seconds." (Id.) The parties agree that Mr. and Ms. Vasquez were found in bed when the officers entered the bedroom.
On the issue of how long the officers waited before breaching the apartment door, I find Ms. Vasquez's testimony more credible than Detective Walsh's testimony.
Detective Walsh's inability to recall the specific details of the warrant execution is not surprising: he testified that he has executed warrants at three-family wood frame houses—the same type of building as Mr. Vasquez's residence—hundreds of times (id. at 10), has done 50 to 75 entries since the July 15, 2015 entry (id. at 93), and in total, has "knocked down" a "couple thousand" doors (id. at 80). What is surprising—and, in my estimation, not credible—is that he could recall the specific amount of time the officers waited between knocking and breaching the door. Further, Detective Walsh's hesitation, "maybe" qualification, and overall demeanor suggested that he was not confident in his answer on the lapse of time before breaching the door.
In contrast to Detective Walsh's inability to recall the details of the events of July 15, 2015, Ms. Vasquez provided significantly more texture in her narrative of the events of that morning.
The fact that Mr. and Ms. Vasquez were still in (or on) their bed when the officers entered their bedroom—a fact the parties do not dispute—also supports Ms. Vasquez's account more than Detective Walsh's. If the officers had waited more than ten seconds, it is likely that either Mr. or Ms. Vasquez would have gotten out of bed by the time the officers entered the room. The fact that neither was out of bed when the officers entered the bedroom suggests that the officers waited an insufficient amount of time to allow the occupants of the apartment to answer the door.
I note, however, that Ms. Vasquez was not a flawless witness at the suppression hearing. Her testimony that she observed an officer search the laundry basket in the bedroom while she was standing in the living room contradicted her affidavit, in which she stated that she "saw [the officers] start to search the basket as they were removing me and my husband from the bedroom." (ECF No. 45, at ¶ 12.) Further, Ms. Vasquez testified on direct examination that she was outside of the bedroom and could see the officers search the laundry basket, but on cross-examination, conceded that she could not view the basket from where she was standing, but rather had inferred that the officers were searching the basket based on what she could see. (Compare Hr'g Tr. Vol. II at 233-37 with id. at 292-95.) She also contradicted her statement in her affidavit that the police dog did not leave the living room when she testified at the hearing that an officer brought the dog into the bedroom to identify marijuana found in a closet. (Compare Aff. ¶ 14 with Hr'g Tr. Vol. II at 296-97.) While her contradictory statements on these points hamper her credibility as a witness generally, her inference that the officers were searching the basket was not unreasonable because there were no other items in the bedroom other than the bed and television.
Because I find Ms. Vasquez's testimony more credible on this point, I find that the officers waited fewer than ten seconds after the knock and announcement before breaching the apartment door.
Upon breaching and entering the apartment, Detective Walsh turned right, entering a bedroom where Mr. and Ms. Vasquez were sitting on a bed. (Hr'g Tr. Vol. I at 41.) Detective Walsh pointed his gun at the two in the bed and instructed them to lie on the ground with their hands raised. (Id. at 42.) Both complied, and Ms. Vasquez was directed to the adjoining living room. (Id. at 113.) After Mr. Vasquez was handcuffed, Sergeant Burns read him his Miranda rights. (Id. at 115.) Other officers encountered a third individual in another room of the apartment. (Id. at 45.) Special Agent Rubinstein entered the apartment at some point soon after the officers breached the apartment door. (Id. at 49.)
Inside the bedroom, Mr. Vasquez was dressed only in underwear. (Id. at 115.) After he was handcuffed, Detective Walsh asked him which clothes he wanted to wear. (Id. at 50.) In response—with his hands cuffed behind his back—Mr. Vasquez silently nodded towards a laundry basket sitting on the bedroom floor by lifting his head in the basket's direction. (Id.) On top of the basket lay a pair of denim pants. (Id.) To ensure that nothing was inside the pockets before giving the pants to Mr. Vasquez, Detective Walsh lifted and shook them. (Id. at 51-52.) Cash and a black bag fell out of the pants and onto the floor. (Id. at 52.) The black bag had a drawstring that was not tied shut. (Id. at 55.) Detective Walsh picked up the bag. (Id. at 57.) By looking into the opening of the bag, he could see small glassine bags filled with what appeared to him to be heroin. (Id. at 57.)
The denim pants proved too large to fit Mr. Vasquez, and the officers would not allow him to wear a belt because belts are not permitted inside the detention facility. (Id. at 65.) Special Agent Rubinstein approached the laundry basket to find a more suitable pair of pants. (Id. at 160.) Standing above the laundry basket, he saw another bag inside the basket with an open zipper. (Id.) Inside the bag, he could see cash and a large plastic bag containing what appeared to him to be heroin. (Id.) The officers engaged in a field test of the substance, which indicated that it contained opiates. (Id. at 167.) When Special Agent Rubinstein asked whom the heroin belonged to, Mr. Vasquez answered that it was his. (Id. at 170.) In total, the officers were in the apartment for approximately 25 minutes. (Id. at 58.) At no time did any occupant of the apartment provide consent for the officers to enter or conduct a search. (Id. at 91.)
The officers transported Mr. Vasquez to the command post, where Mr. Vasquez was again given his Miranda rights. (Id. at 171.) At this point, according to Special Agent Rubinstein, things had "settled down." (Id.) Special Agent Rubinstein asked Mr. Vasquez a series of questions pertaining to Mr. Vasquez's biographical information, such as "name, date of birth, address, [and] family members." (Id.) When asked what his occupation was, Mr. Vasquez responded, "I'm a drug dealer." (Id. at 171-72.)
The issue of which party bears the burden of proof is less clear than one might expect.
Id. at 697-98 (citations omitted).
These cases beg the question of what amount of evidence is sufficient to satisfy the "prima facie" showing a defendant must make to shift the burden here. The term "prima facie" takes on different meanings in different legal contexts,
While Mr. Vasquez must prove by a preponderance of the evidence that the officers violated the knock-and-announce rule, it is the government's burden to establish, by a preponderance of the evidence, any exceptions to the knock-and-announce rule or the exclusionary rule, such as the existence of an exigency warranting deviation from the knock-and-announce rule, or that the officers would have discovered the evidence at issue even if they had complied with the knock-and-announce rule. See Murrie, 534 F.2d at 698 ("Clearly where police officers in breaking into a home in the nighttime have violated a constitutional standard, the burden of proof of exigent or exceptional circumstances to justify such a deviation from the Fourth Amendment is upon those who are seeking the advantage of the exception."); United States v. Stokes, 733 F.3d 438, 444 (2d Cir. 2013) ("The government bears the burden of proving inevitable discovery by a preponderance of the evidence.").
Vasquez argues that the officers' entry into his residence violated the Fourth Amendment and 18 U.S.C. § 3109
The justifications animating the knock-and-announce rule are (1) "protection of life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident," (2) "protection of property" against destruction caused by forced entry, and (3) protection of "those elements of privacy and dignity that can be destroyed by a sudden entrance. It gives residents the opportunity to prepare themselves for the entry of the police. In other words, it assures the opportunity to collect oneself before answering the door." Hudson v. Michigan, 547 U.S. 586, 594 (2006) (citations and internal quotation marks omitted).
If exigent circumstances exist, however, officers may forgo knocking, announcing, and providing an occupant time to answer the door without violating the Fourth Amendment. "In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards v. Wisconsin, 520 U.S. 385, 394 (1997).
This case presents three issues involving the knock-and-announce rule: (1) whether exigent circumstances existed at the time the officers breached Mr. Vasquez's door, (2) if not, whether the officers waited a sufficient amount of time before breaching the door so as to comply with the knock-and-announce rule, and (3) if not, whether suppression of the fruits of that unlawful entry is a proper remedy.
As stated above, the exigent circumstances analysis is objective: an exigency exists if, based on the totality of the circumstances at the time of the breach, an officer reasonably suspects that allowing an occupant of the residence sufficient time to answer the door would result in (1) danger to the officer or others, (2) futility, or (3) inhibition of investigation. See, e.g., Terebesi, 764 F.3d at 241. Based on my factual findings set forth above, I conclude that exigent circumstances did not exist here.
The Second Circuit has identified six factors to consider when determining the existence of exigent circumstances: (1) "the gravity or violent nature of the offense with which the suspect n.7 ("A number of States give magistrate judges the authority to issue `no-knock' warrants if the officers demonstrate ahead of time a reasonable suspicion that entry without prior announcement will be appropriate in a particular context. The practice of allowing magistrates to issue no-knock warrants seems entirely reasonable when sufficient cause to do so can be demonstrated ahead of time. But, as the facts of this case demonstrate, a magistrate's decision not to authorize a no-knock entry should not be interpreted to remove the officers' authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed."). No evidence presented during the hearing suggested that the officers obtained a no-knock warrant with respect to Mr. Vasquez. is to be charged," (2) "whether the suspect is reasonably believed to be armed," (3) "a clear showing of probable cause to believe that the suspect committed the crime," (4) "strong reason to believe that the suspect is in the premises being entered," (5) "a likelihood that the suspect will escape if not swiftly apprehended," and (6) "the peaceful circumstances of the entry." Terebesi, 764 F.3d at 241. With respect to the first factor, there was no evidence presented at the hearing that Mr. Vasquez was suspected of engaging in violent crimes. At the time, however, he had been indicted for trafficking in narcotics, which "is a serious crime." United States v. Fields, 113 F.3d 313, 323 (2d Cir. 1997) ("Analyzing the facts before in light of [the six exigency factors] it can be seen that . . . bagging a large quantity of cocaine crack is a serious crime . . ."). Second, there was no evidence presented at the hearing that the officers had a basis for a reasonable belief that Mr. Vasquez or any other occupant of the apartment was armed. Third, although there was no evidence presented at the suppression hearing about the bases for the grand jury's finding of probable cause, I assume without deciding that Mr. Vasquez's indictment, and resulting arrest warrant, provided a "clear showing" of probable cause to believe he had committed the crime of conspiracy to distribute and to possess with intent to distribute heroin. Fourth, there were strong reasons to believe that Mr. Vasquez was in the apartment, as his vehicle was parked outside the building. (Hr'g Tr. Vol. I at 25.) Fifth, there was no evidence presented at the hearing that suggested Mr. Vasquez would escape if not swiftly apprehended—and the early morning hour at which the warrant was executed suggests otherwise. Finally, while not extremely violent, the manner of entry surely was not "peaceful." On balance, an examination of these factors is inconclusive in determining whether an exigency existed. But when the evidence is examined in light of the recognized bases for exigency in this context—danger, futility, and inhibition of investigation—it becomes clear that no exigency existed at the time the officers breached Mr. Vasquez's door.
With respect to a risk of danger, the officers were not aware of any information suggesting that Mr. Vasquez or the occupants of the apartment were armed or dangerous other than a generalized concern that those involved in dealing narcotics often have access to guns. For example, the officers were never told that Vasquez owned a gun, carried guns with him, or used guns when trafficking heroin. Cf. United States v. Fields, 113 F.3d 313, 323 (2d Cir. 1997) (holding suspicion of danger reasonable in part because of the defendant's "known potential for violence"). By itself, the generalization just mentioned—that those trafficking in narcotics often equip themselves with deadly weapons—cannot serve as the basis for a reasonable suspicion that knocking and announcing will risk endangering those in the area under the Supreme Court's decision in Richards. In that case, the Court invalidated a state rule permitting officers to forgo knocking and announcing when executing any search warrant in a felony drug case. 520 U.S. at 394 ("[T]he fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case."). Further, there was no reason to believe that knocking, announcing, and providing the occupants of Mr. Vasquez's apartment sufficient time to answer the door would have been futile. Based on the evidence presented, the officers who breached the door knew essentially nothing about Mr. Vasquez (or any other occupants of the apartment) other than the fact that he lived there. (See, e.g., Hr'g Tr. Vol. I at 72 (Detective Walsh agreeing that he "didn't know Jose Vasquez from anybody until about 5:00 that morning").)
Detective Walsh's testimony that he heard "movement" and "commotion" inside the apartment before and after he knocked on the door could be relevant to both exigencies of danger and inhibition of investigation. That testimony, however, lacked any sort of detail with regard to the commotion and movement's volume, location, pace, direction, duration, or proximity to the door.
Finally, with respect to inhibition of investigation, this case differs from Banks, where the officers were executing a search warrant at the defendant's house on the basis of specific evidence that the defendant was selling cocaine out of his residence. 540 U.S. at 33. Here, no evidence was presented suggesting that the officers had information that Mr. Vasquez was using the apartment to sell or stash heroin, or otherwise likely had heroin or any other easily destructible evidence in his apartment.
Because the evidence presented at the hearing does not support a conclusion that the officers reasonably suspected that they or others would be endangered, that compliance with the knock-and-announce rule would be futile, or that evidence would be destroyed if they did not breach the door when they did, I find that there were no exigent circumstances warranting deviation from the knock-and-announce rule.
Having concluded that no exigency existed at the time of the warrant execution, I must decide whether the officers' conduct fell within the contours of the knock-and-announce rule. As stated, I find that prior to entering the apartment, Detective Walsh banged on Mr. Vasquez's door with his fist and announced that the State Police were present with an arrest warrant. The officers thus complied with the first two of the three parts of the rule. The remaining question is whether, before entering, the officers provided the "occupant[s] a reasonable amount of time to reach the door." Terebesi, 764 F.3d at 241; see also 3 Search & Seizure § 6.2(c) (5th ed.) ("As for what constitutes lack of prompt compliance, the correct view is that, absent exigent circumstances, the occupant must be given a reasonable opportunity to come to the door at which entry is being sought.").
The determination of whether officers waited a reasonable amount of time after knocking is a function of the "precise length of time" between the officers knocking and breaching, United States v. Vozzella, 124 F.3d 389, 394 (2d Cir. 1997),
I conclude that it was unreasonable to breach the door after only a few-seconds wait subsequent to the officers' knock on Mr. Vasquez's door. Two circumstances in this case significantly impact this analysis: (1) the execution of the warrant in the early morning hours, and (2) the lack of specific information known to the officers about Mr. Vasquez at the time they arrived at his door. First, the officers arrived at the apartment sometime before 6:00 a.m. Apart from Detective Walsh's vague testimony that he heard movement and commotion, the government presented no evidence suggesting that anyone in the apartment was up and about when the officers arrived. A reasonable officer arriving at a residence so early in the morning would expect occupants to need additional time to get out of bed or at least to put on additional clothing before answering the door. At that hour of the day, absent clear evidence that the occupants were up and about, it was not reasonable to draw the inference after waiting fewer than ten seconds that the occupants had decided to refuse the officers entry to the apartment. Relatedly, at that hour, a reasonable officer would not expect an occupant to be awake and ready to dispose of narcotics at a moment's notice. The privacy interest animating the knock-and-announce rule is heightened in the context of an early-morning entry, when the occupants are likely sleeping and in night clothes: an occupant, upon waking, would need additional time to "pull on clothes" and "collect" herself before answering the door. See, e.g., United States v. Spriggs, 996 F.2d 320, 323 (D.C. Cir. 1993) (distinguishing that case from an early-morning warrant execution, "when it was not reasonable to assume that the occupants were awake and able to respond promptly"). Even if Detective Walsh did hear footsteps in the apartment at the time the officers approached the door, that fact alone would not have led a reasonable officer to believe that the occupants were attempting to flee or destroy evidence. Under the circumstances and without further elaboration by Sergeant Burns,
The other significant circumstance in this case is the lack of specific information the officers had about Mr. Vasquez at the time they knocked on his door. As noted, the government presented no evidence suggesting that the officers had information that Mr. Vasquez was dangerous or possessed weapons, or that narcotics likely would be found at the residence. If the officers had probable cause to believe narcotics would be found inside Mr. Vasquez's residence, they could have obtained a search warrant. (As discussed below, the presence of a search warrant would by itself have been enough to defeat the motion to suppress in this case.) "[I]n the case with no reason to suspect an immediate risk of frustration or futility in waiting at all, the reasonable wait time may well be longer when police make a forced entry, since they ought to be more certain the occupant has had time to answer the door." Banks, 540 U.S. at 41. While it cannot be said that the officers here had no reason to believe that heroin might be found in the residence—Mr. Vasquez was, after all, being arrested on a warrant for distributing heroin—considering the extra time the occupants should have been afforded to get out of bed and answer the door, the failure to wait more than ten seconds—and probably 15 or 20—was unreasonable.
For these reasons, it was necessary for the officers to wait longer than they did before breaching the door. Thus, the officers failed to comply with the knock-and-announce rule.
In Hudson, the Supreme Court held that a defendant is not entitled to an order suppressing fruits of a search when law enforcement officers violate the knock-and-announce rule in executing a search warrant. Mr. Vasquez argues that Hudson is not controlling because the officers in this case were acting with only an arrest warrant. I agree with Mr. Vasquez that Hudson does not control the arrest warrant context, and conclude that he is entitled to suppression of the evidence obtained during the July 15, 2015 arrest warrant execution.
The Second Circuit has not ruled on the question of whether Hudson's holding applies to the arrest warrant context. A split panel of the D.C. Circuit recently held that it did not. Weaver, 808 F.3d at 45 ("[W]e conclude that the exclusionary rule is the appropriate remedy for knock-and-announce violations in the execution of arrest warrants at a person's home."). Because I agree substantially with Judge Pillard's reasoning in her opinion for that court, I briefly outline the pertinent portions below.
First, the Weaver court distinguished the authority that a search warrant confers to officers from that arising from an arrest warrant:
Id. at 30-31. It then highlighted Justice Kennedy's
The Weaver court then addressed whether Hudson's holding applied to the arrest warrant context. Hudson emphasized that "[w]hat the knock-and-announce rule has never protected . . . is one's interest in preventing the government from seeing or taking evidence described in a warrant." 547 U.S. at 594. This language suggests that the Court was considering the search warrant context only, because "[s]earch warrants—and not arrest warrants—`describe' `evidence' and authorize officers to `take' that evidence." Weaver, 808 F.3d at 36. Because "the arrest warrant context is materially distinguishable from the search warrant context," the court found that Hudson did not control. Id. at 36, 37. Arrest and search warrants requirements "protect distinct privacy interests": search warrants permit officers to enter and rifle through a citizen's "castle," whereas officers equipped only with an arrest warrant may enter the home only when there is reason to believe the target is in her home and she refuses to surrender herself at her door. Id. at 37-39. In fact, privacy interests would prompt an arrestee to surrender herself at her door in order to "keep private and personal papers and effects in the home, or the fact or identity of a guest, from government agents' view. The Fourth Amendment's protection of the privacy of personal spaces, documents, and things at home applies whether or not they are evidence of wrongdoing or a potential source of embarrassment." Id. at 39.
Moving to the central question of whether the exclusionary rule should be applied in the arrest warrant context, the Weaver court addressed the "[t]wo factors [that] governed [Hudson's] consideration: whether there was a causal link between the violation and the seizure of the evidence and whether the rule's deterrence benefits outweigh[] the costs of excluding probative evidence." Id. at 34. With respect to causation, the Hudson Court had queried whether the knock-and-announce violation was the cause-in-fact of the officers' discovery of the evidence at issue, and whether that causation was too remote to justify exclusion. The Weaver court concluded that, in the arrest warrant context, causation is "clear and strong" because "[a]pplication of the knock-and-announce rule in the arrest warrant context enables the arrestee to protect his privacy at home by surrendering himself at the door." Id. at 42-43. By failing to provide the occupant an opportunity to do so,
Id. at 42 (emphasis added). "Suppressing evidence obtained in violation of the knock-and-announce rule thus directly serves the interests protected by the rule." Id.
It is true—as the Weaver court suggested at the conclusion of its opinion—that no causal link would exist if the officers would have discovered the evidence at issue even if they had complied with the knock-and-announce rule. But this proposition does not affect the differences in the causation analyses between search and arrest warrants. Rather, it is just a species of the "inevitable discovery" doctrine, which permits the admission of illegally obtained evidence if the government proves "that the evidence would have been acquired lawfully through an independent source absent the government misconduct." United States v. Eng, 997 F.2d 987, 990 (2d Cir. 1993).
Moving to the second factor, the Weaver court weighed the costs of applying the exclusionary rule against its benefits. The applicable costs are those identified in Hudson: judicial resources spent on defendants' knock-and-announce violation claims, overdeterrence (i.e., future officers waiting too long after knocking out of fear of violating the rule), and the loss of incriminating evidence at trial. Id. at 43. These costs are without a doubt substantial. Nonetheless, the benefits of applying the exclusionary rule, particularly deterrence, carry more weight. The law's capacity to deter unconstitutional police practices depends on officers' incentive to violate the right at issue, which in this context is significant:
Id. at 43. Because the incentive to violate the knock-and-announce rule in the arrest warrant context is powerful, the deterrent effect of exclusion carries significant weight. "When application of the exclusionary rule provides beneficial deterrence, and that benefit outweighs the costs of the rule, it applies." Id. at 34. Because that is the case in the arrest warrant context, suppression is appropriate when officers executing an arrest warrant violate the knock-and-announce rule.
I find Weaver's interpretation of Hudson—and its distinction between arrest and search warrants—to be persuasive, and also consistent with Fourth Amendment principles regarding the scope of authority conferred by a warrant. The authority an arrest warrant grants to enter a home is conditioned on (1) the police's reasonable belief that the suspect is inside, and (2) the defendant's refusal to come to the door. See Payton v. New York, 445 U.S. 573, 602-03 (1980) ("If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law."). If the latter condition is not satisfied—or if it is satisfied only because the police have violated the knock-and-announce rule, another Fourth Amendment protection—then the officers exceed the authorization to enter the home granted by the arrest warrant. Id. at 592-93 ("`In all cases when the King is party, the Sheriff (if the doors not be open) may break the party's house. . . . But before he breaks it, he ought to signify the cause of his coming, and to make requests to open doors; . . . . for the law without a default in the owner abhors the destruction or breaking of any house . . .'" (quoting Semayne's Case, 77 Eng.Rep. 194, 195-196 (K.B. 1603), and noting that the "context [of the quoted passage] strongly implied . . . that the court was describing the extent of authority in executing the King's writ." (emphasis added)). I see no reason to apply the exclusionary rule to such conduct any differently from the way it would apply to any other search or seizure that exceeds the scope of a warrant. See, e.g., United States v. Matias, 836 F.2d 744, 747 (2d Cir. 1988) ("[W]hen items outside the scope of a valid warrant are seized, the normal remedy is suppression and return of those items . . ."). As Hudson recognized, the same logic does not apply to a search warrant because the authorization to enter a home that such a warrant provides is not conditioned on compliance with the knock-and-announce rule or on an occupant's refusal to come to the door; rather, it is based independently on probable cause that evidence of a crime will be found inside.
I disagree with Judge Henderson's assertion in her dissent in Weaver that the vast majority of circuits have applied Hudson to the arrest warrant context. As the Weaver majority notes, only two cases from Judge Henderson's list—both from the same circuit—expressly state that Hudson applies to the arrest warrant context. But in neither of those two cases did the defendant raise, nor did the court discuss, the differences in causation analysis between search and arrest warrants. In United States v. Pelletier, 469 F.3d 194 (1st Cir. 2006), a defendant
challenged the search of his motel room when the police breached the door after waiting ten to fifteen seconds. Despite the court's statement at the opening section of its opinion that, "[t]his appeal requires us to determine whether Hudson should be extended to a knock and announce violation committed in the course of executing an arrest warrant," id. at 196, the opinion fails to analyze that issue in any depth. Rather, it rejects the defendant's contention that the officers lacked authority to enter his room, and then states, without further elaboration, "[b]ecause Hudson applies with equal force in the context of an arrest warrant, the district court did not err in refusing to order suppression based upon the officers' conceded violation of the knock and announce rule." Id. at 201. In United States v. Jones, 523 F.3d 31 (1st Cir. 2008), the court repeated the same proposition without any analysis: "we have recognized the absence of an exclusionary rule for knock-and-announce violations, provided the police have a valid arrest warrant . . ." Id. at 36 (citing Pelletier, 469 F.3d at 199). In neither case did the court grapple with the causation analyses discussed above. See Weaver, 808 F.3d at 41 ("Because we believe those distinctions are material to Hudson's analysis, the First Circuit's failure to acknowledge them undercuts those decisions' persuasive force.").
In sum, I find the Weaver court's analysis compelling, and agree that when officers equipped with an arrest warrant violate the knock-and-announce rule, the defendant is entitled to suppression of the fruits of that unlawful entry of his home. Because Mr. Vasquez proved (and the government failed to rebut) that the officers violated the knock-and-announce rule when executing Mr. Vasquez's arrest warrant, I grant his motion to suppress the narcotics and money found in his apartment on the morning of July 15, 2015, as well as the statement he made about those narcotics while in the apartment.
Mr. Vasquez's statement to Special Agent Rubinstein at the command post, in which he said that his occupation was "drug dealer," however, stands on a different footing. Mr. Vasquez's suppression motion and supporting brief make a general assertion that "any statements made" to the officers involved in this case should be suppressed. Although the suppression hearing did not focus on the question of whether the statement made at the command post should be suppressed, I find it should not be.
The Supreme Court has held that unlawful entries into a home in violation of the Fourth Amendment cannot serve as the basis for suppressing a statement made later at a stationhouse when there was probable cause to arrest the individual. In New York v. Harris, officers unlawfully entered the defendant's home—with probable cause but without consent or a warrant —to arrest the defendant in connection with a murder. 495 U.S. 14, 17 (1990). While the police were in his house during the warrantless entry, the defendant made incriminating statements in response to their questions. After the officers brought the defendant to the station, the defendant agreed to draft a written confession. Id. at 16. At trial, the defendant sought to suppress the written confession on the grounds that it was fruit of the unlawful entry into his home. The trial court suppressed the statements made in the home but not the written confession made at the police station. In the Supreme Court, the defendant argued that the stationhouse confession had to be suppressed as well. The Supreme Court disagreed, stating that the exclusionary rule did not extend that far: "we decline to apply the exclusionary rule in this context because the rule in Payton [requiring an arrest warrant to enter a house to effect an arrest] was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime. . . . Because the officers had probable cause to arrest Harris for a crime, Harris was not unlawfully in custody when he was removed to the station house, given Miranda warnings,
Id. at 19 (citations omitted) (emphasis added). The officers had a warrant to arrest Mr. Vasquez before bringing him to the command post, and Mr. Vasquez has not contested that the warrant was supported by probable cause. Thus, his statement made while at the command post cannot be suppressed on the basis that the officers had earlier unlawfully entered his home while executing his arrest warrant. Thus, I deny his motion to the extent it seeks to suppress that statement.
I recognize that application of the exclusionary rule imposes a burden on law enforcement officers. In the chaotic atmosphere of executing an arrest warrant, officers are understandably focused more on securing the scene than checking their wristwatches to ensure they have waited a sufficient amount of time before breaching an entrance. Yet the courts must ensure that the legal consequences of constitutional violations operate as a proper and adequate deterrent.
Further, I emphasize that the determinative circumstances in this case were not the result of decisions made in the heat of the moment. Rather, they were the result of decisions made either prior to the warrant execution or after Mr. Vasquez was detained: the officers chose to execute the warrant early in the morning, chose not to obtain—or were denied—a search warrant or a "no-knock" warrant, and chose not to document the amount of time they waited before breaching the door. As to that last circumstance, had the officers documented the length of time that they waited after knocking and announcing their presence—and had that documentation supported Detective Walsh's testimony that they waited more than ten seconds—the government's evidentiary presentation would have carried more weight, particularly given Detective Walsh's weak memory of the incident during the hearing.
Based on the evidence presented at the suppression hearing, I conclude the officers failed to provide Mr. Vasquez a reasonable opportunity to surrender himself at his apartment door. And because that failure calls for application of the exclusionary rule for the reasons indicated, the evidence the officers obtained inside the apartment cannot be used at trial. Mr. Vasquez's statement made at the command post, however, may be offered.
Mr. Vasquez's motion to suppress is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
THE COURT: Good morning. Please be seated.
We have a hearing on a motion to suppress today in United States versus Vasquez. The case is 15CR119.
Let's begin with appearances of counsel, please.
MR. HALL: Good morning, Your Honor. Gordon Hall for the Government. With me is Special Agent John Rubinstein of the Drug Enforcement Administration.
MR. WILLSON: Your Honor, good morning. Charles Willson for the Federal Defender's Office. To my left here is Mr. Vasquez.
THE COURT: Good morning, Mr. Willson, Mr. Vasquez.
So then Mr. Hall, are we prepared to proceed or, Mr. Willson, you wanted to say something?
MR. WILLSON: I do have a couple of things to say. One, from a more general standpoint, we are having some discussions about a possible partial resolution. This case is complicated a bit in that there's a potential forfeiture issue down the road, but we're talking about the possibility of resolving the other issues with a plea. I think it would be worth a little bit more time to have those discussions before starting the hearing.
The other issue I have to bring up is that Mrs. Vasquez was in the hospital last night in the emergency room.
THE COURT: I'm sorry to hear that.
MR. WILLSON: With Mrs. Vasquez, who is in the courtroom now, was in the hospital last night in the emergency room. She was in my office, quite frankly, at the end of the day. They'd come up from Pennsylvania. She looked very unwell, lots of swelling in the throat, neck area. She wasn't able to really speak with me for more than a few minutes. I have now a prescription that she needs to fill that I borrowed from them and she has an infection in her tonsils and also been a tooth infection as well. She earlier this morning, pursuant to the advice given, took a Percocet. She has a prescription where she's supposed to take five milligrams of oxycodone by mouth every four to six hours as needed for pain which, according to this, will cause sedation. I have to say she's taken something this morning, a little bit after seven o'clock. The timing to take the next dose, which she doesn't have in her possession yet, is probably right around the time she would take the witness stand here, roughly, assuming that each of the agents takes about an hour. That puts us there.
So in light of that, our first request probably would be for a continuance of the hearing. I know there was discussions when we were on the phone last week.
THE COURT: Let me—I obviously sympathize with Mrs. Vasquez, and I'll do what I can to accommodate her, but the agents I think are here. Those are the gentlemen sitting in the back, is that right, Mr. Hall? I know I recognize one of them from a trial I've had.
MR. HALL: These guys get around, don't they. There are two state troopers out in the hall.
THE COURT: He's got all his witnesses here. So we're going to go forward. Why don't we revisit sort of where we are with Mr. Vasquez when the Government gets done presenting its witnesses, unless the Government was going to call Mrs. Vasquez.
MR. HALL: I was not going to call her before the officers.
THE COURT: So you're prepared to proceed with the officers this morning?
MR. HALL: Yes, Your Honor.
THE COURT: So why don't we plan on that, and then see where we are. If Mrs. Vasquez is not feeling well, she's free to leave from my perspective. If she needs to go lie down, she should do that. She should get whatever medication she needs. That obviously is a priority. I'm not going to prevent her or you from putting in her testimony at some point. So whether we need to have a second day for this hearing, we will. I propose we proceed in that manner and that way allows us to be flexible. Who knows, maybe she'll be feeling better in a few hours. If not, that's fine. We'll deal with it.
MR. WILLSON: The other point, though, being if we could have a few more moments to converse.
THE COURT: Look, the hearing was scheduled for nine. I don't mean to be difficult, Mr. Willson, but I left an event to get here on time. I spent a lot of time preparing for the hearing. I'm sure that Mr. Hall at least had to make arrangements to have his people here. You've had to make arrangements to have your people here. Whatever you're able to agree on, we're not going to have a change of plea today, unless there's an agreement ready to sign. Is there?
MR. WILLSON: That's what we're discussing.
THE COURT: That may be what you're discussing. Here's the thing. I want to do as much of this hearing today as we can. I don't have all day. So if you're saying, Judge, we need five minutes, ten minutes, and we'll know one way or the other, I'll give you five minutes, ten minutes. If you're saying we need half an hour, 45 minutes, the answer's no, we're going to proceed. Which is it?
MR. WILLSON: I think in ten minutes.
THE COURT: We'll be in recess for ten minutes.
(Recess.)
THE COURT: Be seated, everyone. You're ready to proceed, gentleman?
MR. HALL: Yes, Your Honor.
THE COURT: Mr. Hall.
MR. HALL: One thing I would mention, I think that it would be appropriate for the witnesses to be sequestered.
THE COURT: I agree. So why don't—I don't know who your fact witnesses are. Let's make sure that only one of them, the person who is testifying is in the room. The case agent can stay, but other than that other fact witnesses should be in the hallway. I think that's true of Mrs. Vasquez as well.
MR. WILLSON: Right, Your Honor. So is the case agent testifying first?
THE COURT: I don't know. I don't know what his plan is.
MR. WILLSON: It would be our position that all three witnesses, the only person who should be in the room is the one that's going to testify. So if Agent Rubinstein is going to testify, we would ask—
THE COURT: You can put your client on, too. He has a right to be here. So I'm going to let the case agent stay.
MR. WILLSON: Well, my client's rights are different than the case agent.
THE COURT: That's true. But I'm going to let the case agent stay.
MR. HALL: There's also a rule we get to have a case agent.
THE COURT: Well, there's no rule. It's the Court's discretion. In any event, I'm letting the case agent stay.
Call your first witness. All other fact witnesses, including Mrs. Vasquez, need to step out of the courtroom.
MR. WILLSON: Our objection is just noted for the record.
MR. HALL: The Government calls Christopher Walsh.
CHRISTOPHER WALSH, a witness called by the Government, having been duly sworn, was examined and testified on his oath as follows:
THE CLERK: State your name, city and state, spell your last name, please.
THE WITNESS: Detective Christopher Walsh, WALSH, Hartford, Connecticut.
MR. HALL: May I proceed, Your Honor?
THE COURT: You may.
DIRECT EXAMINATION BY MR. HALL:
Q. Good morning, sir.
A. Good morning.
Q. Can you tell the Court how you're currently employed?
A. I'm employed by the Connecticut State Police presently assigned to Statewide Narcotics Task Force.
Q. And do you have a rank or classification or something with the State Police?
A. A detective, sir.
Q. How long have you been a detective?
A. Approximately, ten years.
Q. And before you were a detective, was there a time period during which you had served with the State Police?
A. That's correct. I did about five years as a road trooper at Troop H in Hartford.
Q. When you say road trooper, what do you mean?
A. The uniform personnel on the sides of the highway that you see when you drive around.
Q. Before your time as a road trooper, do you have any other prior law enforcement experience?
A. I did. I did about two years as a reserve officer in a small town in Massachusetts, Erving, Massachusetts.
Q. As a reserve officer, generally what did you do, was it general policing?
A. Correct, general patrol.
Q. Now, as a detective with the State Police, what is it that you do?
A. Our job in statewide narcotics is to identify and investigate drug trafficking organizations within the State of Connecticut.
Q. And have you been assigned to statewide narcotics the whole time you've been a detective?
A. That's correct.
Q. So ten years I think you said?
A. That's correct.
Q. And while generally that's the mission that you just described for the statewide narcotics group, specifically what kinds of things did you do—have you done in the past ten years as a member of that group?
A. I've been case officers in numerous narcotics investigations, weapons investigations. Also, frequently used as an undercover officer in a lot of these investigations, as well as assisting other agencies, whether it be the DEA or the FBI or a lot of municipal police departments as well.
Q. So over the time that you've been a detective, and in connection with these narcotics investigations and weapons investigations that you participated in, have you had occasion to make felony arrests?
A. Yes, sir. Felony arrests and we do a lot of our own entries.
Q. So being—can you tell the Judge what you mean when you say entry?
A. It would be the execute search warrants on residents, cars, persons, et cetera.
Q. And also executing arrest warrants, right?
A. Correct.
Q. And from time to time would that involve making entries into residents, cars, et cetera?
A. That's correct.
Q. Just so that it's clear, when you have a state arrest warrant, do you have an understanding as to whether you are authorized under Connecticut law to enter a residence in order to execute that arrest warrant?
A. A felony arrest warrant, yes, sir.
Q. Do you have need any other process in order to do that?
A. That's it, as long as you can identify that the person is in the residence.
Q. And have you had occasion to force doors with respect to these kinds of entries that you've had to make?
A. Yes.
Q. Have you executed arrests or search warrants in Connecticut at residences that were, say, three family wood frame houses?
A. Hundreds.
Q. Have you done those in the New Haven area?
A. Yes.
Q. In the Hartford area?
A. Yes.
Q. In the Bridgeport area?
A. Yes.
Q. And you say hundreds?
A. That's correct.
Q. And so would you say then, based on that, that you are generally familiar with apartments in three-family wood frame houses in Connecticut?
A. They all differ a little bit, but, yeah, I would say I'm familiar with them.
Q. So if you have to go into one, you have a general idea what you're going to find?
A. Yes, sir.
Q. And could you tell the Judge, roughly, how many felony arrests you've made?
A. I would say hundreds, Your Honor.
Q. And over the past few years with respect to your work with the Statewide Narcotics Task Force, have you been part of an entry team?
A. Yes.
Q. And has that team been personnel wise more or less the same or different over those years?
A. It's relatively the same. Some people change here and there, but the core group of people has remained.
Q. So who is the core group of people in your entry team?
A. It would be myself and three or four other detectives in the office.
Q. Can you name any of them?
A. Sergeant Burns, Detective Chapman, Detective Sean Kraus, Detective Lena.
Q. And on that entry team, do you guys always do the same specific things, each of you?
A. No.
Q. What do you do?
A. It depends on other assignments. So if I'm the case officer, for instance, I wouldn't be utilizing the breaching equipment to go through the door. However, if somebody else was the case officer, I could certainly could be assigned to utilize the breaching equipment on the door.
Q. And the breaching equipment, what is that generally?
A. It would be the ram and the Halligan tool, the tools to either push the door in or pry the door out.
Q. And you've operated both kinds of tools?
A. Yes, sir.
Q. And you've seen them operated by others?
A. Yes, sir.
Q. And then from time to time I think you mentioned that you work with other law enforcement agencies, right?
A. That's correct.
Q. So do you work with local police departments from time to time?
A. Yes, sir.
Q. And, also, do you work with various federal agencies from time to time?
A. We do.
Q. And have you worked with DEA?
A. Yes, sir.
Q. And have you performed entries in your work with DEA?
A. Yes.
Q. Can you say how many times?
A. I would say maybe 30 to 50 times.
Q. Okay. Now, drawing your attention to July of 2015, did you and the other members of your entry team become aware of a DEA investigation into the suspected distribution of heroin by Wilson and Jose Vasquez?
A. Yes.
Q. And in connection with that, do you know whether DEA made a request of your organization, the State Police, for one or more for your State Police units to participate in that investigation?
A. Yes.
Q. And was your entry team one of those units?
A. Yes.
Q. Now, up until the time that arrests were made in that case, did your unit—your entry team participate in the investigation that I've just asked you about?
A. Not to my—I definitely did not. I don't believe anybody did.
Q. But you did not?
A. That's correct.
Q. And what was your understanding that your entry team was being asked to do?
A. To serve a felony arrest warrant.
Q. On how many individuals?
A. On one.
Q. Were you also tasked with executing any federal search warrants?
A. No, sir.
Q. Or any state arrest or search warrants?
A. No.
Q. Just that one thing?
A. That's correct.
Q. And who was that warrant for?
A. Mr. Vasquez.
Q. This Mr. Vasquez here, Jose Vasquez?
A. Yes, sir.
Q. And prior to performing any tasks on that assignment, did you and the members of your entry team attend a pre-arrest or pre-operation briefing?
A. Yes.
Q. And do you recall who addressed the pre-operation briefing?
A. I believe you were actually one of them, but I believe there were several, and I don't recall exactly who it was.
Q. Would they have been either Special Agents or Task Force Officers of the DEA?
A. Yes, sir.
Q. Whoever they might have been, they were that kind of guy?
A. Yes, sir.
Q. What sort of things did they talk about—withdrawn.
Did they give you to understand your own assignment, the assignment of your entry team?
A. They do. They give an overall view of the case and then each specific task.
Q. From the overall view of the case, as you understood it, do you know how many arrest warrants were to be executed in this operation?
A. I believe it was 19.
Q. But 18 of those people were not your problem, right?
A. Exactly.
Q. And do you know how many, if any, federal search warrants were to be executed in connection with that operation?
A. I don't. I was just more concentrated on my specific task.
Q. And in the course of the briefing you said that you were generally advised about the nature of the investigation?
A. Yes, sir.
Q. Can you tell the Court what kind of investigation it was?
A. It's just a drug trafficking—
MR. WILLSON: Objection, hearsay, Your Honor.
THE COURT: Well, this is a preliminary proceeding. So under Rule 4(a), I think it is, the Rules of Evidence don't apply to this proceeding. That said, I don't have a problem if you want to make an objection for purposes of notifying me about the reliability of evidence, but I'm going to overrule the objection.
MR. HALL: Thank you, Your Honor. Just so it's clear, the reason I'm asking these questions is so the Court can appreciate what his understanding was about what he was going to do. That's really the point of it. I'm not offering it for the truth. BY MR. HALL:
Q. It's a drug case?
A. Yes. To my understanding, it was a large scale drug trafficking organization.
Q. And was there any part of the briefing in which either the DEA personnel advised you and the other people present about any particular concerns or steps you should take in approaching any of the suspects that you might be having to execute process on?
A. I believe they did. The particulars, I'm not sure. But basically at the end of the day that anyone involved in this type of organization we look at as a dangerous person. Just through training and experience, the connection with firearms is always there. So regardless of the past or what they said, we would consider these persons as possibly dangerous.
Q. And is that your practice customarily when you're doing state warrants for the State Police?
A. It is.
Q. In a drug case, large scale drug trafficking organization?
A. That's correct.
THE COURT: Can I just follow-up with one question?
MR. HALL: Yes, Your Honor, always.
THE COURT: At this briefing, did you receive any specific information about the defendant in that regard?
THE WITNESS: I may have, Your Honor. I just don't recall.
THE COURT: So as you sit here, you don't know?
THE WITNESS: That's correct.
THE COURT: Go ahead, Mr. Hall.
MR. HALL: Thank you. BY MR. HALL:
Q. And so were you also given to understand that assigned to your team there would be a DEA agent?
A. That's correct.
Q. And who was the DEA agent assigned to your team?
A. Special Agent Rubinstein.
Q. And as far as your understanding goes, based on the briefing and what other planning that you guys did before this, before you executed the warrant, what role was Special Agent Rubinstein to play in this thing?
A. He would be the case officer.
Q. And what would that mean?
A. He would basically be in charge of writing the reports, seizing the evidence, et cetera.
Q. As far as the operational details, that is, which of you does what within your team as far as the entry goes, did he have say-so over that?
A. No.
Q. And as it unfolded, did he in fact exercise say-so over that?
A. I'm sorry. Could you repeat that?
Q. So, for example, the way it actually happened, setting aside whatever you were told at the briefing, the way it actually happened, did Special Agent Rubinstein direct that one of you in particular would use the ram, one of you in particular would do whatever else you had to do to get in the door, that kind of thing?
A. No, sir.
Q. Was it fair to say that that was left pretty much to your discretion?
A. That's correct.
Q. You and the members of your team?
A. That's correct.
Q. Do you know whether the State Police even advised DEA of who on your team was going to use the ram or the torch or whatever it was?
A. I would doubt that. I mean, it would be Sergeant Burns. If anyone told them what we were going to do, it would be Sergeant Burns.
Q. And directing your attention to July 15th, sometime before 6:00, a.m., did you and the members of your team and Special Agent Rubinstein take any particular action with respect to this task that you were going to do? Did you go anywhere?
A. I believe once we left the main briefing we met at another area, just our group, and went over exactly what our plan was.
Q. And to the extent you can recall, what was your plan?
A. I can't really say for sure. I know that, you know, we had a particular house that they thought the target would be located in, a specific vehicle that he either owned or operated, and that would have been our plan, is to proceed to that area, that house, that target residence where we thought he was at.
Q. And that information was provided by whom?
A. Special Agent Rubinstein.
Q. And, again, you did not participate in the investigation before this, right?
A. That's correct.
Q. So this would have all been new to you?
A. That's correct.
Q. So you say you went to a general briefing. Was that different from the one that I was at or was it the same one?
A. Yeah. Typically we leave the larger briefing with everybody there, and then you kind of find the group you're assigned to and you have a separate smaller briefing just with the group that you're assigned to.
Q. I want to just go back. You've indicated you were aware there were other warrants being executed that day?
A. That's correct.
Q. Felony warrants?
A. Correct.
Q. Were you given any information to the effect of whether or not there were relatives of your defendant, your guy, Mr. Vasquez, who would be subject to arrest that morning also?
A. Yes, sir.
Q. And if you can recall, what were you told about that?
MR. WILLSON: Objection, Your Honor. Unlike the other question, this doesn't seem to lend anything as to what he was about to go do. So it seems irrelevant.
THE COURT: It's true that the rules of evidence don't apply, but why are we getting into this? Where's it going?
MR. HALL: The offer would be that the officer and the other members of the entry team had reason to believe that there were many other people whose places were being visited that morning. This is all in the New Haven area, relatively small area. I would bring out that these warrants are supposed to be executed at the same time, but they aren't necessarily. That there were people who were related—
THE COURT: Okay. I think I get it. I'll overrule the objection.
MR. HALL: Thank you, Your Honor.
Q. Let's see. Relatives. So what about the relatives? I think that's where we were, right?
A. I mean, at the briefing there were multiple targets. I know some of which were related to Mr. Vasquez. I don't recall which ones were, which ones weren't. And there was also some of them who did have violence in their past, their past police records, et cetera. However, I don't know which ones did and which ones didn't.
Q. But you're clear I think in saying that you were not given, as the Judge asked you, specific information that Mr. Vasquez was known to carry a weapon, for example, or was known to have engaged in gun play or something in the past?
A. That's correct.
Q. So any concern that you would have with him was really based on your general experience with these cases?
A. That's correct.
Q. So having been at the general briefing and then having gone to some kind of rallying point with your team, what did you guys then do?
A. I don't recall specifically what was discussed, but just generally what we do in the past is we just kind of get a game plan together before moving to whatever area we're going to be in.
Q. Did you proceed to the location of the—where you had been provided by the DEA where this man was thought to be?
A. Yes.
Q. And what sort of—and was this a building?
A. Three-family apartment, yes.
Q. Wood frame?
A. Correct.
Q. Had you been in that building before?
A. No.
Q. And were you provided by the DEA or any other source with sort of a floor plan of the units in that building?
A. No.
Q. Were you provided with information as to who lived on—you said three-family—in the units where your guy was not supposed to be?
A. We really didn't have any information on where he was in that building upon arrival.
Q. And how many doors were you guys going to cover? In other words, do you know how many entries there were to the building?
A. Well, it was a three-family. So there would be three entrance doors and probably three exit doors. So two per unit is typical.
Q. And, again, you didn't know that until you got there, right?
A. That's correct.
Q. And so your entry team—how many people were on your entry team?
A. I don't know for sure. It's typically around five.
Q. Around five. And did you all go in the same way or did you split up to cover other doors or how did that work? Tell the Judge, please.
A. In these cases, Your Honor, we always assign at least one or two people to the rear of the residence, whether there's an exit door or not, to secure for anyone fleeing out the back door and also, you know, any evidence, potential evidence that could come flying out the window when we make entry.
Q. And which door did you go to?
A. I believe it was—it was the front door. I went to the door we entered.
Q. Do you recall, as you're sitting here, the address of this place?
A. I don't, sir. I'd have to look at the police report.
Q. Do you know—have you been to houses on Washington Avenue in West Haven before?
A. I would say yes.
Q. But not this one?
A. Correct.
Q. So you went to what would be the front door?
A. Yeah, the front door where the entry team was.
Q. And so when you guys got to the front door—I don't mean the front door of the unit, I mean the front door of the building—did you guys, you and your entry team, have to force the entry door?
A. To the common entry, I believe, was unlocked. And that led to a staircase that basically went to the second and third floor apartments.
Q. Prior to entering the dwelling, you mentioned before that you had been given information about a vehicle that Mr. Vasquez was said to have operated from time to time. Was there any indication of the presence of that vehicle outside the building?
A. That vehicle was parked next to the dwelling.
Q. Was that vehicle parked on the street, like on Washington Avenue, or was it parked in a parking lot, can you recall?
A. I don't recall. I don't recall where it was parked. I know it was in the area of that building.
THE COURT: I'm sorry, I missed the part earlier when you said that you had given—been given information about a vehicle Mr. Vasquez had operated. At what point did you receive that information?
THE WITNESS: I believe it was at the—I mean, really, Your Honor, I can't say. I'm not sure when or even if I had that information. For instance, you know, Special Agent Rubinstein was in charge. As a case officer, he had that information. Really, our job was just to kind of—to go with him and, you know, if located, take him into custody without incident was, you know, what we were assigned to. I may have been told about the vehicle, but I may not have until we got there. I really can't say.
Q. But at some point before you actually entered the building, this was in your mind about the vehicle?
A. Correct. At some point I knew, but it could have been while we were at that building.
Q. And what, if anything, did the presence of that vehicle around the building mean to you?
A. Well, it gave some credibility to whatever information they had that he possibly could reside at that address. So certainly seeing the car that he operated in that area corroborated at least some of the information that they had about his residence.
Q. Now, ultimately you entered the unit that you thought he was in, right?
A. Correct.
Q. Before that happened, did you have any conversation with any residents of the building?
A. Personally, I did not.
Q. Do you know if members of your team did?
A. They could have, I just don't know.
Q. But you have no recollection of anything like that happening?
A. I don't.
Q. So when you went in the common door, which you said was unlocked, can you just describe very briefly for the judge what you see when you go in that door?
A. It's a series of staircases that lead up. So your first landing would be the second floor apartment, third floor landing would be the entrance to the third floor apartment.
Q. And what's on the first floor?
A. I don't—the first floor, I'm not sure if that was out of that common dwelling. Sometimes the first floor has its own entrance. But me particular went up that common stairway towards the second and third floor.
Q. Did you have information that led you to conclude that the person you were seeking was upstairs in the building?
A. Yeah. I believe we had information that he was on the third floor, but we weren't a hundred percent positive.
Q. Okay. So when you go up the staircase and you get to the second floor landing, can you see the second floor apartment from there, the entry to it?
A. Yeah, the second floor appeared to be vacant.
Q. Why do you say that?
A. You could see into the apartment and there was nothing in the apartment that would indicate that somebody was living there.
Q. How could you see into it?
A. I believe the doorknob and the dead assembly were missing from the door.
Q. So how did that let you see into the apartment?
A. You could see through the door, through the hole in the door where the doorknob assembly was.
Q. They're just gone?
A. They were gone, correct.
Q. So you could see right into it. And then having seen that, did you—what did you guys do?
A. We then proceeded up to the third floor.
Q. And was there a fourth floor?
A. No, sir.
Q. So when you get to the third floor, was there a landing or not?
A. Yes.
Q. So can you just describe for the judge what that looks like? You come up the stairs, you get to the top, you're at a landing. How big is the landing, where's the door, that type of thing, to the extent you remember?
A. To be honest, I can't remember the size of the landing in this particular apartment. I mean, I can tell you what they typically are.
THE COURT: Let's stick with what you remember.
A. I remember the landing and the door going into what was clearly the third floor apartment.
Q. Let me ask you this. When you guys are going to go through a door, do you guys go through the door like four abreast or something like that or do you go more like in a line?
A. In a line.
Q. And you guys call that something when you're right in front of the door?
A. A stack.
Q. A stack. And if you can recall, you formed a stack when you got up to that third floor door?
A. Yes, we did.
Q. Were you standing on the stairs still?
A. I'm not sure.
Q. You may have been on the stairs or you may have been on the landing?
A. Yeah. Depending on the size of the landing. If you were stacked up, I mean, if somebody had to go down a step to fit on a landing, it's certainly possible, but I'm not sure.
Q. So when you guys got to the door, where were you in the stack?
A. I'm not sure.
Q. Were you at the front?
A. Possibly.
Q. Did you have the entry equipment, the ram, torch, whatever it was?
A. I'm not sure if I did or not.
Q. And before taking any action with respect to the door of the apartment, did you guys do anything, have any talk or whispering among yourselves, you guys ready or anything like that?
A. No.
Q. You guys have worked together before, right?
A. Yeah. We've done this so many times there's really no discussions once you're at the door.
Q. So once you were at the door, what happened?
A. Once we were at the door, I specifically recall having to pause at the door.
THE COURT: Having to pause?
THE WITNESS: Correct. I remember having to pause at the door, trying to get confirmation that that was the apartment that he was in. I know the U.S. Marshals were involved to a certain extent about pinpointing his location through, you know, some sort of technology that I'm not really familiar with. However, you know, we were 99 percent sure that he was in that apartment due to the second floor being empty. This one was clearly occupied. There was mail in the mailbox, et cetera, not necessarily with his name on it, but it appeared to be occupied.
Q. Was that mailbox on the third floor or was it down by the entry?
A. I believe it was up on the third floor, but there was also—
THE COURT: And there was mail in the mailbox, did you say that?
A. That's correct. Not specifically with his name on it.
Q. Did you check that? Are you saying that there was none with his name or you're saying it was mail, I don't know?
A. We checked it. There was none with his name on it. And we were just waiting for confirmation that that was his apartment. At that time I heard movement within the apartment.
Q. Let's stop. The confirmation, how would that come to you?
A. That came from the U.S. Marshals.
Q. But how would you get it? I'm sorry. Withdrawn. Did you guys have radios with you or something?
A. That's correct.
Q. So you guys are in contact with, say, Special Agent Rubinstein, for example?
A. I wasn't necessarily myself, but somebody was.
Q. Somebody was. And then with the Marshals?
A. Correct.
THE COURT: Could you have him identify who actually was present on the landing, just the whole team at this point?
MR. HALL: I tried. I think he—
THE COURT: Maybe I missed that or maybe he didn't remember.
MR. HALL: I might have forgotten to ask. I'm sorry.
Q. So who was on the landing or maybe on the stairs a little bit? Who was out there?
A. It was me, Sergeant Chuck Burns, Detective Chapman, and myself.
THE COURT: Three people?
THE WITNESS: I believe so, Your Honor. There may have been somebody else. I would have to refer to the report.
Q. Was Special Agent Rubinstein on the landing with you guys?
A. I believe Special Agent Rubinstein was covering the back of the residence.
Q. So he was not on the landing with you guys?
A. Correct.
Q. And you don't recall who had the ram or whatever it was?
A. I don't.
Q. And you said you were waiting for confirmation?
A. Correct.
Q. Did you get that?
A. Yes.
Q. And then what happened?
A. At that point—at that point we ended up hearing or I heard movement within the apartment, and that's when we decided to breach the door.
Q. Was there any time when any of you knocked on the door?
A. Yes.
Q. When did that happen?
A. We knocked on the door just prior to breaching. So we heard commotion in the apartment, we knocked on the door. We waited a short amount of time.
Q. Let me stop you there. Did you knock on the door or did somebody else?
A. I knocked on the door. I knocked on the door as soon as I heard the movement inside the apartment.
Q. And did anybody say anything from your end, you guys?
A. Yes, sir.
Q. What?
A. We announced our purpose and authority, just like we always do. So it would be state police.
Q. What did you state?
A. State police with an arrest warrant.
Q. When you say you knocked on the door, you did that, right?
A. I did.
Q. Did you use your hand or did you use anything else?
A. Hand, fist.
Q. And so maybe—could you demonstrate by using that piece of wood that's in front of you there how you knocked on the door.
A. (Witness complies.)
Q. And did you make your announcement before or after you knocked?
A. After.
Q. And after knocking and saying what you said, did anybody open the door?
A. No.
Q. Did anybody come to the door?
A. No.
Q. Did you hear anymore noise inside?
A. Yes.
Q. And let me just make sure that I understand this. You heard noise before you even knocked?
A. Correct.
Q. What did that mean to you?
A. To me that meant that somebody inside was either attempting to flee or destroy or hide evidence.
Q. And when you heard noise after you knocked and announced, what did that mean to you?
A. Same thing.
Q. Now, can you say how long before knocking, how long you were on the landing, can you say?
A. I would say at least a couple of minutes.
Q. And you're out there looking at the mailbox and all that stuff. And can you say after you knocked or banged, really, and yelled or announced your presence and purpose, how long before you guys breached the door?
A. I would say maybe—maybe 10 to 20 seconds.
Q. And during that 10 to 20 seconds, you continued to hear noise inside the apartment?
A. That's correct.
Q. Is it fair to say that you thought the same thing about that noise that you thought about the noise that you heard before you began to knock?
A. Correct.
Q. And do you recall who—was it a ram or what was it?
A. It was a ram.
Q. And do you know who swung the ram?
A. I don't.
Q. Could have been you, could have been somebody else?
A. Correct.
Q. Did the door give way?
A. Yes.
Q. And when the door gave way, was there anybody standing in the doorway?
A. No.
Q. What did you guys do?
A. We then entered, spread out, and searched the apartment for persons.
Q. So how many people are we talking about? You, Chapman, Burns. Anybody else at that point upon making entry?
A. I believe that was it.
Q. So when you say you spread out, can you recall how that happened? Withdrawn.
Where did you go?
A. I went to the bedroom.
Q. So when you walk into the apartment, what's there?
A. The apartment—I don't know the specific layout of the apartment. I didn't look at anything prior to this. But I do remember it was a small apartment and there was very little furnishings in the apartment.
Q. So the room that you found yourself in when you got to the other side of the door, was there any furniture in that room?
A. A bed.
Q. I mean, you just walked in, there's a bed right there?
A. Upon entry it was just—I don't know—upon entry I would assume it was the living room or the kitchen. It wasn't the bedroom. But I can't say for sure what it was.
Q. Whatever that was, are you saying there was a bed in there?
A. No, sir.
Q. Was there any furniture in that room, whatever it was, when you first walked into the apartment? If you remember. If you remember.
A. I don't remember exactly what was in the apartment, but I do remember it was very limited furnishings. It was uncommonly empty.
Q. And you went to the bedroom you say?
A. Correct.
Q. How did you know where the bedroom was?
A. I didn't. I just—one person goes right, one person goes left, one person goes straight, and that's just where I ended up.
Q. That's what I was getting at actually. Which way did you go, left, right, or straight?
A. I don't recall.
Q. You found yourself in a bedroom?
A. Correct.
Q. Can you say how many steps? I don't mean remember count the stems, but how far was it from where you come into the apartment until you're in the bedroom?
A. I really couldn't say. If I try to put a number on it I'd really be guessing, but it was a small apartment.
Q. Okay. So you went in the bedroom. How did you know it was a bedroom?
A. When I entered the doorway of the room there was a bed in it.
Q. Was the door closed before you entered it?
A. I'm not sure.
Q. You went in there?
A. Correct.
Q. When you went in there, what were you wearing generally?
A. I would have been wearing a State Police tactical vest.
Q. Tactical vest being, does that have some sort of protective property?
A. Yes, sir. It's a ballistic vest with police markings on both the front and the back.
Q. What color were you generally dressed in?
A. In black with bright yellow lettering across the front and back.
Q. Did you have anything on your head?
A. I'm not sure. Nothing covering my face certainly, but I don't know if I had a ball cap on or a winter cap.
Q. Nothing covering your face?
A. That's correct.
Q. You didn't have a helmet on your head?
A. No, sir.
Q. Maybe a ball cap or something?
A. Correct.
Q. And you had this ballistic vest on?
A. Correct.
Q. Attired in black, yes?
A. Probably in my specific case would have been blue jeans.
Q. So the ballistic vest, what color is that?
A. It's like a really dark Navy blue/black vest with bright yellow lettering on it.
Q. And then you'd have jeans on?
A. Correct.
Q. What kind of shoes?
A. Timberland work boots.
Q. Heavy shoes?
A. Correct.
Q. Did you have a weapon?
A. Yes, sir.
Q. What kind of weapon did you have?
A. 645 caliber semi-automatic.
Q. That's a handgun?
A. Correct.
Q. By the time you entered the bedroom, had you drawn that weapon?
A. Yes.
Q. How were you carrying that weapon as you entered the bedroom?
A. In a ready position, out in front of my body.
Q. Could you demonstrate for the judge what that would look like?
A. (Witness complies.)
Q. And the other guys, Chapman and Burns, do you remember exactly what they were wearing?
A. Similar vests. As far as their pants or shoes, I couldn't say for sure.
Q. What about weapons?
A. Same weapons.
Q. And were they unholstered, do you know?
A. I believe they would. They should have been. I would assume they did have them unholstered, but I couldn't say for sure.
Q. Because you were busy?
A. Correct.
Q. When you went into the bedroom, you saw a bed?
A. Correct.
Q. What else did you see?
A. Mr. Vasquez sitting on the bed.
Q. Were you able to identify him at that point as Mr. Vasquez or what?
A. No.
Q. So male sitting on the bed?
A. Correct.
Q. And what else did you see?
A. I believe there was a female in the bed as well.
Q. Was he on the bed or in the bed?
A. He was on the bed.
Q. And what about her?
A. I'm not really sure.
Q. But she was in the room?
A. Yeah.
Q. Was there anybody else in the room?
A. No.
Q. Did you point your gun at them?
A. Yes.
Q. And did you say anything to them?
A. Yes.
Q. What?
A. Again, I don't know my exact words to them, but it's pretty much the same thing every time we do this. So I would have told him State Police, get on the ground, show me your hands.
Q. And when you say those things, when you said them in this case, would that have been in a conversational tone or would that have been in a more urgent tone?
A. Yeah, it would have been more like a yell or a holler. It would have been a fairly intense situation.
Q. And did the two people in the room, the male and the female, did they comply with your commands?
A. Yeah, I believe they did.
Q. Was there any resistance offered at all by them?
A. Not that I can recall, no.
Q. And while you were doing this, the other guys were?
A. While I'm doing this, the other guys are searching other areas of the house for people. They end up locating another person.
THE COURT: You're testifying as to your understanding as to general practice. Obviously, you didn't see what they were doing.
THE WITNESS: Exactly, Your Honor. But they would just fan out and go through the whole house to make sure if there were any other persons within the house they'd be properly detained.
Q. And why would that they do that? Not the detaining part. Why would they look around for other people?
A. Just for safety issues.
Q. Safety for whom?
A. Safety for both the officers and potentially for them as well.
Q. Because whether they had their guns out or not, they were armed, right?
A. That's correct.
Q. Now, ultimately was the male identified?
A. Yes.
Q. And who was he identified as?
A. Mr. Vasquez.
Q. And was the female identified?
A. She was.
Q. As whom, if you know?
A. I'd have to refer to the report.
Q. As far as you know—withdrawn.
And the other person that was found in the residence, was that person identified as far as you know?
A. Yes.
Q. Do you know who he was?
A. I don't.
THE COURT: I'm sorry. There was a third person found in the residence?
MR. HALL: Yes, sir.
THE COURT: I have the question, and the other person that was found in the residence, was that person identified as far as you know? I guess I missed the earlier question and answer when you said someone was identified. Maybe you can take him through that.
MR. HALL: I had asked the witness whether ultimately the male that he found in the bedroom was identified and that was Mr. Vasquez.
THE COURT: And the female was identified. And then?
MR. HALL: He doesn't remember who.
THE COURT: Yes.
MR. HALL: And there was a third person he mentioned.
THE COURT: Let's hear more the circumstances under which he saw that third person because this is news to me.
MR. HALL: I'd like to try to get the circumstances if I could turn this thing on.
THE COURT: You've shown these to Mr. Willson?
MR. HALL: Yes.
THE COURT: You've seen the pictures?
MR. WILLSON: He's sent me pictures before.
MR. HALL: I'm sorry, Your Honor.
THE COURT: Quite all right. BY MR. HALL:
Q. So that third person who was identified, you don't know who it was?
A. That's correct.
Q. But do you know whether either the female or that third person had outstanding warrants that morning?
A. Yeah. To my understanding, they didn't. Just because I know they weren't taken into custody.
Q. So now to go back to the bedroom with Mr. Vasquez. How was Mr. Vasquez dressed?
A. He was in his underwear, I believe.
Q. Did he have a top on?
A. I'm not sure.
Q. But he had underwear on the bottom?
A. Correct.
Q. And the female, how was she dressed?
A. I'm not sure.
Q. And you had said to the judge a minute ago that what you yelled to them was let me see your hands, get on the floor. So did these two people get on the floor?
A. Again, I'm not positive. And I'm not sure that's exactly what I said to them. So it could have been, you know, show me your hands, keep your hands. You know, whatever the command was, you know, they did comply. But I'm not exactly sure what I said. So I'm really not totally sure what they did, whether they actually got down on the floor or just showed their hands where they sat.
Q. And did you at some point put handcuffs on Mr. Vasquez?
A. Not a hundred percent sure if it was me or if somebody else came in to assist me, but at some point as a group somebody covered them while somebody handcuffs them.
Q. But you were there. Is it fair to say that you were in the room, in the bedroom, when Mr. Vasquez got handcuffed?
A. That's correct.
Q. And to your recollection, was the female also handcuffed?
A. I couldn't say for sure on her.
Q. Would that be typical?
A. It could go either way in that situation. Sometimes a female, if they're not known to be directly an influence in the case or the organization, sometimes they'll get treated with quite a bit of leniency and won't be handcuffed. But I couldn't say specifically in this case.
Q. So she may have been, she may not have been?
A. That's correct.
Q. But these people, to the extent they were handcuffed, that happened in the bedroom?
A. That's correct.
Q. Was there—did any of you indicate to Mr. Vasquez that he was under arrest?
A. Not until he was positively identified.
Q. How did that happen?
A. I really couldn't say for sure. I believe he might have said—you know, we asked him his name and he said it, and he didn't lie. But at that point, I mean, somebody would have somehow confirmed it was him.
Q. Going back to getting the cuffs on Mr. Vasquez and maybe the female. Were you joined at some point in the bedroom by other personnel?
A. Yes, sir.
Q. And do you know who joined you in the bedroom?
A. I can't say for sure who joined in in the bedroom. At this point people are starting—who were covering exterior doors and et cetera are starting to filter in now through the door, because they can hear that we've gained entry and have multiple people detained. So at this point people start filtering in.
MR. WILLSON: Objection. The reason I raise it is I can't tell if the witness is describing how things generally worked.
THE COURT: Let's clarify that, Mr. Hall.
Q. What you just said to the Judge, is that what happened or is that what usually happens?
A. That is what happened. Eventually everybody made their way into the apartment. I can't tell you the exact time they filtered in, but they most certainly filtered in.
Q. So you—handcuffs were applied to at least one of these two people and you—did you ask Mr. Vasquez, aside from his identity, did you ask Mr. Vasquez any questions at that point? You?
A. No.
Q. Do you recall if anybody else asked Mr. Vasquez any questions at that time aside from his identity?
A. No.
Q. You don't recall?
A. Nobody asked him questions, because at that point our job was done. So we thought. He said his name was our target. He was cuffed. Our job was over.
Q. With respect to the security sweep you described before, aside from that other male who was found, was anybody else found?
A. No, sir.
Q. Were any weapons found?
A. No.
Q. Just—okay. And do you know if at some point Special Agent Rubinstein appeared in the apartment?
A. He did.
Q. Can you say when that occurred?
A. I can't say specifically, no.
Q. To your recollection—okay.
So after you had Mr. Vasquez in custody, what was the plan?
A. The plan was to get clothes on him and turn him over to DEA, however they wanted to transport him and process him.
Q. Like you said, your job was done basically?
A. That's correct.
Q. Di you have to do with the processing?
A. No.
Q. And you mentioned getting clothes on him. Why do you do that?
A. Just because he needs some clothing on, you know, he's going to be walking outside.
Q. And how did you arrange that with Mr. Vasquez?
A. I asked Mr. Vasquez which clothes he wanted. He of course was handcuffed to the back, and he just kind of nodded towards there was a pair of pants hanging over a laundry basket in the bedroom.
Q. Can you just show the Judge how he nodded so that he can see?
A. (Witness complies.)
Q. And so—
MR. WILLSON: I didn't catch that.
THE COURT: Why don't you stand up.
(Witness complies.)
THE COURT: So I'm clear, when this happened, he was cuffed behind his back?
THE WITNESS: That's correct.
Q. So then you said you took that as an indication toward pants that were on the laundry basket?
A. Correct.
Q. Where was the laundry basket?
A. I believe the laundry basket was—it was in the bedroom. I believe it was up against the wall adjacent to the bed.
Q. When he did, that when he gestured like you just showed the Judge, could you tell what he was gesturing to?
A. The laundry basket.
Q. So you could tell?
A. Yes.
Q. Did you look at the laundry after he gestured?
A. Sure.
Q. Did you see a pair of pants?
A. Amongst other clothes, yeah.
Q. What did you do?
A. Picked up the pair of pants.
Q. Then what did you do?
A. Turned them upside down and shook them.
Q. Why did you do that?
A. That's just what we always do. You shake them out before—the pants have to be checked before you give them to him.
Q. Why?
A. To make sure there's no weapons or contraband in the pants before you hand them over to him?
Q. Why don't you just reach in the pockets?
A. Our reasoning is just that there's always a possibility of uncapped needles in the pockets of any clothing you pick up. So typically we give them a good shake before we go sticking our hands in the pockets.
Q. When you gave the pants a shake, were you in the bedroom?
A. Yes.
Q. And did you shake them over the bed or over the floor or what? Tell the Judge what you remember.
A. I don't really recall whether if was over the bed. I believe it was over the floor, but I couldn't say with a hundred percent certainty.
Q. When you shook the pants, did anything come out?
A. Yes.
Q. What came out?
A. Cash and a bag.
Q. Let me just pause here and show you a couple of photographs which I will mark as they come in if they do.
THE COURT: You'll mark as what?
MR. HALL: I will mark them if they come in as they do. I don't actually have stickers though.
THE COURT: Do we have stickers for him? We have stickers for you. You want to just mark them for ID. How many do we have?
MR. HALL: 8.
THE COURT: Mark those Government's 1 through 8 for ID.
MR. HALL: I'm sorry, Your Honor, an oversight.
THE COURT: That's all right.
Q. Just to go back a little bit. I'm going to show you what's been marked as Government's Exhibit 1. And I ask you—can you see that on the screen?
A. Yes.
Q. Can you tell me who that is?
A. Appears to be Mr. Vasquez.
Q. Mr. Vasquez?
A. Correct.
Q. And showing you Government's Exhibit Number 3. Can you tell me who that is? Can you see?
A. I can. There's a glare, but I can see. I'm assuming that's the female in the apartment. To be totally honest with you, I don't recognize her.
Q. So you don't know?
A. I don't.
Q. And showing you Government's Exhibit Number 2, do you know who that is?
A. Upside down.
THE COURT: That would be really hard to figure out.
THE WITNESS: Unfortunately, that doesn't clear it up either. To be honest, Your Honor, it's probably the third guy.
THE COURT: But you're not able to say?
THE WITNESS: That's correct. I don't know who he was.
Q. Fair enough. Now, when you said you shook the pants, there were drugs and money that you saw?
A. Correct.
Q. I'm going to show you Government's Exhibit Number 4 for identification. Can you tell us what that appears to you to be?
A. The sack full of drugs.
MR. HALL: At this point I'd offered Government's Exhibit 1 and Exhibit 4.
THE COURT: So when you say 4 is the sack of drugs, can you just be a little bit more specific?
THE WITNESS: Yes, Your Honor. This is—the along with the currency, this is what came out of the pants pocket when I shook it.
MR. WILLSON: Can I ask a question, Your Honor?
THE COURT: Sure. BY MR. WILLSON:
Q. So earlier when you testified you said you shook the pants, out came cash and a bag?
A. Correct.
Q. So that's the bag?
A. Correct.
MR. WILLSON: Nothing further.
THE COURT: 1 and 4 will be full.
MR. HALL: Thank you, Your Honor.
(Whereupon, Government's Exhibits Number 1 and 4 were marked in full.) BY MR. HALL:
Q. Now, with respect to what's pictured in Exhibit 4, that's the bag, right, that came out of the pants?
A. Correct.
Q. When the bag came out of the pants, did the bag remain closed?
A. I believe it remained closed, but it wasn't zip tied shut. So, in other words, when you picked it up you could clearly see what was inside of it.
Q. When the bag fell out of the pants, were any of the drugs visible to you?
MR. WILLSON: I think that question's been asked and answered a second ago.
THE COURT: Well, I'd like to hear it. I'm not sure it was. I'd like to hear the answer. So I'm going to overrule that.
A. I can't say for sure if it was or not, if you could see it while it was lying on the floor.
Q. The cash that came out, was that in the bag?
A. I believe the cash was separate.
Q. And you could see the cash?
A. Correct.
Q. At what point—
THE COURT: I'm sorry. Just so I'm crystal clear. What I heard you say is the pants drop on the floor, not sure if you could see drugs at that point, could see cash at that point. Don't let me put words in your mouth. Is that accurate?
THE WITNESS: Correct.
MR. WILLSON: Your Honor, I'm just going to note the records should speak for itself in terms of what he said already, because my memory is a little bit different.
THE COURT: That's fine. It's my job to decide the issue and I want to make sure I understand what the witness' testimony is. The purpose of the question was to make sure that I did. Go ahead.
Q. When you saw these objects, however they were come out on to the floor, what if anything did you do?
A. At that point I searched the pants by hand.
Q. And did you find anything else in the pants?
A. No.
Q. And was anybody else in the room when this happened?
A. Yes.
Q. Who?
A. I believe Sergeant Burns was in the room.
Q. Do you know whether Special Agent Rubinstein was in the room?
A. I'm not sure if he was or not.
Q. And so this bag is on the floor and cash is on the floor. Did you just leave it there?
A. I picked it up.
Q. Both?
A. Correct.
Q. So you picked up the cash and the bag?
A. Correct.
Q. When you picked up the bag, what could you see?
A. The glassine bags of heroin.
Q. And how could you see them? I mean, describe to the Judge—excuse me—but the bag appears to have a draw string on it. I want you to describe for the Judge what you saw when you picked up the bag exactly.
A. Your Honor, when you picked up the bag, you know, whether they were spilled out or not like this, I couldn't say. When I picked up the bag, the bag was not sealed shut. So, in other words, without manipulating the bag, you could see inside this bag. And through training and experience myself could clearly identify the folds inside is common with glassine bags of heroin.
Q. And did you say anything to any of your colleagues at that point?
A. Yes.
Q. What did you say?
A. I would have said to Sergeant Burns was right next to me that, hey, he's got drugs and cash here.
Q. And did you have occasion to at any point after that look at the laundry basket?
A. I personally did not.
Q. So then what happened to this stuff that's pictured in Exhibit 4 plus the cash?
A. This was turned over to Special Agent Rubinstein.
Q. So at some point then Rubinstein had joined you?
A. That's correct. At some point he did join us. The exact timing is unknown, but he did join us in that bedroom, that's correct.
Q. Would you tell the Judge, I mean, really roughly how long you were in the apartment?
A. It was a relatively short period of time. I would say total from entry to exit couldn't have been more than maybe—maybe 25 minutes or so.
Q. And you mentioned that there was not furniture in that first room that you entered when you went in?
A. Limited furniture, if any, correct.
Q. Limited, if any. Whatever you remember. And in the bedroom that you went into you said there was a bed, right, because the guy was sitting on it?
A. That's correct.
Q. Do you remember any other furniture in that room?
A. Again, I don't know specifically, but I remember that room as well, it had a bed in it, but there was limited furniture for a normal bedroom.
Q. Aside from the clothing that was in that basket, was there any other clothing that you saw in that room?
A. Not in my view.
Q. Did you have occasion to go into any of the other rooms?
A. No.
Q. So is it fair to say that you don't know how they were furnished?
A. The other—just the rooms that I went through I can speak for, correct.
Q. Which would just be the entry room and that bedroom?
A. Correct.
Q. And did you, you know, seize the drugs, take the drugs into custody or package them in any way or did someone else do that?
A. No, Special Agent Rubinstein would have been in charge of that.
Q. So you're standing there with the bag. You say you see glassine envelopes or folds in it that you recognize as typical of heroin packaging, right?
A. Correct.
Q. What did you do with the bag?
A. I would have handed them to Special Agent Rubinstein.
Q. Do you know what he did with them after that?
A. I believe him and Sergeant Burns sealed them in evidence bags.
Q. Did you see them do that?
A. I was probably there, but I couldn't say specifically that I recall it.
Q. I wanted to know what you saw. That's really what the point is. So you might have seen it, you don't remember?
A. That's correct.
Q. You know that happened because that's what happens, correct?
A. Correct.
Q. And did you Mirandize any of the subjects, the two males and female, Mr. Vasquez, the female, and the male?
A. No.
Q. Did anybody Mirandize any of them in your presence?
A. Sergeant Burns Mirandized Mr. Vasquez.
Q. Did that happen before or after the drugs were discovered?
A. Before.
Q. And was, to your recollection, after that, did anybody question Mr. Vasquez?
A. Not to my knowledge.
Q. If they did, you didn't see it?
A. That's correct.
Q. And it may not have even happened?
A. That's correct.
Q. And before he was Mirandized, was he questioned at all? I asked you before about identification, but now I'm saying at all.
A. Just about his identification.
Q. And who did that?
A. I'm not sure who asked him what his name was.
Q. But, again, he was cooperative with you guys?
A. Correct.
Q. Did there come a time when you became aware that additional drugs had been discovered in the apartment?
A. Yes.
MR. WILLSON: I'm sorry. Could I have that question repeated?
Q. Did there come a time when you became aware that additional drugs were discovered in the apartment?
A. Yes.
Q. Did you discover them?
A. No.
Q. Do you know who did?
MR. WILLSON: Objection. I assume he's just asking what he was told.
MR. HALL: No, I'm asking—
THE COURT: Overruled.
Q. Did you see who discovered the drugs? Or discovered any drugs? I'm sorry.
THE COURT: Now I'm confused. Let's start again.
MR. HALL: I'm trying to make it specific.
Q. Did you see who discovered any drugs aside from the ones that you found?
A. Yeah. I believe it was Special Agent Rubinstein and Sergeant Burns.
Q. And do you know—did you see where they were discovered?
A. In the laundry basket.
Q. Did you see that?
A. Yes.
Q. Did you see the drugs in place in the laundry basket?
A. I didn't, no.
Q. Did you see the drugs after—did you see any drugs after they had been removed from the laundry basket?
A. Yes.
Q. I'm going to show you what's been marked as Government's Exhibit 7, and ask you if you can tell the Judge what that is?
A. Plastic bag containing suspected heroin.
Q. And why do you say suspected heroin?
A. You just can tell by the color and the consistency of it.
Q. You can?
A. Yes, sir.
Q. So you handled heroin before?
A. Unfortunately, about every day.
MR. HALL: I'd offer that, Your Honor.
MR. WILLSON: Your Honor, I'd agree to it for the limited purposes of this hearing.
THE COURT: That's all it's coming in for.
MR. WILLSON: Just making sure.
THE COURT: This is Government Number 7?
MR. HALL: 7.
THE COURT: Government 7 will be full.
(Whereupon, Governemnt's Exibit Number 7 was marked in full.)
MR. HALL: Thank you, Your Honor.
Q. Directing your attention to sort of the bottom half of the photograph which I'm indicating. You said it looks like heroin, right, the whole thing?
A. Correct.
Q. Can you detect any difference in texture or color between what's at the bottom half of the photograph and what's at the sort of top half of the photograph?
A. Yes.
Q. And in your experience, can you describe any significance to the difference that you see?
MR. WILLSON: Your Honor, I'm going to object. More foundation, what the relevance of today's hearing is.
MR. HALL: I'll withdraw it. It's okay.
Q. This looks like heroin to you?
A. Correct.
Q. And was Mr. Vasquez removed from the apartment?
A. Yes.
Q. Did you participate in that?
A. I would say yes, but I couldn't say for sure. But I was certainly there.
Q. And when he left the apartment, to your recollection, was he wearing the pants that he had indicated he wanted to wear?
A. No.
Q. And why not?
A. Because they were too large. The waistband was too large. He couldn't wear them without a belt.
Q. And so why is that significant? Why is that a problem that he can't wear them without a belt?
A. Because the pants were too large. Without the belt they wouldn't stay up.
Q. Why couldn't he have a belt?
A. They won't let him have a belt in any lockup facility.
Q. So then the pants were not suitable, is that fair to say?
A. Correct.
Q. So was there other clothing that he wore?
A. Yeah, shorts. I believe he left in shorts.
Q. And where did those come from?
A. I'm assuming the same laundry basket, but I don't know for sure.
Q. Did you get the shorts?
A. I'm not sure.
Q. Did anything else—after all of the heroin was discovered, did anything else—was there anything else discovered in the apartment of investigative significance as far as you know?
A. As far as I know, no.
Q. Within the apartment, as far as you know, did anybody—well, withdrawn.
So then he was brought out of the premises, but you don't remember if you participated in that?
A. Correct.
Q. Did you help transport him?
A. No.
Q. Did you bring him, when he was outside the apartment, did you bring him to any transport vehicle, anything like that?
A. That's the part I'm not sure if it was me. Somebody would have. Whether it was me or not, I'm not sure if I was the one that escorted him from the door to the car.
Q. And aside from the identity question that you already told us about, you never asked Mr. Vasquez any questions yourself?
A. No.
Q. Now, you mentioned Trooper Chapman, right?
A. Correct. Detective.
THE COURT: How do you spell the last name?
THE WITNESS: Your Honor, it's CHAPMAN.
Q. Is he on the entry team?
A. He is.
Q. So he went into the apartment with you guys?
A. Correct.
Q. And he would have been one of the three that went left, right, or straight, correct?
A. Correct.
Q. Did there come a time while you were in the apartment that he left the apartment?
A. I'm not positive.
Q. Does Detective Chapman have custody of a dog?
A. Yes.
Q. And that's like a—what kind of dog is that?
A. It's a narcotics detecting canine.
Q. Did the narcotics detecting canine accompany the entry team into the apartment when you guys first went in?
A. No.
Q. Where was the dog, if you know?
A. The dog would have been in his car. In Detective Chapman's vehicle.
Q. In Detective Chapman's car, yes. And so at some point did the dog enter the premises as far as you know?
A. Yes.
Q. Do you know why? First, that's a yes or no question.
A. Well, I don't—let me just explain.
THE COURT: The question is do you know why the dog entered.
A. The—other than entry, the dog goes everywhere with Detective Chapman.
Q. They have a relationship?
A. Any canine handler.
Q. And so typically what do you guys do with that dog?
A. Typically they'll utilize the dog to perform a search of the residence.
Q. In this case, did that dog perform a search of the residence?
A. No.
Q. In fact, by the time the dog got there, what was the state of your operation in that apartment?
A. By the time the dog was there we were ready to leave.
Q. And to your—are you familiar with that dog?
A. Yes.
Q. Have you seen that dog alert to the presence of drugs and stuff like that?
A. Yes.
Q. Aside from as might regard anything that might have been found, did you see that dog alert to anything in the apartment?
A. No.
Q. And when you guys left, the dog left?
A. Correct.
Q. Other than this security sweep that you described, and then the events that you described to the Judge involving Mr. Vasquez, was there any other searching at that apartment that you're aware of?
A. No.
Q. Was Mrs. Vasquez or the female taken into custody?
A. No.
Q. Was she uncuffed before you left?
A. Yes. She may not have been cuffed at all but she certainly, if she was, she would have been uncuffed when we left.
Q. What about the other male, was he taken into custody by you guys?
A. No.
Q. Do you know what happened to him after you left?
A. No, sir.
Q. In fact, did you ever learn who he was?
A. No.
MR. HALL: I think that's all I have, Your Honor.
THE COURT: Okay.
Mr. Willson.
MR. WILLSON: Your Honor, I, too, am going to need some stickers.
Just four for now.
THE COURT: Why don't we use letters for these.
MR. WILLSON: Letters are fine.
BY MR. WILLSON:
Q. Good morning, Trooper Walsh.
A. Good morning, sir.
Q. Just a couple of things so I understand. So you're on this team that gets plugged in to do entries, is that right?
A. In this particular case, yes.
Q. Is that a team you're still on today?
A. No, sir.
Q. Was there a period of time when you were generally on an entry team and would get plugged in as needed?
A. The entry team would be in addition to our investigative work. So we would, for the most part, do the entire case from start to finish.
Q. So is there a chance perhaps that this Friday you could get put on to an entry team?
A. Yes.
Q. So it comes up as needed?
A. That's correct.
Q. And in this particular case, it came up, it wasn't a case you had been working on?
A. That's correct.
Q. And so at some point your team was notified that their help was needed?
A. That's correct.
Q. Who on your team would have been the one that would be the contact person in that situation?
A. Sergeant Burns.
Q. Not you?
A. That's correct.
Q. And before you did the search, do you recall how long ahead of time you knew that you were going to be going to West Haven on the morning of July 15th to do this entry?
A. I believe once we left the brief, we went directly to this residence. It was a fairly short amount of time. Maybe 20 or 30 minutes.
Q. So had you met that morning somewhere about 5:00 in the morning?
A. We met for a brief that morning, correct.
Q. Roughly 5:00?
A. Correct.
Q. So before 5:00 that morning, you didn't know anything about this case?
A. That's correct.
Q. You never looked at any of the evidence?
A. Correct.
Q. You'd never been involved with a wiretap?
A. Not this wiretap.
Q. Again, just asking about this case. You had not been involved with the wiretap?
A. Correct.
Q. You didn't know Jose Vasquez from anybody until about 5:00 that morning?
A. That's correct.
Q. And as you said earlier, you don't recall there being anything specific about him being dangerous or having a propensity to use guns or anything like that?
A. Correct.
Q. It's just your general training that sometimes there are guns even when we don't expect it?
A. Yes, sir, tool of the trade.
Q. Right. You were saying earlier you don't recall the specifics about how you were organized to go into the apartment, is that right?
A. That's correct.
Q. You might have been the ram guy, you might have not?
A. That's correct.
Q. And of the three people that are situated, do each one of those people have certain roles in that situation?
A. Not other than the person who used the breach tools, no.
Q. And earlier I think you indicated that there are two types of breach tools?
A. Correct.
Q. There's the ram?
A. Correct.
Q. What's the other thing?
A. The Halligan.
Q. And what do you do with that?
A. The Halligan is more or less a pry bar for out-swinging doors rather than in-swinging doors.
Q. And do you recall whether, as you're about to go into that apartment, whether one of you had one of those?
A. One of us—any time there's a potential to breach a door, there would be somebody with a ram and somebody with a Halligan.
Q. So you don't remember specially, but your expectation is that one of you would have had one and one would have the other?
A. Correct.
Q. And the third guy, what's he supposed to do in that situation?
A. The third guy makes entry, detain any persons located within the residence.
Q. Is he the communicator in terms of operating the radio?
A. Not necessarily.
Q. So someone could have a ram in one hand and a radio in the other?
A. That's correct.
Q. You indicated earlier there was some communication with Agent Rubinstein I believe?
A. Correct.
Q. And the Marshals Office?
A. Correct.
Q. Do you remember who was doing that?
A. I believe it was Sergeant Burns.
Q. Is that typically his role because he's sort of the main contact person?
A. He's the supervisor, correct, so he'd be in charge of any communications with somebody else or another agency.
Q. In terms of who's the ram guy, is that something where people specialize or you just take turns, how does that work?
A. Yeah, it can depend. There are certain guys that get it more than others just because of their sheer size and strength. Certain guys are left-handed and sometimes if you're standing on the opposite side of the door a left-hand swing is advantageous to a right-handed swing. And you have to be trained in the utilization of those tools as well.
Q. Have you been trained?
A. Yes.
Q. Do you tend to be the ram guy or do you tend to be one of the other guys?
A. I was—for the first six or seven years I was almost always the ram guy, but as we age that tends to get taken away from me and given to a younger person.
Q. Without much resistance, I'm assuming, as we age?
A. Yeah, exactly.
Q. And how old are you?
A. 41.
Q. How tall are you?
A. Five-nine.
Q. You look like a strong man. I don't want to assume anything. How much do you weigh?
A. About 220 pounds.
Q. So that day you're doing a job you've done many, many times before, right?
A. Correct.
Q. And you don't remember too much specific about how you were organized going in?
A. Correct.
Q. And you said that's a street I think where you thought maybe you'd done this at other times on Washington Street?
A. Yeah, I believe we have.
MR. WILLSON: Your Honor, may I approach the witness?
THE COURT: You may.
MR. WILLSON: Your Honor, just because this is our first time doing this together, is that something I should be asking each time?
THE COURT: No, certainly not for this proceeding. But when you're done doing whatever you're doing up there, just question from the podium.
Q. I've put in front of the witness a copy of a document that I've put here on the ELMO which is photograph marked as Defendant's Exhibit A. Prior to this hearing a number of photographs were provided to Chambers and also a copy to the Government, and I believe this was among them.
Trooper, do you recognize this building at all in the picture?
A. I assume it's the target building, but I couldn't say for sure. I think it was dark when we were there.
Q. That's a good question. You were there at about quarter to six, right?
A. Yes.
Q. And this is July 15th?
A. Yes, sir.
Q. Do you remember anything about the weather that day?
A. No, I don't.
Q. Do you remember it being hot, humid, anything?
A. I don't recall.
Q. Do you remember whether it was raining?
A. I don't recall.
Q. Do you know what day of the week it was?
A. I don't.
Q. Was this the sort of thing you do on the weekends or is it pretty much a Monday through Friday activity?
A. Monday through Friday.
Q. Do you recognize that street in general as Washington Avenue in West Haven?
A. I don't recognize it from the photo, no.
Q. Looking at the photo, does that give you any better memory as to where you would have entered the building?
MR. HALL: Did you want to offer the photo? I would object to the 100 Washington Avenue, West Haven part of it.
THE COURT: Just so I'm clear, do you want to lay more of a foundation? You don't really have one to put it in yet.
MR. WILLSON: I'm trying to get there, Your Honor.
THE COURT: That's fine. Why don't you keep going.
MR. WILLSON: To see if anything helps his memory. I'm confident I can put it in later with Mrs. Vazquez.
Q. You've had a minute or two to look at the photo. Does it help jar your memory at all?
A. It doesn't, to be honest with you.
Q. I'm just going to take it back from you.
A. Sure.
Q. So you don't remember whether it was dark or light?
A. I don't.
Q. Now, you said you were carrying a SIG Sauer?
A. Correct.
Q. And is that your firearm of choice in these situations?
A. It's the permit issued weapon.
Q. As the three of you are going in, do you all carry the exact same type of firearm?
A. I believe so. The only one that I'm not a hundred percent sure on that is Detective Chapman. He is a member of the State Police Tactical Team. So he does have other weapons that the rest of us are not issued so I can't say for sure about him, but the other state guys would have the same weapon.
Q. Do you have any recollection of being up on the landing before you went into the apartment what the other members of the entry team had on them for a weapon?
A. No.
Q. And Detective Chapman, you said he's part of the State Tactical Team. Does he have access to something bigger than a SIG Sauer?
A. I don't know what he has access. They do utilize other weapons so I'm not sure exactly.
Q. Like a riffle?
A. I don't know if it's a larger caliber. I assume it's not a larger caliber. So I don't know what you mean by bigger, frame or caliber.
Q. Something other than a handgun?
A. He does have access to those. And I'm not sure if he had that with him that day or not.
Q. So you're at the top of the landing. You don't really know who's doing what, but one of you is going to have the ram, one of you is going to have the pryer, right?
A. Correct.
Q. Third person doesn't have any sort of entry device?
A. Correct.
Q. Generally from your training, one goes left, one goes center, one goes right?
A. Correct.
Q. And you have some recollection in this case you went right?
A. No.
Q. You're not sure?
A. I don't know where I went. I just was clearing the house. So, in other words, if the person in front of me veered to the left or went straight and there was rooms off to the right, I would have gone right. However, I'm not saying that's the case. I don't recall the layout of this apartment.
Q. You remember that you ended up in a bedroom?
A. Correct.
Q. And earlier you did this thing where you knocked and you talked about the entry. Do you have a specific memory of that or is it like a lot of your testimony today, which is, this is how it works, this is how we do things?
A. I do have a specific memory of that. I mean, it is something we do every time but I do have a specific memory of it.
Q. If I ask you yes or no, let's try to stick with that.
So how many doors did you knock down in your career?
A. A couple thousand maybe.
Q. All right. And this is training that you've actually gone through, how to knock and enter an apartment or a house, right?
A. Correct.
Q. So not only have you done it in real life, you've done it in training a bunch, right?
A. That's correct.
Q. Have you trained others on how to do this?
A. No.
Q. And you said your memory is you probably waited about 10 to 20 seconds, right?
A. That's correct.
Q. In terms of the entries that you've done, do you more often than not do them around six o'clock, some point really early in the morning?
A. Well, in the last few years they tend to be that early in the morning, where the first five years I was in this unit it tended to be in the evening or at night. But the past few years they do tend to be early morning hits.
Q. So we're going to agree that six o'clock in the morning is early morning, right?
A. Correct.
Q. And depending on the time of year, it's dark, right?
A. Correct.
Q. You don't even remember whether July 15th was dark or not, right?
A. Correct.
Q. And you said you heard some movement, right?
A. Correct.
Q. Now, let me jump away from that for a second.
Agent Rubinstein, he was the one that was supposed to do the report?
A. Correct.
Q. Was there any other report as far as you know?
A. No.
Q. You didn't do a report?
A. No.
Q. Did you review his report?
A. No.
Q. Did you give him some information or notes for him to look at in preparing his report?
A. I gave him information at the scene.
Q. Okay. Verbally. Did you give him anything in writing?
A. No, sir.
Q. Did you shoot him an email later on?
A. No.
Q. Was there any texting conversation about it later on?
A. No.
Q. Had you worked with Agent Rubinstein before?
A. I have.
Q. Have you worked with him since, other than preparing for today or what you might have done with Agent Hall—excuse me—Attorney Hall?
A. I don't believe so. Possibly, but I don't believe so.
Q. So you've never reviewed any sort of arrest report for this case?
A. No.
Q. In fact, I think during your testimony you mentioned that you didn't really review anything before coming here today, is that right?
A. That's correct.
Q. You haven't looked at any documents?
A. I read through the report when I got here outside.
Q. You read through the arrest report?
A. Correct.
Q. Is that the first time you've ever seen that?
A. No, I briefly looked at it when it was emailed to me by the attorney. But before that I've never looked at it.
Q. Did you have any communications when it was emailed to you other than look at this?
A. Yes.
Q. What were those communications generally about?
A. Just informing me that a suppression hearing will be coming up, review the report, and make sure you're ready to testify.
Q. Did you have any meeting with him other than coming here this morning?
A. No.
Q. So you said you heard movement. You didn't hear anybody loading up a firearm, right?
A. No, sir.
Q. You didn't hear any grinding going on, like someone destroying something?
A. No, sir.
Q. No one shredding documents?
A. No, sir.
Q. You didn't hear a bunch of toilets flushing?
A. I did not.
Q. You didn't hear the sink running?
A. I did not.
Q. When you say movement, you mean basically some sort of foot steps?
A. That's correct.
Q. And meanwhile Agent Rubinstein, you believe, was covering another exit?
A. That's correct.
Q. And was there anybody in addition to Agent Rubinstein covering any exits, if you remember?
A. I don't recall.
Q. You said at some point normally there's about five of you that would do this together?
A. That's correct.
Q. So if there's three of you on the stairs, there's Agent Rubinstein, there's a decent chance that there's somebody else, right?
A. I believe there was at least another person at the rear of the house, yeah.
Q. Would that agent or trooper or whoever would have been paired up to be side-by-side with Agent Rubinstein or would he have covered some other exit or window?
A. It could have been either. I couldn't say for sure what his assignment was.
Q. At some point you said more people were in the apartment. Okay. Do you remember at any point the total number of officers or agents that were in the apartment?
A. I mean, I could estimate it, but I couldn't say for sure.
Q. The three of you that were on the stairs, who were those again?
A. Myself, Sergeant Burns, and Detective Chapman.
Q. What was Detective Chapman wearing?
A. Detective Chapman would have been wearing the same upper ballistic vest with the markings on it. And as far as his pants, I'm not a hundred percent sure.
Q. Was anyone wearing anything on their head?
A. Other than a ball cap or winter cap, not to my knowledge.
Q. When you went into the apartment with your guns drawn, did your gun have any sort of sighting device on it or targeting device on it?
A. Yes.
Q. Tell us about that.
A. It's a Para stock six hour sights.
Q. What does that mean?
A. It's just iron sights. So, in other words, it's not the laser beams, flash lights or anything like that. It's just a set of the standard iron sights.
Q. You know far more about firearms than I do. Okay. So would it be the type of thing where you would use it if you were holding the gun up so you're actually looking as opposed to down around your waist, that sort of thing?
A. That's correct.
Q. It doesn't project anything on to a wall or a target or anything like that?
A. That's correct.
Q. Do you remember about the others, what type of firearms they were using in terms of them having sights? You don't want to look over there, you want to focus on me or the Judge. Do you remember anything about—
A. I wasn't looking over there, to be honest with you.
THE COURT: Gentlemen, I get it. I tried a few cases in my day.
MR. WILLSON: I just saw his eyes drift off.
THE COURT: Just ask him a question.
Q. Do you remember anything about whether the others had any sort of sight devices on their firearms?
A. Sergeant Burns has the identical gun to me—as me. As far as Chapman, I have no idea
Q. Is Detective Chapman someone that you don't work with as often?
A. I do, but he's a member of the tact team so they have multiple weapons that they have access to.
THE COURT: Mr. Willson, can I just ask one question about the sights?
MR. WILLSON: Certainly.
THE COURT: I want it very clear, the sight, when you say it's an iron sight, we're talking it's on the barrel, is that right?
THE WITNESS: Yes, Your Honor. It's not on the barrel, it's on the slide. It's along that barrel portion. So there's a single point on the front and then a U-shaped iron sight on the rear. So you would line up the two.
THE COURT: Got it. Sorry. Go ahead, Mr. Willson.
Q. You leave the big briefing, you have sort of a small briefing, right?
A. Correct.
Q. At the big briefing you heard that a whole lot of activity is going on, not just Mr. Vasquez's case, right?
A. That's correct.
Q. And then you break into your small group?
A. Correct.
Q. And the small group is the people that are going to go to Jose Vasquez's place?
A. That's correct.
Q. And you're focusing on Mr. Vasquez's situation I'm assuming?
A. That's correct.
Q. And from that time until after everything has happened at the apartment, in that span of time, are you in contact with the other groups that are going off to other places?
A. Not me personally, no.
Q. Just so I understand the big group meeting, the big briefing, is there a lot of talk about each defendant or is it just more of an organizational thing about why we're all here today and then splitting up?
A. I think it's both. I think it's an overview as well as specific targets involved in the case.
Q. When you're in that briefing or in the small briefing, is there any discussion about whether we think Jose Vasquez is a night owl or maybe out at the casino or doing something at that time of day, is there any discussion about that?
A. I wouldn't say there's necessarily any discussion about that. It would be Special Agent Rubinstein telling us any pertinent information that we would need to know.
Q. And the pertinent information that you recall is that there's an expectation that he's going to be in an apartment at this address because his car was outside of it, right?
A. There was an expectation that he was going to be in that apartment. I believe there was more than just the vehicle being parked outside of it, but that would be a question for him.
Q. And you go to the apartment and pretty quickly you're able to assess that the second floor apartment probably doesn't have anybody in it, right?
A. That's correct.
Q. You don't kick the door down?
A. That's correct.
Q. You don't ram it or pry it open or anything like that, right?
A. Correct.
Q. It's pretty obvious that you're on the stairwell and there's another door likely up to the third floor apartment, right?
A. Correct.
Q. And proceeding up that stairwell, you don't have to go through other doors, it's just there's another door at the top? If you remember.
A. I don't recall specifically.
Q. You said when you kicked in and you found the guy that turned out to be Jose Vasquez, he was—I don't want to get Mr. Hall wrong—was he relatively cooperative?
A. Yes.
Q. He didn't resist you when it came to putting on the handcuffs?
A. No.
Q. He didn't try to run?
A. No.
Q. He didn't try to grab anything?
A. No.
Q. And to the best you recall, the female that was there, she was relatively cooperative?
A. I believe so, yes.
Q. She didn't try to run?
A. No.
Q. She didn't try to grab anything?
A. No.
Q. No one's trying to flip over the air mattress?
A. Correct.
Q. No one's trying to jump out the window?
A. Correct.
Q. Do you recall Mr. Vasquez ever giving consent to search the apartment?
A. No.
Q. Do you recall the woman ever giving consent to search the apartment?
A. No.
Q. There's been some talk, a little bit of testimony from you about how there was a third person there. Remember that? Did you interact directly with that person?
A. No.
Q. I'm going to try one more photo with you.
Sir, I'm just going to put in front of you a photograph that's actually been marked with Defendant's Exhibit B. Put a copy of it here on the ELMO. There's some printing at the bottom that says front entry which is not on the marking so I'm just going to cover that.
Does that help your recollection about the day's events on July 15th or no?
A. It doesn't, no.
THE COURT: Do you want to ask him if he recognizes the photo? It's up to you. I'd like to try to move it along.
MR. WILLSON: I don't want to try to pull teeth when there's nothing.
THE COURT: Fine.
Q. Earlier the Government asked you if you have a general idea of what you're going to find when you go into these types of places and you said yes. Are we talking more about the layout of generally what you would expect or is it you expect to find X amount of drugs and Y amount of guns and that sort of thing?
A. A generic layout, for instance, the approximate size.
Q. When you were at the big briefing, let's call it, did anyone explain to you that there are actually two different cases that were going on that day?
A. They may have, but I don't recall specifically that.
Q. So you don't recall anyone talking about how Mr. Jose Vasquez's case is actually just a two defendant case and then there's this other case with a whole bunch more defendants?
A. They may have, but I don't recall specifically, no.
Q. When you went in the apartment, there's three people turns out. Was there anything else in the apartment other than the furnishings and the people?
A. Not that I can recall.
Q. You talked at one point about there being generally two entryways or exitways for an apartment. Just to clarify, when you say that, do you mean two entryways right out to the street or into a common stairwell or some other access point when we're talking about these buildings?
A. Typically there's two entries or exits, two different doorways that go out to not necessarily outside, but a common hallway or some way of exiting the building, for instance, if there was a fire or something like that.
Q. Do you have any recollection of assessing when you got to 100 Washington Street these are the two ways to get in and out or any memory about that at all?
A. Not me particularly, no.
MR. WILLSON: Your Honor, if I could just have a moment?
THE COURT: Yes.
Q. About how many of these entry team activities have you done since July 15th, any guess?
A. Maybe around 50 to 70.
Q. Any more in West Haven or they're all over the place?
A. I'm sure there was some in West Haven, but spread out.
Q. Trooper Walsh, after Mr. Vasquez is in custody, just so I'm clear, did you walk him out of the apartment?
A. I'm not sure if I did myself or somebody else did.
Q. Do you remember driving him to whatever weigh station he was going to go to on his way to court?
A. I didn't drive him anywhere.
Q. Did you remember who you left with or did you leave in your own car by yourself?
A. I'm not sure who I left with. Once he was in custody and we left that apartment, our job was done.
Q. Were you involved in seizing the car?
A. No.
MR. WILLSON: Nothing further, Your Honor.
THE COURT: Redirect, Mr. Hall.
MR. HALL: Just real quick, if I could, Your Honor, a couple of questions.
REDIRECT EXAMINATION BY MR. HALL:
Q. So as far as the execution of this warrant at six o'clock in the morning, did you have any part in deciding what time it was going to be?
A. No, sir.
MR. WILLSON: I'm sorry, I missed the question, Your Honor.
THE COURT: The question was did you have any part in deciding what time the warrant would be executed. And he said no.
MR. WILLSON: Thank you, Your Honor.
Q. And then as far as Mr. Willson asked you about whether you were briefed on how many federal cases this round-up had been divided into by the lawyers or whatever, did you care?
A. Honestly, no, sir.
MR. HALL: Thank you.
THE COURT: You can step down, sir.
Mr. Hall, you have another witness, right?
MR. HALL: Sure.
THE COURT: So why don't we take 15 minutes now and we'll be back for your next witness. We'll be in recess.
(Recess.)
THE COURT: Be seated, please. Mr. Hall.
MR. HALL: Yes, Your Honor. The Government would call Charles Burns.
It's not like I don't know these guys.
THE COURT: If you could stand and raise your right hand.
CHARLES BURNS, called as a witness by the Government, having been duly sworn by the Clerk, was examined and testified on his oath as follows:
THE CLERK: Please be seated. State your name, city and state, spell your last name.
THE WITNESS: My name is Sergeant Charles Burns with Connecticut State Police, Middletown, Connecticut.
DIRECT EXAMINATION BY MR. HALL:
Q. Good morning, Sergeant.
A. Good morning.
Q. Can you tell Judge Shea what you do for a living?
A. Connecticut State Trooper.
Q. And you're a Sergeant, right?
A. Yes, sir.
Q. So what does that mean for you?
A. I'm a supervisor.
Q. And how long have you been with the Connecticut State Police?
A. Approximately 16 years.
Q. Before that, did you have any law enforcement experience?
A. Yes, sir. One year in Milford.
Q. Milford PD?
A. Yes.
Q. In your time with the State Police, did you have—did you work on the road at all?
A. Yes.
Q. Highway trooper kind of thing.
Did there come a time when you became involved with the Statewide Narcotics Task Force?
A. Yes.
Q. When did you start with them?
A. The end of 2012.
Q. Prior to that time, did you do any narcotics work for the State Police?
A. No, I did not.
Q. So you were on the road up until 2012?
A. Yes.
Q. So you were with Statewide Narcotics from 2012 until the present?
A. No. I am no longer with Statewide Narcotics.
Q. That's over with?
A. Yes.
Q. As of July of 2015, were you with Statewide Narcotics?
A. Yes.
Q. You worked with other law enforcement agencies from time to time?
A. Yes.
Q. In Statewide. What are you doing now?
A. I am a patrol supervisor.
Q. Is that quite a bit different from when you were with Statewide?
A. Yes.
Q. And were you a supervisor when you were with Statewide?
A. I was.
Q. And although you were a supervisor, did you participate in investigations yourself?
A. Yes.
Q. And did you participate in executing search warrants and arrest warrants?
A. Yes, I did.
Q. So you've done that before in narcotics cases, before July of 2015?
A. Yes.
Q. On numerous occasions would it be fair to say?
A. Yes.
Q. And at some point before 2015, did you become associated with Trooper Walsh and others in sort of an entry team?
A. Yes, I worked out of the same office with Trooper Walsh.
Q. Did you ever serve on entry teams with him before 2015?
A. Yes, many.
Q. And if you'd just tell me, did the entry team that you served on with him generally have the same personnel over a period of time or not?
A. Yes. It would generally be the same group of people.
Q. And so who was in that group of people, to the extent you remember any of them?
A. There would be myself, another Sergeant, Detective Kraus, Detective Chapman, Detective Walsh.
Q. And then from time to time others would come and some would go, that kind of thing?
A. Yes. And then there would be—our office was the Task Force. So we had troopers and then we had people from local police departments as well.
Q. Could you—drawing your attention to July of 2015, did you and your organization receive a request to participate in a DEA operation?
A. Yes, we did.
Q. And then did you, in fact, yourself participate in that operation?
A. I did.
Q. And again, in July of 2015, did you become aware of the particulars of the operation or some particulars of the operation?
A. Yes.
Q. What was your understanding of what it was?
A. During the briefing of the operation we were told that there was a narcotics investigation that had been going on for an extended period of time. DEA had several arrest warrants and search warrants and we were going to be assisting with the execution of an arrest warrant that morning.
Q. And were you given any particulars as to who the arrest warrant was going to be for?
A. Yes. That morning we were given the name and address and photos of the person we were looking for.
Q. Is that the same morning you attempted to execute the warrant?
A. Yes.
Q. Were you given a picture of the guy?
A. Yes.
Q. And you said an address?
A. Yes.
Q. And were you given more than one address?
A. Originally we were given a different address and it was changed.
Q. So you received direction as to where to locate this person?
A. Yes.
Q. Do you know who gave you that direction?
A. Special Agent Rubinstein.
Q. And what role, if any, did Special Agent Rubinstein play with your entry team in this operation?
A. He was with our group representing the DEA.
Q. And on your entry team, you mentioned the number of names of the people who have been on entry teams with you over time, but directing your attention to July 15th and that DEA operation, do you recall who was on the entry team you were with for that day?
A. Not specifically.
Q. Can you remember anybody who was on it?
A. I remember, like I said, Detective Chapman, Detective Walsh, Special Agent Rubinstein was there, but I don't think he made the initial entry. I think he was on the outside.
Q. And as far as the initial entry goes, this is a — were you given a photograph of the house or the building at the address where you were to execute the warrant?
A. I don't recall.
Q. Did you find the building?
A. Yes.
Q. And did you meet in the small group, the entry team with Special Agent Rubinstein, prior to attempting the entry?
A. Yes.
Q. And was that right there at the house or was that someplace else?
A. We met prior and then we went to that house.
Q. And when you met prior or another time, did you guys come up with some kind of plan of who was going to do what on the entry?
A. Yes.
Q. Do you recall any particulars of that?
A. I don't remember. Normally someone would be assigned the breaching tools. I don't remember who was assigned, though.
Q. Okay. So had you — could you say roughly how many entries you executed, either arest or search warrants, you made with this team, plus or minus one or two people, roughly?
A. 150.
Q. And have you ever made entries either for search or arrest warrants into three-family wood frame houses?
A. Yes.
Q. Could you say roughly how many times?
A. A quarter, a third.
Q. So on that day, what — do you remember if there was more than one entrance to the building that was the target?
A. Yes. I believe that there were three separate entrances.
Q. And do you recall which one that you were involved with covering?
A. We had several people go in different entrances looking for an unsecured common door, and I believe it was Detective Chapman who found a side door that was unsecured into a common hallway or stairwell.
Q. And did you end up entering the building by way of that doorway?
A. Yes, sir.
Q. And who else went in there with you?
A. The majority of our group.
Q. Would that include Walsh?
A. Yes.
Q. Would that include Chapman?
A. Yes.
Q. Okay. So prior to entering the building, did you have any conversation or other interaction with any of the residents of the building?
A. No.
Q. And so tell the Judge what happened — withdrawn.
So you go to this entrance that you're going to use, right? And did you open the door or did somebody else?
A. To the apartment or the common?
Q. Into the building.
A. Into the building, I don't — by the time I got there the door was open. There was no people there. I'm assuming it was unlocked. I don't know.
Q. Where did you guys go once you got into the building?
A. We made our way to the third floor.
Q. Were you able to detect whether anybody was there present on the first floor?
A. I don't remember the first floor. I do remember on the second floor from the stairwell the — there was a hole in the door where a dead bolt would be and you could tell from the hallway that it was a vacant apartment.
Q. And so did you guys attempt to enter into that second floor?
A. No.
Q. Had you received information directing you really to the third floor to find the subject?
A. Yes.
Q. And so did you proceed to the third floor?
A. Yes, sir.
Q. And when you got to the third floor, can you describe for the Judge what it was like there? Was there a landing, was there not a landing, that kind of thing, if you can recall?
A. I don't recall if there was a landing or not.
Q. So when you got to the top — when you got to the unit entry door on the third floor, that happened, right? You got to the unit entry door on the third floor? Yes? You have to answer out loud.
A. Yes.
Q. What did you guys do?
A. The people who were in the front knocked on the door.
Q. Well, were you in the front?
A. No.
Q. Did you guys look around the hallway to see if there were any indications of residents by anybody?
A. Can you repeat the question.
Q. Did you guys look around in the hallway up there on the third floor to see if there were any indications of residents by any particular people?
A. No, I don't recall.
Q. You didn't do that?
A. I did not do that.
Q. Do you recall if anybody else did?
A. I do not recall.
Q. And so you started to say that someone knocked on the door. Were you at the front of the line?
A. No, I was not.
Q. That's called a stack, right?
A. Correct.
Q. So you were not at the front?
A. No.
Q. Did you have a ram yourself?
A. No.
Q. Did you have the other thing, pry bar thing?
A. No. I was probably the fourth or fifth person back.
Q. Were you the guy who decided when to force the door if that became necessary?
A. No.
Q. And so you're at the back of the line. Can you tell the Judge what happened as you're standing at the door. You started to say somebody knocked.
A. Right. We knocked. We announced.
Q. Can you say to the Judge — do you know who knocked?
A. I don't recall who was in the front.
Q. It was not you?
A. It was not me.
Q. Somebody knocked?
A. Yes.
Q. Did you hear it?
A. Yes.
Q. Could you characterize the sound? In other words, using — do you know if the person who knocked, could you tell by listening to it whether the knocking was done with the flashlight or hand or open fist or whatever?
A. It would be a loud knock, like a banging.
Q. What about this — you said you announced. What did you hear?
A. Police with a warrant.
Q. Is that typical?
A. Yes.
Q. Do you remember that?
A. Yes.
Q. And was that announcement made — what kind of voice was that announcement made?
A. Loud.
Q. And prior to the knock and announcement, do you recall seeing or hearing anything from the hallway — from the apartment as you were standing in the hallway?
A. No, I do not.
Q. And after the knock and announce, do you recall seeing or hearing anything coming from the apartment?
A. No, I do not.
Q. What happened after the knock and announce?
A. Ultimately the door was forced open.
Q. By you guys?
A. Yes.
Q. Do you know if they used a ram or pry bar?
A. I would — I want to say the ram.
Q. Do you remember that or do you just —
A. The ram is usually the first attempted tool.
Q. And so — and did the door yield?
A. Yes.
Q. Was anybody at the door?
A. No.
Q. Was there any discussion that you recall in the stack after the announcement was made about when to force the door?
A. No.
Q. Do you recall how long it was between the knock and announce and when the door was forced?
A. Less than a minute.
Q. And, again, you didn't hear anything?
A. I did not.
Q. And so once the door was forced, what did you do?
A. Once the door was open everybody entered into the apartment.
Q. And let me just stop you there. When you entered the apartment — well, that morning, did you have a weapon?
A. Yes.
Q. And as you entered the apartment, where was the weapon?
A. I don't recall if my weapon was drawn or not. It would depend upon how far back I am in the stack whether my gun would be out or not.
Q. Can you explain that to the Judge, please. Were you ever the front guy?
A. Yes.
Q. If you're the front guy, where's your gun?
A. Generally the people in the front would have their gun out and the people in the back would be — the people in the front would be ultimately like the cover people and then the people in the back would be the arrest people. So you would be — the people in the back would be using their hands to facilitate an arrest. So at that point you're not using your gun so I wouldn't have my gun out.
Q. And do you have a recollection of ever seeing the people in front of you enter the apartment?
A. Yes.
Q. And so could you see where they went?
A. They peeled in different directions. I know that when I went in I peeled to the right.
Q. And why did you peel to the right?
A. The people in front of me either went straight or the left.
Q. And so when you went to the right, where did you end up?
A. There was a doorway that led to a bedroom.
Q. Was the doorway open or closed when you got to it?
A. Closed.
Q. And did you enter that room?
A. Yes.
Q. When you entered that room, did you have your gun drawn?
A. At that point I might have. I don't recall.
Q. Why do you say you might have?
A. At that point now I'm in the front of a new line, for lack of a better term, and at that point I would have drawn my gun.
Q. Do you know what kind of gun you had?
A. I have a .45 caliber Sig Sauer pistol.
Q. So what did you do about that closed door?
A. We opened the door.
Q. We?
A. We. I mean we as the group. Yeah, the door.
Q. I want to just sort of get — do you have a recollection of opening the door or did someone else open the door?
A. I don't recall. I remember going through the door.
Q. After you went through the door, what did you find?
A. There was a bedroom with two people in the bedroom.
Q. And can you characterize them by gender?
A. A male and a female.
Q. And where were they when you came into the room?
A. The male was half in bed and half out of bed. And the female was still in bed.
Q. And ultimately was the male identified as your target?
A. Ultimately that was the main target, yes.
Q. And once you were in the room and there's the male and the female, were you — at that point were you alone or was somebody with you?
A. No, there was several people with us.
Q. Do you remember who any of them were?
A. I remember Detective Walsh and at least one other person.
Q. Did you say anything to the people in the bed?
A. When I entered the room I would have said police.
Q. And you would have said that. Do you recall saying anything specific to them?
A. No.
Q. Do you recall you or someone else giving them direction?
A. The direction would have just been as far as handcuffing direction.
Q. Right. You come into this room and there's this man and woman. And when you say police, you didn't whisper it, did you?
A. No.
MR. WILLSON: Objection, Your Honor. I'm not sure that the evidence's clear that he said police. He said he would have said police. I think it's an important distinction.
THE COURT: I heard the testimony, too, and I think your characterization is accurate.
MR. HALL: I heard it as well and I think he's right.
Q. Did someone say something to these people in that room that you heard?
A. Yes.
Q. And do you recall what they said?
A. When I entered the room I yelled police.
Q. And did you hear anyone, yourself or anyone else, give these people any direction?
A. The direction would have been to show us your hands.
Q. But do you recall hearing anybody saying police, show me your hands or something like that? Just trying to get for the Judge what you recall, that's all. If you don't, it's okay.
A. I would have said police, show me your hands.
Q. And to your recollection, were both of the subjects compliant?
A. Yes.
Q. Did it ultimately happen that both of the subjects got handcuffed?
A. Yes.
Q. And you've indicated that the male ended up being the target that you were seeking in the first place, right?
A. Yes.
Q. So was he placed under arrest?
A. Once he was identified, yes.
Q. And do you remember how he was identified?
A. We had a photo and Special Agent Rubinstein made a phone call. He positively identified him.
Q. When you entered the apartment — I mean when you entered that room, the bedroom, I guess, because there's a bed in there, when you entered that room, did Rubinstein come in with you?
A. Not at that time.
Q. When did he get there?
A. He would have — I don't remember when he got there.
Q. Do you have a recollection of it at some point he was in the apartment with you guys?
A. Yes.
Q. And that he was not there when you first went into the bedroom?
A. Not when we initially went through the door.
Q. Okay. And did you have direct conversation with the male subject?
A. Yes.
Q. And what was the nature of that conversation?
A. Once the male was secured and the female was secured and then there was a third person in the apartment, that person was secured, and the team had completed their sweep of the apartment to make sure there was no other people there, I gave all three of them — I read them their Miranda rights.
Q. Did they sign anything to indicate they had been read their rights?
A. No.
Q. And do you recall anyone helping Mr. Vasquez, the subject, helping him prepare to be transported?
A. After, yes. So he — yes, because at the time he was not dressed.
Q. What was he dressed in?
A. I believe underwear.
Q. And so what happened then?
A. I recall being in the common room, living room. There was not much furniture. Call it the living room.
Q. Would that be the first room you came into?
A. The first room that we came in, had like the middle room.
Q. Was that bedroom directly off that first room?
A. Yes. And I had read their rights in English. We had a Spanish officer with us and I gave him the Miranda card. He read the rights in Spanish. And then Detective Walsh, once we identified everybody, was trying to get Mr. Vasquez some clothes.
Q. And did Walsh end up getting Mr. Vasquez some clothes?
A. Yes, he did.
Q. And what was the clothes that he got him?
A. Originally it was a pair of pants.
Q. And did you see Walsh do anything with the pants before he brought them to Mr. Vasquez? Did you see it?
A. Yes.
Q. And what did you see?
A. I saw — I was in the — Walsh would have been in the bedroom. I would have been in the living room. And as he was walking towards me —
Q. Could you see him?
A. I could see him. And he had the pants and he was shaking them upside down.
Q. And what happened?
A. Items fell out of the pants.
Q. Did you see the items?
A. Yes.
Q. Did you see them fall?
A. Yes.
Q. Where did they fall to?
A. To the ground.
Q. Could you see what they were?
A. Yes. It was money and narcotics.
Q. Now, as far as the narcotics goes, was there anything else? Was there anything else?
A. In the pants?
Q. That fell out of the pants?
A. Not that I recall.
Q. And so once it had been determined that there were narcotics there, what did you do?
A. I remember having a conversation with the group and then I ended up leaving the apartment.
Q. Before you left the apartment, do you notice where Walsh got the pants from?
A. The bedroom.
Q. Do you know where in the bedroom?
A. No, I don't.
Q. After the narcotics had been found, did you have any occasion to go into the bedroom?
A. Yes.
Q. Did you see any other narcotics?
A. Yes.
Q. Where?
A. In the hamper.
Q. There is a clothes hamper?
A. A clothing hamper.
Q. Where was the clothing hamper located, if you recall?
A. If you entered the bedroom, to your immediate left on the ground.
Q. And was that so — so the hamper's to your immediate left. Is that sort of in the middle of the room or adjacent to anything in particular?
A. It was against the wall, but to the left of the doorway.
Q. So as you look at the hamper, what could you see?
A. There was additional drugs.
Q. How could you say that?
A. There was a plastic — I don't even know how you describe it — the only thing I can think of it's the type of thing that when I was a kid I used to put like pencils in. Like a plastic foot-long item with a zipper on the top.
Q. And when you saw this thing in the hamper, was the zipper opened or closed?
A. It was open.
Q. And could you see anything by just looking at the hamper? Could you see what was inside of that thing?
A. Yes, it was narcotics in it.
Q. What did the narcotics look like generally?
A. I believe it was heroin.
Q. Yeah. Have you seen heroin packaged for street sale?
A. Yes.
Q. Did it look like that?
A. Yes.
Q. So it was — so it was in glassine bags?
A. Yes.
Q. In the hamper?
A. Yes.
Q. And what else was in the hamper?
A. I don't recall anything else in the hamper. Clothes.
Q. Could you tell the Judge, if you can, what the condition of the clothes was, that is, were they just thrown in the hamper or were they neatly folded?
A. I don't recall that.
Q. So with respect to the drugs on the floor, did you touch those drugs? Did you take any action with respect to those drugs?
A. No.
Q. And with respect to the drugs that you described from the hamper, did you take any action with respect to those?
A. No.
MR. HALL: I'm sorry, Your Honor.
THE COURT: That's all right.
Q. I'm going to show you Exhibit 4 and ask you if you could tell the Judge what that is?
A. I believe that's the items that were — that fell out of his pant pockets.
Q. And then I want to show you what's been marked for identification as Exhibit 6. Do you recognize that?
A. That would have been the item in the zipper bag.
Q. Is that thing that you described like a pencil bag type thing?
A. Yes.
Q. So that would have been in the hamper?
A. Yes.
MR. HALL: I offer that.
MR. WILLSON: Your Honor, can I ask a question, just a question about the record?
THE COURT: Yes.
BY MR. WILLSON:
Q. Sir, did you testify that the bag when you saw it in the hamper it was clear, like a transparent bag? I just can't recall the testimony right now.
A. No.
Q. So when you're in the living area or this common area and you're looking into the bedroom, is that when you see — allegedly see the bag?
MR. HALL: This is kind of cross-examination.
THE COURT: He can ask a few questions on voir dire. Stick with the bag.
Q. Is that when you see the bag, when you're in the common area?
A. No. I was called into the room by Special Agent Rubinstein who pointed the bag out to me.
Q. Is this the condition that you saw the bag in?
A. I believe so, yeah.
Q. It's hard to tell, honestly, but the bag doesn't look like it's in the hamper. You didn't see this photo be taken or the bag when the photo was taken, am I right on that?
THE COURT: I didn't even understand that question.
MR. WILLSON: I don't know that I did either.
Q. When I look at the picture here, you see there's the bag, there's the money, right?
A. Yes.
Q. And when you look around the frame of the bag, what do you see?
A. I can't tell from here.
If you're asking me if I saw the picture get taken, I don't recall seeing the picture being taken.
Q. So you don't remember this picture being taken?
A. No.
Q. But you say that that's the bag that you saw?
A. I believe so, yes.
THE COURT: One more question, Mr. Willson. We're on voir dire here.
MR. WILLSON: That's fine.
I assume that the bag and the other pouch that we've seen has not been brought today?
THE COURT: I have no idea.
MR. WILLSON: That may be something we want to explore in the future. Could I have a second with Mr. Vasquez?
No objection, Your Honor.
THE COURT: Exhibit 6 will be full.
(Whereupon, Government's Exhibit Number 6 was marked in full.)
MR. HALL: Thank you, Your Honor.
BY MR. HALL:
Q. I'm going to show you Exhibit 7 which I think is a full exhibit. Do you recognize that?
A. No, I do not.
Q. Now, to your recollection, after Mr. Vasquez had been — well, after he had been Mirandized, did he make any statements while you guys were in the apartment?
A. I don't recall any statements.
Q. Did he make any — you don't recall any that he would have made to you or anyone else?
A. I don't recall him making any statements to me.
Q. And you mentioned as far as names of people who had come into the apartment with you, Walsh and Chapman at least, right?
A. Yes.
Q. So at some point did Chapman leave the apartment before you did?
A. He and I both left the apartment at the same time.
Q. Why did you guys leave?
A. I went — I was under the impression that we were going to get consent paperwork signed to search the apartment.
Q. What gave you that impression?
A. I don't recall having a conversation with Mr. Vasquez, but to go back to my vehicle to get paperwork, I would have only have done that if I was under the impression that we would be voluntarily searching the apartment.
Q. And you're clear that that's why you left?
A. That's why I left.
Q. Why did Chapman leave, do you know?
A. He left — he also has a narcotics canine. So he would have gone to get the canine.
Q. To participate in a consent search?
A. Yes.
Q. So then did you return to the apartment?
A. Yes.
Q. And did Chapman return to the apartment?
A. Yes.
Q. And did he have the dog?
A. Yes.
Q. Were you familiar with his dog?
A. Yes.
Q. It's a narcotics dog?
A. Yes.
Q. Had you seen that dog alert before?
A. Yes.
Q. To your recollection, did Mr. Vasquez or anybody at the apartment ultimately consent to a search of the apartment?
A. No. When I came back in —
Q. No, right. And then what happened when you came back in.?
A. No, he did not. When I came back in the mood had changed in the apartment and I was told by my team that we were not going to have a consent signed.
Q. So you left the apartment with the impression that there would be a consent search?
A. Yes.
Q. When you returned you had the impression that there would not?
A. Yes. When I came back that's what I was told that, no, he's not giving consent.
Q. So aside from what we talked about with the pants and what we talked about with the laundry basket and any security sweep that you and your men did upon entering the apartment, was a search conducted of the apartment?
A. No, it was not.
Q. Was the dog run through the apartment to search it?
A. No.
Q. Did you see the dog alert in the apartment?
A. I did not.
Q. And before you guys — how long were you guys there?
A. Half an hour maybe.
Q. Before you guys left, was the female released from the handcuffs?
A. Yes.
Q. Was she taken into custody after that at all?
A. No.
Q. And could you describe her demeanor upon your entry?
A. I don't recall her demeanor one way or the other.
Q. So she was released from the handcuffs. The third party, the male — there was a third party, right?
A. Yes.
Q. He was ultimately identified?
A. Yes.
Q. Did you have a warrant for him?
A. No.
Q. Was he unhandcuffed?
A. Yes, he was.
Q. Did you guys transport him anywhere?
A. No.
Q. Did you?
A. No.
Q. So when you left, is it fair to say that the female and that third party guy stayed?
A. Yes.
Q. And did you seize any evidence?
A. No. Special Agent Rubinstein seized evidence.
Q. And so there was one prisoner, right?
A. We had one prisoner, yes.
Q. Who helped him out of the house? Who helped him out of the amount, if you recall?
A. I do not recall.
Q. And did you help transport him after he was removed from the house?
A. I don't remember how he was transported.
Q. You might have and you might not have?
A. I came in a cargo van that could fit 15 people. I don't recall if he came with us in the van — we also had a couple cars — or if he left in a vehicle.
Q. Did you say there were 15 people in the van?
A. No, that's the size of the van.
Q. So after you guys cleared — left the premises, what did you do?
A. Once we left we ended up going to — back to the briefing location.
Q. Was there any further investigative activity by you and the other state troopers?
A. The only other thing I recall is I believe the vehicle was seized.
Q. From where?
A. From the house.
Q. Do you recall why that was seized?
A. That was part of the DEA instructions.
MR. HALL: Nothing further, Your Honor.
THE COURT: Okay. Cross-examination.
BY MR. WILLSON:
Q. Good afternoon.
A. Good afternoon, sir.
Q. Jumping to the middle. So you're in the common area. Mr. Vasquez is in — excuse me — Trooper Walsh is in the bedroom and he grabs a pair of jeans, shakes them, and out falls the money and the pouch?
A. Yes.
Q. So earlier you said money and narcotics. When you were standing in the common area or the living room, whatever it is, you didn't actually see drugs fall. You saw the pouch fall and then a subsequent search led to finding the drugs in the pouch?
A. No.
Q. You saw just drugs everywhere?
A. Because he was walking it almost made it like a line, there was glassine bags.
Q. And he was the one with the jeans, right?
A. Yes.
Q. So if he testified about what he saw, he was the one that had a better view of what was going on?
MR. HALL: I object to the form of that questio.
Q. Did he have a better view of the jeans?
MR. HALL: I object to the form of that question also.
THE COURT: If he knows, he can answer. Wait. I've overruled the objection. If the witness knows the answer to the question did he have a better view, he can answer that question.
Q. Compared to where you were standing, did Trooper Walsh have a better view of the jeans and whatever fell out of it?
A. He was holding the jeans, so, yes.
Q. Is it fair to say that a certain percentage of your recollection of July 15th is based on your training and your practices and what you expect would have happened as opposed to specific memories, is that fair to say?
A. I'm trying to testify based on my memory.
Q. Sir, you've used would have and would have done this in a decent amount of your testimony. Just so the record is clear, when you're doing that, would you agree that that's an indication that you're recalling what you would normally do in those situations?
A. Yes.
Q. For example, if you were the person in the back, which is what you recall being as you're about to enter the apartment, you would not have been the person holding the ram, right?
A. Correct.
Q. And you wouldn't be the person holding the crowbar?
A. Correct.
Q. And your recollection is that there were about four to five people on that stairway waiting to go into the apartment?
A. No, there was more than that. I think I said I was the fourth or fifth person back, but there were people behind me.
Q. I misunderstood then. What's your memory as to how many there were?
A. I don't remember, but there were people in front of me and there were people behind me.
Q. Maybe ten?
A. Eight to ten.
Q. Eight to ten. And meanwhile, there's at least a couple of people stationed at other locations in case someone tries to go out another exit, is that right?
A. Yes.
Q. And Agent Rubinstein was probably one of the people at one of the other locations, is that your memory?
A. Yes.
Q. Prior to the briefing that led to the entry, had you had any other contact with anybody about this case involving Mr. Vasquez?
A. Yes.
Q. So before the morning of July 15th, you had had contact with somebody about the case against Jose Vasquez?
A. Yes.
Q. Who was that?
A. Special Agent Cogan.
Q. Who is Special Agent Cogan? What's his relationship to you?
A. He's just an agent.
Q. Were you the contact person for the entry team getting involved or how did you have contact? Let me stop myself.
Were you the contact person for the entry team getting involved that morning?
A. Yes.
Q. So there's not another trooper or detective or what have you that was the contact person?
A. No. I received — it was either phone call.
Q. Is that the nature of the contact you had with Agent Cogan?
A. Yes.
Q. Do you remember when in relationship to July 15th you got that call from Agent Cogan?
A. It was probably a month prior to that saying that they were planning on needing our assistance at some point in the future. Didn't have a specific date at that time.
Q. Did he have an address?
A. No. At that point I didn't even have any targets names or anything. It was just we're going to be doing a large roundup and we're going to be looking for assistance.
Q. Between that contact a month prior on July 15th, did you have additional contact with Agent Cogan or another agent about being needed the morning of July 15th?
A. Just as far as logistics of where to go and date and time.
Q. There was a canine there, right?
A. Yes.
Q. Have you ever been a canine officer anywhere?
A. No.
Q. With canine use, is there any reporting requirements for state police about what did the canine do on a particular day to keep track of the dog's activities?
A. Required reporting? It depends upon what they do.
Q. For example, because of the liability risks in having a canine, is there any additional reporting requirements other than just we were at a spot, we did a search, we did the usual requirements? Are there anything specific to a canine?
A. Narcotics canine?
Q. Yes.
A. No, only if they're used in a search.
Q. And based on the activity from July 15th, would you expect there would have been a canine report?
A. No.
Q. Were you involved in writing the report?
A. No.
Q. Did you give information that was used in writing the report?
A. Can you repeat that one more time?
Q. Did you give information that was used in writing the report?
A. I don't think so.
Q. Okay. Do you remember taking any notes in connection with what happened at the arrest?
A. No.
Q. Do you remember sending any text messages or other communications to anybody about what happened at the arrest?
A. No.
Q. Did you ever see a report from the arrest?
A. Yes.
Q. When did you see it?
A. I received that from Mr. Hall.
Q. And that was in connection with getting ready for today?
A. Yes, sir.
Q. Back closer to when the events happened and the report probably was created, did you have a chance to review it?
A. No, I never saw it.
Q. The narcotics that you say you were found in the laundry basket, do you recall that?
A. Yes.
Q. Can you describe the laundry basket for us?
A. A plastic two foot by two foot square open top with holes on the side for ventilation style laundry basket.
Q. I don't know if you're someone who does their own laundry, but is it the type of basket where you would bring it to the washing machine and carry it or would you pull stuff out of it and then move it to a washing machine?
A. It's portable.
Q. Were you the person that first discovered or do you claim to be the person that first discovered the narcotics in the laundry basket?
A. No, no.
Q. Who is that?
A. Special Agent Rubinstein.
Q. Did he call you over or somehow draw your attention to it?
A. Yes.
Q. So when he — correct me if I'm wrong, but did he point out the narcotics and you looked and said, oh, yeah, those are narcotics, is that how it all went?
A. Yes, something along those lines.
Q. You didn't independently find them on your own?
A. No, no.
Q. You indicated a few of the people you recalled being in line with you to go into the apartment that day. Can you just give us those names again?
A. It was Walsh — I'm trying to remember the people that were there. So Walsh, Chapman, Kraus, Gonzay (ph).
Q. Anybody else?
A. Not off memory.
Q. Sir, I want to put on the ELMO here a photo that's previously been marked as Defendant's Exhibit A. Do you recognize that building?
A. Yes.
Q. How do you recognize it?
A. That's the house that we went into.
Q. The house where eventually you found Mr. Vasquez inside?
A. Yes.
Q. And do you think that photo seems to accurately capture your memory of the building on the day of July 15th?
A. Yes.
MR. WILLSON: Your Honor, I'd offer this into evidence.
MR. HALL: No objection, Your Honor.
THE COURT: Defendant's A will be full.
(Whereupon, Defendant's Exhibit A was marked in full.)
Q. Sticking with the photo for a second. You see there's some side stairs where I'm pointing to?
A. Yes.
Q. Is that — do you recall whether that's the entryway that you went in to get to the common stairway?
A. Yes.
MR. WILLSON: Your Honor, should I pass it to your courtroom deputy for the record?
THE COURT: Yes.
Q. Sir, just again, if you recall, putting in front of you a photo that's been marked as Defendant's Exhibit B. Do you recognize that at all?
A. Yes. The doorway on the right would be the stairs coming into the apartment, and then straight ahead the door that's open with the window would be the bedroom.
Q. When you say the door with the entry into the apartment, is that the door that everyone would have come through when they broke in?
A. Yes.
Q. And I can't recall, help me. When you came in did you peel right, peel left, peel center? Which way did you go?
A. I went to the right.
Q. So you turned into that room that you just identified as the bedroom?
A. Yes.
THE COURT: That doorway you said to the right, there are two doors on the right. I assume you mean the one that is shown as being open in the picture.
THE WITNESS: Yes, the open doorway.
THE COURT: Thank you. Go ahead.
Q. Sir, do you recall opening that door in the middle at any point?
A. No, I don't recall that door at all.
MR. HALL: I'm sorry to interrupt. That could be a full exhibit?
THE COURT: Do you want to offer it.
MR. WILLSON: Yes, Your Honor.
THE COURT: No objection?
MR. HALL: No.
THE COURT: Defendant's B will be full.
(Whereupon, Defendant's B was marked in full.)
Q. You've talked about how you were in sort of a living area but you could see into the bedroom. Do you remember that testimony?
A. Yes.
Q. So using this picture, is it as if you're the photographer and that's about where your position was and you could see into the bedroom from there?
A. Yes.
MR. WILLSON: Again, I'll just pass that up, Your Honor.
THE COURT: Sure.
Q. You had a conversation with a group in the living area and then you left the apartment earlier in your testimony. Is that when you left the apartment to go out to your car but then came back?
A. Yes.
Q. Do you recall anything about that conversation with the group?
A. No.
Q. You don't remember someone saying to you hey, go get the consent forms, he's going to consent or anything like that?
A. No.
Q. And at that point did things seem fairly stable and secure?
A. Yes.
Q. You wouldn't have left the apartment if things were not secured, correct?
A. Correct.
Q. And from your memory of Mr. Vasquez, no one there really put up any resistance or was difficult in any way?
A. No.
Q. Do you remember who you had the conversation with?
A. No.
Q. Do you speak Spanish, sir?
A. No.
Q. So when you went in the apartment there was the three people, a small amount of furnishings let's call it. Anything else memorable about the apartment?
A. No. Just the lack of furniture.
MR. WILLSON: Your Honor, if I could just have a moment?
THE COURT: Yes.
Q. You said initially you were given a different address to go do the search, do you remember saying that?
A. Yes.
Q. Do you remember anything about why it switched or what the other address was?
A. I don't remember the other address. It was — it was changed before we arrived that morning for the briefing.
THE COURT: I'm sorry, your voice dropped off. You said it was changed before?
A. Before we got there we were given an address and then that morning it was a different address.
Q. But you don't remember what the first address was?
A. No, I do not.
Q. Just in general, when you're doing one of these entries, someone uses the ram, right?
A. Yes.
Q. And then do they drop the ram and take out their gun or how does that work?
A. Generally, the person with the ram is not the first person through the door.
Q. So the person rams the door, tries to get out of the way, let the others through?
A. Yes.
Q. Do you remember anything specifically from this morning, July 15th, about how that worked?
A. No.
Q. And the person who rams the door and then gets out of the way, what do they do with the ram normally?
A. It generally stays right there.
Q. They stack it neatly or they drop it and go in?
A. Generally probably dropped.
Q. Do you recall anything specific that day?
A. No.
Q. Given — when you're on a stairwell, in your experience as being the ram guy from time to time, would you then bring the ram with you into the apartment, drop it somewhere in the apartment or would you drop it on the stairs, it tumbles, or how would you handle that?
A. It would probably end up right inside the apartment.
Q. Are you trained to, if you're following the ram guy, to step over, make sure you don't trip, get hurt or how is that handled?
A. I'm not understanding the question.
Q. Well, you're the ram person. Are you then the last person to go in and everyone goes in front of you?
A. I can talk in generalities. It's a fluid situation. So every situation is going to be a little bit different. But generally the ram guy is not the first person through.
Q. Are they usually the last person through?
A. Depends.
Q. When you drop the ram, make a lot of noise?
A. It could. I mean sometimes if you drop it it would, but we have different people that do the rams. So some people would place it down, some people might drop it down. It depends.
Q. And you don't remember who was the ram guy that day?
A. I have no idea.
Q. How much does the ram weigh?
A. 30 pounds.
MR. WILLSON: I'm finished at this time.
MR. HALL: Just one.
BY MR. HALL:
Q. Sergeant, were there any Connecticut State Police reports made of this operation at all?
A. No.
MR. HALL: Thank you. Nothing further.
THE COURT: You can step down, sir. Thank you.
We will recess for lunch early and come back in 45 minutes. Before he do that, how many witnesses do you expect to call?
MR. HALL: One.
THE COURT: And that's going to be Special Agent Rubinstein?
MR. HALL: Yes, sir.
THE COURT: Have you had a chance to inquire with Ms. Vasquez how she's doing, that kind of thing?
MR. WILLSON: Not since we first addressed it this morning, Your Honor.
THE COURT: Why don't you report back after lunch on that.
And then lastly, we had discussed on the phone the possibility of moving the trial. And I think we had had some discussion that October 12th might be an acceptable date. I think Mr. Willson wanted a little time to talk to his client about that. Does that date remain a good date for the parties?
MR. HALL: My dance card is open on October 12th.
MR. WILLSON: Likewise, Your Honor.
THE COURT: And so, Mr. Willson, you've had a chance to talk to your client about that?
MR. WILLSON: I have, Your Honor. We've discussed it. He is agreeable. He's aware he has a right to a speedy trial, but we'll waive that in this instance. He's out on bond with a number of conditions and all that is going well as far as we know. So in light of that, we're fine to moving it to October.
THE COURT: In light of that, I'm going to reschedule jury selection for October 12th, with evidence to start immediately thereafter. I find that the time between today and October 12th, 2016, is excluded under the Speedy Trial Act because the ends of justice served by continuing the trial to that date outweigh the best interest of the public and the defendant in the speedy trial. In particular, given the fact that the Defendant is not being detained prior to trial and, also, that the parties will need additional time potentially to alter their strategies in light of my ruling on the motion we're addressing today, the suppression motion. I find that while this case may not be unusual or complex, failing to exclude the time through October 12th would deny the Defendant and the Government the reasonable time necessary for effective preparation taking into account the exercise of due diligence.
All right. And then we'll — before we start this afternoon, we'll talk about Mrs. Vasquez's status and, if necessary, we'll need to pick another date.
Now, so you're aware, that date is going to have to be before the end of March. So you know, we're going to finish this hearing if it's not finished today.
So we'll be in recess.
MR. WILLSON: Your Honor, one last question. Are we going to have our argument today on Weaver and Pelletier and those cases, or are we going to reserve that after finishing of the hearing?
THE COURT: If we don't finish the hearing today, we'll do that at the end.
We'll be in recess.
(Recess.)
(Recess.)
THE COURT: Please be seated. By my clock, I'm a little late. So I apologize.
Mr. Willson, do you have a report with regard to Mrs. Vasquez?
MR. WILLSON: Yes. It would not be suitable for her to testify. She has not been able to get the medication that she needs.
THE COURT: Let's pick a second day now. Do you have an estimate of how long you expect to be with her, Mr. Willson?
MR. WILLSON: Your Honor, I think it would be comparable to probably the first witness we had today. It will be a little longer.
THE COURT: So hour, hour and a half total?
MR. WILLSON: I don't want to pigeon hole the Government into a time slot. I think I'll take about an hour.
THE COURT: Let's call it two to be safe. And we'll leave some time for argument. I don't think we don't need much for that, half hour, 25 minutes total for argument if we even need that much.
How does the — bear with me one second. How does the morning of the 22nd which is Tuesday?
MR. WILLSON: Your Honor, I'll tell you it's clear on my calendar. I don't want to misrepresent anything there. In light of her condition, just giving everything a chance to resolve with that. I can tell you that I have a spare amount availability of the 29th, 30th and 31st.
THE COURT: So you're saying you don't think she'll be able to proceed on the 22nd?
MR. WILLSON: I don't know. Given that's just five days away, I wouldn't want to ask again to move things.
THE COURT: And you're not available on the 28th?
MR. WILLSON: The 28th I could do late in the day. I have a conference with Judge Underhill at 11:00 that's going to go to noon.
THE COURT: How about the 29th? You said the 29th looked good for you, Mr. Willson?
MR. HALL: 29th would be good for me.
THE COURT: Let's say the 29th and we'll start at nine.
Very well. Anything else to take up before our next witness?
MR. HALL: I don't think so, Your Honor.
MR. WILLSON: Your Honor, anticipating that Agent Rubinstein is going to be the next witness, I'm going to, for the purposes of the record, restate my earlier objection. Agent Rubinstein has been in the courtroom for the testimony of the first two witnesses. So just to maintain my objection at this time noting that for the record.
THE COURT: Are you ready?
MR. HALL: Yes, Your Honor. The United States would call John Rubinstein.
THE COURT: Please raise your right hand, sir.
JOHN RUBINSTEIN, called as a witness by the Government, having been duly sworn by the Clerk, was examined and testified on his oath as follows:
THE CLERK: Please be seated.
State your name, city and state, spell your last name.
THE WITNESS: John Rubinstein, New Haven, Connecticut. My last name is RUBINSTEIN.
BY MR. HALL:
Q. Good afternoon, sir. Can you tell the Court how you're employed?
A. I am a Supervisory Special Agent with the Drug Enforcement Administration.
Q. And how long have you been with the DEA?
A. This April it will be 26 years.
Q. How long have you been with the DEA in Connecticut?
A. About 16 years, approximately.
Q. And now you're a Supervisory Special Agent?
A. Yes.
Q. What does that mean?
A. I am a Manager/Supervisor over an enforcement group in New Haven, Connecticut.
Q. Do you still do cases yourself? Do you investigate?
A. I still investigate. I'm not a lead on cases, but I still do investigations.
Q. And you're not a lead because supervisors can't be the lead?
A. They shouldn't be the lead.
Q. Too much to do?
A. There's a lot of other duties besides investigating.
Q. Turning your attention to July of 2015, did you become aware of an investigation being conducted by your agency into heroin distribution, suspected heroin distribution by Jose Vasquez and Wilson Vasquez?
A. Yes.
Q. And were you aware of that investigation as it was going on before July?
A. I was aware, yes.
Q. Did you participate in it?
A. Not really.
Q. Are you based in New Haven?
A. I am in New Haven.
Q. And that investigation was based in New Haven also?
A. Yes.
Q. And so you would, on a day-to-day basis, would have occasion to be around the other agents and Task Force officers who were doing that investigation, right?
A. That's correct.
Q. When you said I didn't — sort of didn't have anything to do with it, is that kind of what you meant?
A. Yes, I'm in a difference enforcement group. There are difference forcement groups in New Haven, and that operation, this investigation, was conducted by another enforcement group.
Q. Right. But you guys are around each other all the time?
A. Yes.
Q. Did you know there was a wiretap?
A. Yes, I did.
Q. Did you sit on the wire at all?
A. I did not. I might have been minimized one or two times. I might have been, but I'm not sure a hundred percent on that.
Q. And that would be a set of instructions delivered by the prosecutor, probably me, about how to handle certain aspects of the wiretap, right?
A. That's correct.
Q. But you didn't have any hands on involvement, right?
A. No.
Q. Did you make any investigative decisions in that investigation?
A. No.
Q. Were you aware generally of the scope of that investigation?
A. Yes.
Q. Did you participate in a briefing prior to what you guys would call the take-down in that investigation?
A. Yes, I did.
Q. And were you designated as one of the team leaders in that investigation?
A. Yes.
Q. And what was the assignment of your team?
A. To arrest Jose Vasquez.
Q. Were you to do anything besides arrest Mr. Vasque?
A. That day? Or I mean — I had been given information about possibility of locations for him and I did some pre-operational surveillance myself, and did some looking into the target and did my background investigation. I looked over the information that was given to me by the case agents about the target and a photo and locations. I did my own, you know, one or two days of preparation for that.
Q. Again, all in preparation for the arrest that you were going to be making?
A. On the 15th.
Q. And your team — who was on your team?
A. I was the only DEA agent and it was a statewide narcotics team that was — I was accompanying them, they were accompanying me. I don't know how you look at it.
Q. That statewide narcotics team, had you worked with that team before?
A. Yes.
Q. Had you worked, other than working with those guys as a team, had you worked with some of those individuals before?
A. Yes, numerous times.
Q. So the DEA in New Haven, is it fair to say, does projects with the Statewide Narcotics Task Force from time to time?
A. Yes.
Q. And that's the connection in which you knew these people?
A. Yes.
Q. So directing your attention to the morning of the 15th. What did you do first thing in the morning?
A. Early that morning, very early, like 3:00 in the morning, I went by a location that was given to me and observed Mr. Vasquez's vehicle parked next to the residence that we had — that had been given to me.
Q. Was that the 100 Washington Street address?
A. Yes.
Q. So was the car there?
A. Yes.
Q. And in that information about whose car it was or whatever, that was given to you also, right?
A. Yes.
Q. And so what else did you do that morning?
A. I went to a briefing location where I was part of a large general briefing given by the case agents to everyone, a little tower view of the case.
Q. Can you say roughly how many agents and officers were involved in that operation?
A. I'd say over a hundred.
Q. Then you went where?
A. Then inside this facility we had divided up areas for each team, and I was a member of a team number, I'm not sure what the number was, but my team was assigned the arrest of Mr. Vasquez. So the people assigned to that came over to that area and we discussed what I had seen earlier in the day, his vehicle was there. We discussed the location, what it looked like, the 100 Washington Avenue. And we discussed actually getting out of that location to a secondary location to brief briefly and exit this thing approximately 6:00 a.m.
Q. So by the time 6:00 a.m. rolled around, did you have a final location that you guys were being directed to go to for the arrest of Mr. Vasquez?
A. Yes.
Q. Do you remember what that location was?
A. It was 100-102 Washington Avenue.
Q. And what is 100-102 Washington Avenue?
A. It's a house, a three-story house
Q. So you guys went there. Do you know how many people were on your team?
A. About twelve people.
Q. And as far as deciding who goes to what door and that kind of stuff, do you do that or who did that? Who's responsible?
A. Me and Sergeant Burns talked about it was all their personnel and I was the only DEA person there, and there was a Department of Corrections person there also, but it was decided that the statewide people would handle the enforcement aspect of this operation and I would handle any kind of administrative portions of the investigation, such as report writing and evidence handling.
Q. So at some point did the various members of the team disperse to get ready to do what each one was assigned to do?
A. Yes.
Q. And where did you go when that happened?
A. I was downstairs on the front and the side of the residence on Washington Street and on the side of Washington — I'm not sure what the adjacent road was. I was on the perimeter with another person as the statewide people made entry into the side door.
Q. Were you in radio contact of any kind with other teams or command post or anything like that?
A. I was in radio contact with the command post.
Q. Were other people on the teams, that is, the Statewide Narcotics Task Force people, were they in direct contact with the command post or was that going to come through you?
A. No, that was through me.
Q. How many doors did you say that they covered? I'm sorry.
A. That we covered?
Q. That you covered or entered through?
A. They went through — when I saw them they were in the side door, in that door. Whether they're on the first, second, third floor I couldn't tell because they went in that door.
Q. Was that the entry team?
A. That was the entry team.
Q. So those were the guys that were going to go into the apartment and arrest Mr. Vasquez?
A. Yes.
Q. So they went inside. And did you receive any information about their progress as they moved around inside the building?
A. I'd gone inside and come back outside, and darted back inside and came back outside one or two times during that time. And we also had an execution time of 6:00, a.m. So we tried to keep it close to that. But the team was in there a little bit before that and they determined that the third floor was one of the residents where someone was in and they executed. I didn't give them a command to execute or anything like that.
Q. Do you know who made the decision for them to go in the split second that they actually went in?
A. I do not.
Q. Did you receive some kind of indication that they had actually made entry and secured the target?
A. Yes.
Q. How did that happen? Was it — how was that?
A. I either walked in or one of them walked down and told me everything was secure inside.
Q. And so did you proceed to the apartment?
A. Yes.
Q. By the time that you got to the apartment, were they already inside?
A. Yes.
Q. And by the time that you got to the apartment, what was the status of the individuals — the non-law enforcement people inside the apartment?
A. They were secure and in — at least the two males were in handcuffs. I can't be for sure of the female. She might have been. I can't recall. She probably was.
Q. You said they were secure. What do you mean by that?
A. They were handcuffed, out of bed, in a common area outside of the bedroom.
Q. And had you had any information prior to the entry that there might be a female with Mr. Vasquez?
A. Yes.
Q. Did you have any information that there might be another male with the two of them?
A. I didn't have specific information, no, but I knew there were multiple individuals involved in this case.
Q. So when you went up there, how many subjects were there?
A. There were three.
Q. And were you surprised that there were three instead of two?
A. No.
Q. And did you become aware that the subjects had been Mirandized?
A. I observed Sergeant Burns Mirandizing Mr. Vasquez.
Q. So you got there before there was any Mirandization?
A. I got there, yes.
Q. And did there come a time when the team prepared to transport Mr. Vasquez?
A. Yes.
Q. And in connection with that, did they assemble any clothing to your knowledge?
A. Yes.
Q. And can you tell the Judge how that went?
A. I was in and out of the —
Q. I would like you to tell him what you saw.
A. I saw pants being shaken out and items falling to the ground.
Q. And where did those pants — excuse me. Where did those items fall to the ground?
A. In the bedroom. In the carpeted bedroom.
Q. When that was happening, who was shaking the pants, do you know?
A. Trooper Walsh.
Q. When that was happening, where were you?
A. I was either in the bedroom or in the doorway or walking out. I was either on the phone or I was in the process of photographing people. I was moving around quite a bit getting stuff done.
Q. Let's just talk about that for a second. The state police were going to take care of the enforcement action, right?
A. Yes.
Q. You said you were going to have basically administrative duties?
A. Yes.
Q. So did you have a role in determining whether or not one of the subjects was the target?
A. Very much so, yes.
Q. And how was that done?
A. It was by photograph, by identification. I'd never seen Mr. Vasquez before. So I had to confirm that we had the right person and that the other persons in the — that were in the apartment were not involved in this case.
Q. And was that your job to do?
A. Yes.
Q. And what about communicating to a command post or case agent or something that you had a person in custody?
A. I responded via radio and cell phone.
Q. And did you have other communications with the command post or whatever it is during the course of the operation?
A. Yes.
Q. So you were the one who had to do that?
A. Yes.
Q. And you mentioned that you took some photographs of the people at the scene?
A. Yes.
Q. And you also took — did you take other photographs as well?
A. Yes.
Q. And so you had stuff to do it that was your own stuff to do, right?
A. Yes.
Q. So while you're doing that, you said you saw the pants being shaken?
A. Yes.
Q. Do you — did you see the objects that fell from the pants?
A. Yes.
Q. And did you recognize what any of them were?
A. Yes.
Q. Could you tell the Judge what they were or what did they appear to you to be?
A. Retail heroin in retail heroin packaging, as well as cash.
Q. And once you had seen the heroin and the cash, what if anything did you do?
A. I began to process both the heroin and the cash into DEA evidence.
Q. We'll get back to that. Was there a point IN which you were able to see other suspected contraband?
A. Yes.
Q. How did that happen?
A. We went to get him additional clothing, a shirt and pants, or shorts, or something else for him to where. And right next to the bed was his laundry basket. And on top of the laundry basket there was a zippered bag that was open with a large quantity of heroin and some cash in it.
Q. So is it your testimony that you were able to see these items on the top of the laundry basket?
A. Yes, in plain view.
Q. How do you recognize the substance that was there as heroin?
A. Based on my training and experience and knowledge of this case, it was — it looked like a wholesale package, or packages of heroin.
Q. Did someone take that heroin — was there anything with the heroin that you could see?
A. There was some cash with it.
Q. And did anybody take that, seize it?
A. Yes.
Q. Who did that?
A. Myself, with Sergeant Burns witnessing.
Q. Now, you indicated that you took some photographs at the scene, right?
A. Yes.
Q. Can I just show you Government's Exhibit 1. Can you tell me what that is?
A. Yes, that's Mr. Vasquez.
Q. And Government Exhibit —
THE COURT: 1 is all right in, is that right?
MR. HALL: Yes, these are full exhibits, Your Honor.
Q. Exhibit 4?
A. That is the retail heroin that came out of his pocket.
Q. Why do you say retail heroin?
A. That's ready for sale for the street.
Q. And what makes you say that?
A. It's in single dosage glassine envelopes that a consumer would purchase on the street from a distributor.
Q. So these two blue things that I'm pointing to at the top of the photograph, are those the kind of things you were just talking about, the retail?
A. Yes.
Q. And showing you Government's Exhibit 6. Can you tell us what that is?
A. That is the cash that was in the zippered bag that was on the laundry basket.
Q. Aside from the fact that — there's no heroin visible there, is there?
A. No.
Q. Aside from that fact, is that basically what the bag looked like when it was sitting on top of the laundry basket?
A. Yes.
THE COURT: I'm sorry, what number was that?
MR. HALL: 6.
Q. You didn't unzip that bag to see inside of it?
A. No.
Q. If the bag had been zipped shut, would you have known to take it?
A. No.
Q. Did you search the apartment?
A. No, we did not. I did not, no.
Q. Did anybody else to your knowledge?
A. No.
Q. And then this thing, Exhibit Number 7, what's that?
A. That is the wholesale heroin packages. Based on my training and experience, it looks like 3 hundred gram packages of heroin.
Q. Just indicate from the bottom of the package up, there seem to be three sort of balls. Is that what you're talking about?
A. Yes.
Q. And then this thing?
A. Yes.
Q. The top thing which is darker?
A. Correct.
Q. Where was that situated with respect to the bag when you first saw it?
A. In the bag with the currency.
Q. But was it — could you tell the Judge what it looked like? Was it underneath the currency or where was it?
A. It was in with the currency, amongst it.
Q. But your testimony is that you could see it?
A. Yes.
Q. Did you take any picture of it where it was?
A. I did not.
Q. These pictures, that is, Exhibit 7 and Exhibit 6, were they taken at the scene?
A. One of them was. One was not.
Q. Which one was?
A. The cash, as per DEA policy, was photographed at the scene.
Q. What is the DEA policy?
A. To photograph currency that you're going to seize at the scene.
Q. And the bulk heroin or wholesale heroin, as you called it, where was that picture taken?
A. This was at the DEA office.
Q. And the retail heroin, as you called it, Exhibit 4, where was that taken?
A. This was taken in the bedroom.
Q. Can you say where in the bedroom?
A. On the floor, the carpeted floor.
Q. Showing you Government Exhibit 2 for identification. Can you tell me what that is?
A. That's a picture of the other individual. I think his name is Mr. Rodriguez.
Q. And was he wanted as far as you were able to make out at the time?
A. At the time we checked, he was not.
Q. And so he was released, is that fair to say?
A. He was released after we confirmed not only was he not wanted and he wasn't one of the other individuals involved in the case. I didn't know who this person was. So it took a little bit of time to confirm that this person was not involved in the case.
Q. But that was done?
A. Yes.
MR. HALL: I would offer that as an exhibit, Your Honor.
MR. WILLSON: Did you take the photo?
THE WITNESS: Yes.
MR. WILLSON: Okay. No objection.
THE COURT: Number 2, Government's 2 is full.
(Whereupon, Government's Exhibit Number 2 was marked in full.)
Q. And then Government's Exhibit 3 for Identification, can you tell us what that is?
A. Picture of Mrs. Vasquez.
Q. And where was that taken?
A. In the apartment in the common area.
Q. By whom?
A. Me.
MR. HALL: I'll offer that, too, Your Honor.
MR. WILLSON: No objection, Your Honor.
THE COURT: Exhibit 3 will be full.
(Whereupon, Government's Exhibit Number 3 was marked in full.)
Q. In the picture Ms. Vasquez looks a little upset. Can you characterize her demeanor during the time that you were in the apartment?
A. She was upset.
Q. Was she upset the whole time or were there highs and lows?
A. She was crying, not hysterically, but she was upset about the whole situation. She was upset that we were arresting her husband, taking her husband to jail. She was also upset that we were taking her vehicle, which I told her, and she got us the keys. And she was upset pretty much the whole time we were there.
Q. But although upset, was she compliant?
A. Yes.
Q. And was Mr. Vasquez compliant, too?
A. Yes.
Q. Generally?
A. Generally, yes.
Q. So did you, while you were at the apartment, did you package any of the heroin?
A. Yes.
Q. Is that what DEA does, if they can?
A. Yes.
Q. And so you did it yourself?
A. I did it myself as witnessed by Sergeant Burns.
Q. I want to show you what have been marked Government's Exhibit 9 and 10 for identification.
MR. HALL: May I approach, Your Honor?
THE COURT: You may.
Q. Can you tell us what they are?
A. This is the contents of the heroin that was taken from the laundry basket.
Q. And did you put it in that bag?
A. Yes.
Q. That's two bags. But did you put those in those two bags?
A. Yes, I did.
Q. And prior to doing that, did you have occasion to field test those substances?
A. Yes, I did.
Q. And what was the field test for?
A. Positive for the presence of opiates, both of them tested.
Q. So they were positive for the presence of opiates?
A. Yes.
Q. And based on your training and experience, and that presumptive field test, what did you think when you took them, what did you think those things were?
A. Fairly certain this is heroin, the large white package. I'm not sure, even to this day, what this blue substance is. I have never seen it in a blue substance. I was extremely concerned this could be fentanyl. And I'm still concerned it could be fentanyl, which I believe would test positive, I think, as an opiate. But I've never seen it blue. It's definitely lighter and it's different consistency than the other substance. We have not gotten the lab report back. So, as I sit here today, I don't know what it is.
Q. Have both of those been submitted to the lab and then returned to you?
A. Yes.
Q. So the lab has samples that it will test, is that fair to say?
A. I think this is it. This has not been tested yet.
Q. So they haven't taken samples?
A. I don't believe so.
THE COURT: I'm sorry. When you say they haven't taken samples.
MR. WILLSON: Your Honor, I'm just wondering what the point of this is, in light of today's suppression hearing why this is relevant.
THE COURT: This is what he saw, as I understand it. Overruled. Go ahead.
MR. WILLSON: In terms of the laboratory, I thought everything had been sent to the lab and we were awaiting the reports.
THE COURT: Why don't you go ahead and clarify.
Q. After you got this stuff back to your shop in New Haven, was it sent to the lab?
A. Yes.
Q. But there's a delay at the lab, is that fair to say?
A. Yes.
Q. So it wasn't tested yet, right?
A. It has not been tested. The seals are still original.
Q. But we needed it for the hearing, right?
A. Yes.
Q. So somebody went back and got it for us?
A. Yes.
Q. And brought it here today?
A. Correct.
MR. HALL: I would offer those as full exhibits.
MR. WILLSON: Your Honor, I guess I object to this. I don't think they're relevant today. But other than that.
THE COURT: It's overruled. They may come in.
What are they marked as?
MR. HALL: The big one is 9 and the smaller one is 10.
THE COURT: Given that we're not going to keep those, why don't I just look at them now.
(Hands.)
Q. And I want to show you what's been marked as Government Exhibit 11 for identification. Can you tell us what that is?
A. This is the contents of the bag that fell out of Mr. Vasquez's pants.
Q. There appears to be a dark fabric object in there. Can you tell us what that is?
A. That's the cloth bag, the original cloth bag that contained all these items.
Q. And where did that come from with respect to Mr. Vasquez?
A. The pants.
MR. HALL: I will offer that as well, Your Honor.
THE COURT: This is 11?
MR. HALL: Yes, Your Honor.
MR. WILLSON: No objection, Your Honor.
THE COURT: 11 will be full.
(Whereupon, Government's Exhibit Number 11 was marked in full.)
MR. HALL: Thank you, Judge.
Q. Now, did you question — you or anybody question Mr. Vasquez at the scene aside from ascertaining his identity?
A. Yes.
Q. And what did you ask him?
A. In substance, I asked him who the heroin belonged to.
Q. And what was his response?
A. That it was his.
Q. Was there extensive — was there further questioning of him or anybody else there at the scene?
A. There was questioning whether he would give us permission for a consent search. There was some discussions about the property in the car that we were going to return and take out of the car. And there was some discussions about what was going to happen that day.
Q. Did you participate in those discussions?
A. Yes.
Q. Did you have any problem with Mr. Vasquez as those discussions?
A. We'd gotten a little heated conversation, but nothing that was out of normalcy when someone gets arrested six o'clock in the morning.
Q. But by the time that you all left, had that settled down in your view?
A. Yes.
Q. And then did you have occasion to question Mr. Vasquez subsequently at the command post?
A. Yes.
Q. And to your knowledge, again, you saw him Mirandized?
A. Yes.
Q. And did he agree to answer your questions?
A. Yes.
Q. And what did you ask him?
A. I was filling out a DEA Form 202, which is a pedigree form, name, date of birth, address, family members. And one of the questions is occupation. And he said to me I'm a drug dealer.
Q. Beyond that, was there further questioning of Mr. Vasquez before he was processed by the Marshal Service and presented?
A. Nothing additionally other than his pedigree information, his processing information.
Q. So he wasn't interrogated really about the case?
A. No.
Q. Now, with respect to the currency, there were two sets of currency, right? There's the part that came out of his pocket that was in Exhibit 11?
A. Yes.
Q. Do you know how much that was?
A. In his pocket was close to $7,000. $6,900. I'd have to check the report. But it was a substantial amount of money.
Q. And then the currency that was in the zipper bag with the heroin, do you know how much that was?
A. About 26, 2700 dollars. A little under $3,000.
Q. What happened to that currency?
A. From cradle to grave?
Q. No. You took it, right?
A. Yes.
Q. And then you have guidelines or regulations or policies or something?
A. Yes.
Q. What did you have to do with it?
A. It was photographed in place, like I said earlier. Each cash exhibit was put into a self-sealing evidence envelope, and with a witness with me, Sergeant Burns, who signed the envelopes on the sealing line and we sealed up both money exhibits right there at the scene.
Q. And that cash is —
A. That cash was transported by me back to the office where it was converted to a check, made payable, and we subjected to asset forfeiture, administrative asset forfeiture.
Q. So the cash is gone?
A. Yes.
Q. Now, to your knowledge, did any of the state police officers create reports of the operation that morning?
A. No.
Q. Did you create a report of what happened that morning?
A. Yes.
Q. And how many reports did you create?
A. Three or four. Three or four. The DEA Report of Investigation and then some forms with it. So one DEA 6 Report of Investigation, a DEA 7 to put the drugs into evidence. A DEA 7-A to put the phone and I believe an ID maybe into evidence. And the forfeiture paperwork for the processing and the transfer of the money to the Marshal Service.
Q. You MENTIONED a telephone. Was a telephone seized at the premises?
A. Yes.
Q. What kind of phone was it, was it a land line?
A. No, it was a cellular telephone.
Q. And that was processed into evidence in DEA. Do they have that?
A. Yes.
MR. WILLSON: I missed that last question.
MR. HALL: That was processed into evidence.
THE COURT: That being the phone?
MR. HALL: Yes, Your Honor.
Q. So as far as reports that reflect investigative details, how many reports are there?
A. One.
Q. And who wrote that?
A. I did.
Q. Did anybody else write it?
A. No.
Q. Now, did you write it while you were at the premises?
A. No.
Q. Where did you write it?
A. At my office.
Q. And when did you write it?
A. Either the day of or immediately — I started it that day and took a day or so to finish it. Maybe two days to finish it.
Q. Now, you were not present in the apartment for everything that's reported in the report, isn't that right?
A. That's correct.
Q. So what were your sources of information?
A. I spoke with Detective Walsh, I spoke with Sergeant Burns following the events of the day.
Q. And after you created your report, did you submit your report to either Burns or Walsh for their review and concurrence?
A. No.
Q. It's a DEA report, right?
A. Yes.
Q. Were you aware of any responsibility that you would have had to submit a DEA report to a couple of state troopers before you file it?
A. There is none.
Q. So how did you, in talking to Walsh and Burns, how did you guys communicate? I mean, all three in the same place or can you remember how that happened?
A. I spoke to both of them via cell phone, or my office phone to their cell phone, I can't remember which, probably cell phone. I think I spoke to Walsh on one or two occasions and Burns on one or two occasions within the next day or so.
Q. Now, you indicated that Walsh had gotten a pair of pants for Mr. Vasquez to wear out of the house?
A. Yes.
Q. But you indicated that you — that he needed more clothing?
A. Yes.
THE COURT: Needed more?
MR. HALL: Clothing.
Q. What was wrong with the pants?
A. Well, the pants had evidence in them and —
Q. You didn't seize the pants, right?
A. No, we did not seize the pants. Commonly blue jeans or pants like that need a belt, and they can't have a belt — can't process prisoner with a belt. Can't bring a belt into the facility. So usually we try to find a pair of pants that would not have need for a belt. It was warm out. It was summertime. There were shorts right there in the laundry basket as well as a shirt. He had no shirt on. In the laundry basket right next to the bed.
Q. Were there other clothes in the room you could see?
A. No.
Q. Could you see in the closets or anything, were there other shirts and pants and stuff like that hanging around?
A. There was a closet door that was open and there was nothing in there. There was no dresser, no other hampers, no armoire or furniture that would be able to hold or dressers, nothing.
Q. Night table or anything?
A. No.
Q. Did you happen to look at any of the other rooms in the apartment?
A. Briefly. Maybe the other bedroom. I was probably making a phone call, I might have walked into another room to have some privacy. I don't know what room I walked into, but I didn't want to talk to people in front of the defendants.
Q. Aside from the bed that was in that bedroom where you encountered Mr. Vasquez and Ms. Vasquez, did you see any furniture?
A. No.
Q. Did you see any indication that the apartment was actually being lived in aside from the bed?
A. No.
Q. When you saw Walsh shaking the pants, you said these materials that are in the photograph, in addition to some cash, the photograph that's in evidence, that's what fell out of his pocket, right?
A. Yes, that's what was found, yes.
Q. A pouch and some drugs that were prepackaged for sale?
A. Yes.
Q. How did they appear to you on the floor as they fell out? What happened?
A. That photograph is not hundred percent — when it fell out it was open and some of the contents were out. That photograph is by me removing some of the items and laying it on the floor and taking a picture of it.
Q. So that photograph of the stuff that fell out of his pants that's in evidence which I think I've given back to the Clerk, would be Exhibit 4, you sort of staged that a little bit?
A. Staged — I don't know if the word staged fits. I removed some of the contents to photograph it.
MR. WILLSON: I like stage.
A. I removed some of the content to photograph the contents because I thought it would be useful that day in the investigation.
Q. But that's not what it looked like when it came out of the pants?
A. No.
Q. What did it look like when it came out of the pants?
A. The top was open. It was not tightly tied or tied in any way. And anyone with any narcotics experience would look in that bag and see that there's retail heroin in there.
Q. Who picked it up?
A. Walsh.
Q. And how did you get to see it?
A. He left it where it sat on the ground and I processed it, and put it in the evidence bag after I photographed it.
Q. To see that it was drugs, though? How did you end up seeing that it was drugs? When did you realize it was drugs?
A. Walsh told me.
MR. WILLSON: Can we get one question, Your Honor. There's about three.
THE COURT: Let's try it again.
Q. What did you see that led you to believe that it was drugs?
A. I saw the retail heroin packets in it.
THE COURT: I saw the retail heroin packets in it?
A. In the black bag.
Q. How did you see that? In other words, did Walsh hold it out to you or did you pick it up? How did that happen?
A. It was on the ground. And then I picked it up, but I could see it anyway. It was visible.
Q. Could you see it before you picked it up?
A. Yes.
Q. You could see the drugs before you picked up the bag?
A. Yes.
Q. Did you seize the zipper bag?
A. No.
Q. That would be the one that's in Exhibit 11 that's in the hamper?
A. Correct.
Q. You did not seize that?
A. I did not.
Q. Why not?
A. I didn't need to at the time. There was additional evidence to process. I didn't seize the pants. Just add additional evidence to process.
Q. Again, what was your job that day when you went to 100 Wintergreen or Washington Avenue?
A. To arrest Mr. Vasquez.
Q. And did you guys search the apartment at all beyond what you just related to the Judge?
A. No.
MR. HALL: Thank you.
BY MR. WILLSON:
Q. So we don't know where the zipper bag is, right?
A. Is that a question?
Q. It is. Correct? We don't know where the zipper bag is, correct?
A. Correct.
Q. And we don't know where the jeans are, right?
A. You're saying we. You're asking me because you might know where it is. I don't.
Q. Fair point. You don't know where the jeans are, right?
A. Yeah.
Q. Even though they just produced evidence of a crime at the scene, you decided not to seize them as evidence, right?
A. That's correct.
Q. With the zipper bag, were you the person that found the zipper bag or was it somebody else and it was brought to your attention?
A. I initially saw it I believe.
Q. You testified earlier it was on top. It was on top of everything in the laundry basket clear as day?
A. Yes.
Q. And it was already open, is that right?
A. Yes.
Q. And rather than take a picture of the zipper bag as clear as day on top of a laundry basket, you moved it, right?
A. Yes.
Q. And you took the drugs out of it, right?
A. Yes.
Q. And you took a picture of the money because in part you have a policy where you've got to document the money, right?
A. Yes.
Q. But you don't have a policy about taking pictures of the evidence where you found it when it's so important where it was found, right?
A. I don't think we do have a policy. It's the discretion of the agents that are doing the search warrant as per the warrant.
Q. As part of your training, you're not advised that you should capture the evidence where it's discovered rather than move it to another location where questions can arise as to how it was discovered and where it was discovered?
A. If it warrants it sometimes we do, sometimes we don't.
Q. Going into the apartment that day, other than what you had heard generally about the investigation, there was no indication that Mr. Vasquez was going to have a large quantity of drugs with him, is that right?
A. I expect nothing and anticipate everything.
Q. Well, you've been around for a while with the DEA?
A. Yes.
Q. And I'm sure you've had cases where you go in to do a search or arrest and you're anticipating finding a large quantity because there was a controlled purchase or a controlled sale or something right before you do the bust, isn't that right?
A. I do this a long time and I don't anticipate.
Q. Have you had those type of cases? Like a bust/buy, buy/bust, is that right?
A. I don't know what you're trying to ask. You asked me —
Q. In your experience. In your experience, you've done buy/bust cases, correct?
A. Yes.
Q. Where a transaction occurs and you go in immediately to see what's there, right?
A. Not a lot. That's not a level that we deal with.
Q. Have you ever done it?
A. I have done it. We do it to recover evidence.
Q. With Mr. Vasquez, is that what had happened before this?
A. No.
Q. No one had made a delivery, as far as you knew, right before you crashed the door in, right?
A. Not to my knowledge, no.
Q. I'm going to put on the ELMO a document that's previously marked as Defendant's Exhibit A. Do you recall that being the house?
A. I believe it is.
Q. And earlier you testified about where you were located while others were going up the stairwell. Do you remember that?
A. Yes.
Q. And can you give us a reference in the picture as to where you would have been at that time?
A. I was, if you could see the one-way sign to the right, I was between that and the stairwell that they made entry and back and forth. My responsibility was the perimeter of the front and the adjacent side, adjacent street. And there was another individual in the back responsible for the back and other side.
Q. So when you say front, you're referring to the part of the building that's facing us in the picture, is that right?
A. And the right side, as we're looking at it, of the building.
Q. So you're hanging out in the corner area?
A. I'm not really hanging out. I'm moving kind of rapidly between positions because we didn't have a lot of people to cover the place. So I was moving quite a bit.
Q. Was there anybody outside with you?
A. Yes.
Q. Who was that?
A. I believe it was a Department of Corrections person.
Q. Were you there when the dog was brought in?
A. Yes.
Q. Were you the one — did you say anything about taking the dog out of there because he hadn't consented to search?
A. No.
Q. Other than the three people in there, and the furnishings, was there anything else of note found in the apartment or that you saw in the apartment?
A. Of note, no.
Q. We talked about drugs. We talked about packaging. We talked about a little bit of furniture. There's three people. Anything else that comes to mind when you recall the apartment?
A. No.
Q. Did you open any of the folds to actually see what was in those folds that we've seen in exhibits — in the picture with the pouch? Did you open any of those blue folds to see if there actually was heroin inside or anything like that?
A. Yes.
Q. And you did that in the apartment?
A. No.
Q. Where did you do that?
A. At the DEA.
Q. Were you the person that was trying to get Mr. Vasquez dressed or is that one of the other agents?
A. I was helping.
Q. Were you in the room when the pants were picked up and shook?
A. I was in the vicinity. Like I said earlier, I was either in the doorway or in the room.
Q. Show you a picture, Defense Exhibit B. Does that help you remember or you don't remember?
A. I don't know if this is the apartment.
Q. You don't recall this being the apartment?
A. I recall the apartment on August 15th or July 15th, and it looks very different.
Q. There's no carpeting in the photo, right?
A. That's correct.
Q. Otherwise, is it what you recall?
A. It is similar to what I recall.
Q. Just looking at this picture, does that help you remember where you were when the pants were shaken and the bag fell out?
A. I was probably standing right by the door to the bedroom.
Q. Were you a person in authority at the scene, meaning, would you tell Trooper Walsh what to do or somebody there what to do or no?
A. I was one of the supervisors there, but I was in charge of me. And the State Police were in charge of State Police. Me and Sergeant Burns would, if anything needed to be done, we would consult.
Q. You talked about doing the report. You weren't sure if you did it, how quickly you did it. You said maybe a couple of days.
A. I'm pretty sure I started it that day. That's what I usually do.
Q. Do you remember when you finished it?
A. I'd have to look at the report itself.
Q. Ultimately some sort of supervisor would sign off on it?
A. Yes, sir.
Q. Is it your practice to sit and do a report in one finish or, you know, do you deal with phone calls, maybe come back to go it? How do you handle that?
A. On this occasion how I handled it or in general? In this case I think I came to it several times.
Q. And each time you do that, do you save a draft?
A. I hope I would.
Q. General good computer practice, right?
A. Yes.
Q. And the draft that you provided to your supervisor, would that be your final draft?
A. It wouldn't be a draft I'd give to my supervisor. It would be the final copy that I signed. Unless he had corrections, return it and make the corrections.
Q. And you'd agree with me that a report from this type of event, it's important to have all the key information in that report, correct?
A. Sure, it's important.
Q. You know that ultimately Mr. Vasquez is going to be prosecuted, the reports are going to be provided as part of the case, right?
A. Yes.
Q. And you know someone like me or some other defense lawyer is going to take a look at it, right?
A. Yes.
Q. And ultimately the Judge may be called to rely on the report or look at that report in deciding what happened on the day of the arrest, right?
A. Yes.
Q. So you want to make sure that report is nice and thorough, right?
A. As thorough as I can get it.
Q. Before we get to that. So you're outside and they do the entry, right?
A. Yes.
Q. But you get up there even before — maybe a moment before Mr. Vasquez is Mirandized, right?
A. Maybe a little before.
Q. Because you hear him being Mirandized, right?
A. Yes, and I see it.
Q. And you see it. And is generally the Mirandizing of someone one of the first things that happens when someone is arrested?
A. No, I would not characterize that at all. Safety first. Making sure they're okay. Making sure our people are okay. And when we have a moment of pause, usually when they're clear and see what we're talking about and understand what's going on coming into your house early in the morning, some people tend to be a little disheveled. It was a few minutes later.
Q. I just want to put a document in front of you. Just take a couple of moments. Do you recognize that document?
A. Yes.
Q. What is it?
A. It's my report of investigation.
Q. And it's redacted a little bit?
A. Yes.
Q. Did you redact it?
A. I don't know. Sometimes I do, sometimes someone else does. I don't know whether I did this one.
Q. You see on the bottom of the first page it just says approved and Uri Shafir here?
A. Yes.
Q. And the date there is July 21?
A. Yes.
Q. Do you recall whether you provided Mr. Shafir with the report and then made any changes to it after talking with him about it?
A. Not to my memory, no.
Q. Are you in a position now where you supervise other people?
A. Yes.
Q. And so do people sometimes provide you with reports?
A. Yes.
Q. And then you have to sign off as the supervisor?
A. Yes.
Q. And when you're checking them over — you check them over when they give them to you, right?
A. Yes.
Q. And if you see something that looks like it's missing, do you say what about this and this needs to be fixed?
A. No, I don't think missing stuff, unless I was there. Agent Shafir wasn't there. I don't know if he'd be able to have knowledge anything was missing, unless it was a fundamental step in our evidence processing, a procedural step. Maybe if we didn't put it in the bag, he'd probably say why don't you describe putting it in the bag, but no.
MR. WILLSON: Your Honor, I've labeled one with Defendant's Exhibit C. It's a copy of the same thing that's in front of him and I'd offer it as a full exhibit.
THE COURT: Any objection, Mr. Hall?
MR. HALL: Just checking real quick.
No objection, Your Honor.
THE COURT: Defense Exhibit C will be full.
(Whereupon, Defendant's Exhibit C was marked in full.)
THE COURT: And you've got the actual exhibit?
MR. WILLSON: I do, Your Honor.
THE COURT: Make sure you give it to Ms. Johnson. You don't have an extra copy for me, do you?
MR. HALL: I wrote on the bottom of it, Judge, just exhibit whatever it was.
MR. WILLSON: I gave him the stamped one. BY MR. WILLSON:
Q. Were you involved in seizing the car?
THE COURT: Can I just have one moment to read it?
MR. WILLSON: Certainly, Your Honor.
THE COURT: Okay. Whenever you're ready. BY MR. WILLSON:
Q. The car that was seized, was there a plan to seize the car before the arrest even occurred or was that a product of the events?
A. I was told to seize the car if it's there.
Q. Do you know ultimately whether that car was returned or not?
A. I don't know. I know I processed it for forfeiture.
Q. So you're part of a team. You go to Mr. Vasquez's house. But there's a whole bunch of other teams that day too, right?
A. Yes.
Q. Were you involved in trying to go and then arrest anybody else in connection with the case or was it just Mr. Vasquez for your team?
A. My team had additional responsibilities, but I also had responsibilities with Mr. Vasquez to process him. So they might have been cut loose to do something else but me, as a member of the team, was handling Mr. Vasquez and eventually the evidence I seized.
Q. So you're at Mr. Vasquez's place at 6. You didn't have to be somewhere else at 9 to bust down another door or anything like that, right?
A. No.
Q. What were you wearing when this happened?
A. I was either wearing a visible DEA raid ballistic vest or I was wearing a ballistic vest with a DEA raid jacket on. With the weather, it depends on the weather. I more likely had a vest with visible police on both sides, front and back.
Q. Do you recall when you entered the apartment yourself whether you had a firearm drawn or anything out like that or were your hands free?
A. I did not have my gun drawn that day at all.
Q. What kind of firearm do you usually have in that situation?
A. A Glock pistol.
Q. Do you recall the firearms that were being used by others that day?
A. Yes.
Q. Did anyone have something larger than a handgun?
A. I don't recall. I don't know.
Q. When you do these sort of entries with a group of people, is it the usual practice for someone to have a more serious firearm in case there's a problem?
A. I can just talk to practice. DEA practice is someone usually has a long gun, a rifle. And statewide probably does the same thing, at least one person has a rifle either in the car or with the enforcement team as policy. Not policy, but as a good practice.
Q. You just don't specifically recall from this day?
A. I do not.
Q. Do you recall whether anyone was wearing any sort of helmet or head gear or something on their face other than a baseball cap?
A. I don't believe so.
Q. Were you the person that took Mr. Vasquez from the scene to wherever he was going next?
A. No.
Q. Who did that?
A. I do not know. One of the people. Could have been the Correction guy with us, that was with us also, or it could have been a combination of the state police and someone else. I don't know. I saw back at the assembly area.
Q. Is there normally a Corrections officer as part of these teams or was that unusual?
A. Not unusual for large take-downs that we have. They've assisted us before in processing and handling the prisoners.
Q. Are they specifically part of the Statewide Task Force or are they brought in for the day?
A. They are brought in for the day.
Q. You've had a chance to review your report, right?
A. Yes.
Q. And does that appear to be the report you created following this event?
A. It appears to be, yes.
Q. You said something — let me start again.
Assistant U.S. Attorney Hall asked you about whether Mrs. Vasquez was cooperative or combative and you said, no, she was fine. And then he asked you about Mr. Vasquez and you said, well, and you said something not out of normalcy for someone who gets arrested at 6:00 in the morning. That's what I wrote down. Do you recall that part of your testimony?
A. Yes.
Q. In your experience, people who get arrested at 6:00 in the morning — what did you mean, I guess, when you said not out of normalcy for someone getting arrested at 6:00 in the morning?
A. They're usually argumentative, not knowing why they're being arrested. That we have no right to come in their residence to get them. Those kind of arguments. Those kind of exchanges.
Q. How many of these have you done over the years, roughly?
A. Hundreds.
Q. Hundreds. Lots and lots. How often do you show up and everyone's awake and ready to go?
A. Depends what time we're going.
Q. When you're there at 5:45 in the morning, how often is whoever you're going to get there and ready to go? Is that a regular thing or is it more often —
A. There's no saying what it is. If it's wintertime, people stay in bed early in the morning. If it's summer time, people tend to be up earlier in the morning because it's lighter out. Sometimes they're asleep, sometimes they're not. I've been to a door 3:00 in the morning and Everyone was up. I've been at 3:00 in the afternoon and everyone's been asleep. There's no rhyme or reason to it.
Q. Would you agree with me, though, that if you were going in the middle of the day more often people are up, and if you're going at 6:00 in the morning more often people are asleep or just immediately responsive?
A. That's fair at times. But more likely they'll be at their domicile or where they're residing early in the morning, whether up or having breakfast or showering, but they'll usually be at a home or at a residence location.
MR. WILLSON: If I could have a moment, Your Honor?
THE COURT: Yes.
MR. WILLSON: Your Honor, I have nothing further at this time.
THE COURT: Redirect.
BY MR. HALL:
Q. This Uri Shafir fellow, he was your supervisor at that time? He's the guy on the report.
A. Yes. He was my supervisor that signed this report, but I'd been promoted at that time actually.
Q. But he signed the report as the supervisor?
A. Correct.
Q. Did he participate in this operation, the arrest of Mr. Vasquez?
A. No.
Q. He wasn't there?
A. He was not.
MR. HALL: I don't have anything else, Your Honor.
THE COURT: You can step down.
MR. HALL: That would conclude the Government's presentation.
THE COURT: as discussed, we will reconvene I think we said March 29 at 9:00.
Thank you very much. We'll be in recess.
(Concluded.)
I, Martha C. Marshall, RMR, CRR, hereby certify that the foregoing pages are a complete and accurate transcription of my original stenotype notes taken in the matter of UNITED STATES V. VASQUEZ, which was held before the Honorable Michael P. Shea, U.S.D.J, at 450 Main Street, Hartford, Connecticut, on March 17, 2016.
THE COURT: Good morning. Please be seated.
We're going to continue the Motion to Suppress hearing in United States versus Jose Vasquez. The case is 15CR119.
Let's have counsel state their appearances, beginning with the Government, please.
MR. HALL: Good morning, Your Honor. Gordon Hall for the Government.
THE COURT: Good morning.
MR. WILLSON: Good morning, Your Honor. Charles Willson for the Federal Defender's Office. To my left is Mr. Vasquez.
THE COURT: Good morning. I think the Government rested at the end of the day last time, is that right, Mr. Hall?
MR. HALL: Yes, Your Honor.
THE COURT: Mr. Willson, do you have some witnesses?
MR. WILLSON: I do have one, Your Honor. I ask Elizabeth Vasquez to come forward.
THE COURT: Good morning, ma'am. If you could please face the courtroom deputy. Raise your right hand.
ELIZABETH VASQUEZ, called as a witness by the Defendant, having been duly sworn by the Clerk, was examined and testified on his oath as follows:
THE CLERK: State your name, city and state, and spell your last name.
THE WITNESS: Elizabeth Vasquez, Reading, Pennsylvania.
THE COURT: Ma'am, if I could ask you to pull that microphone nice and close so the court reporter can hear what you're saying.
Mr. Willson, go ahead.
MR. WILLSON: Your Honor, as you may recall, there were some exhibits that were admitted last time. I may venture towards your deputy's desk because they're out front there to get them as I need them with your permission.
THE COURT: Absolutely. You can approach her to show her things.
DIRECT EXAMINATION
BY MR. WILLSON:
Q. Good morning, Mrs. Vasquez.
A. Good morning.
Q. I think you said you lived in Reading, Pennsylvania?
A. Yes.
Q. How long have you lived there?
A. Most of my life.
Q. And you live there currently?
A. Yes.
Q. In the home that you're in, how long have you been in that home?
A. Ten years.
Q. Who do you live there with?
A. My husband.
Q. How long have you been married?
A. Nine years.
Q. And what's your husband's name?
A. Jose Vasquez.
Q. And that's the defendant over there?
A. Yes.
Q. I want to take you to the summer of 2015. So just last summer. Okay. Specifically, in July. At that point, were you living with your husband?
A. We were separated. We were off and on.
Q. And where was he spending more of his time?
A. In Connecticut. He was back and forth.
Q. How often would you see him?
A. Maybe once, twice every two weeks I would come up.
THE COURT: I just didn't hear what you said.
A. I said once or twice every two weeks.
Q. July 15th, was he in Connecticut at that time?
A. Yes.
Q. And were you in Connecticut?
A. Yes.
Q. Where was he staying?
A. In an apartment in West Haven.
Q. Do you remember anything about the building?
A. Yes.
Q. Tell us about it.
A. It's a corner building, Washington Street. It was third floor apartment. The building was vacant. The only unit taken was the third floor.
MR. WILLSON: Your Honor, I'd like to just show her a picture here.
THE COURT: All right.
Q. Do you see it on the screen in front of you there?
A. Yes.
Q. And is that the building you were just talking about?
A. Yes.
THE COURT: That's already in, Mr. Willson?
MR. WILLSON: That is, Your Honor. That was Defendant's Exhibit A from the previous hearing.
THE COURT: Thank you.
Q. Do you recall how you would enter that building to go to the apartment?
A. There was two entrances, but this is the one that I came in through, right here on the left-hand side.
Q. So as we're looking at the picture, it's the one between the yellow house and the blue house?
A. Yes.
Q. And what floor was the apartment on?
A. On the third floor.
Q. Do you recall how many bedrooms there were?
A. It was two bedrooms.
Q. Can you describe the rest of the space?
A. When you walked into the door, when you first came in, it was a living room space. And then right off to your right there's one bedroom, which that's where we slept at, and right next to it it's another bedroom. And then if you walk straight, you can see the kitchen, and the bathroom is right off to the left. And then there's another door. If you walk a little bit more, there's another door that that's the back entrance.
Q. How many nights did you spend there?
A. I was there two nights.
Q. I'm going to show you another picture. This was Defendant's Exhibit B from the previous day's hearing. Do you recognize that?
A. Yes.
Q. And what is that?
A. That's the entrance to the bedroom from the living room area.
Q. As we look to the right of the picture, there's a door that's open and it's a little bit dark. Do you recall where that door comes from?
A. That door comes from the entrance that I told you between the two houses, that's the door.
Q. And a second ago you said there's a door to a bedroom?
A. Right off of that to your left.
Q. And when you stayed off of there, do you recall which bedroom you stayed in?
A. The front one where we can see the window.
Q. So it's the one in that picture there?
A. Yes.
Q. I want to put another picture in front of you, Mrs. Vasquez, and ask if you remember that. It's been marked for identification only so far as Exhibit D, Defendant's Exhibit D. Do you recognize that picture?
A. Yes.
Q. And could you tell us what it is?
A. That's the bedroom.
Q. Now, we've heard some talk that there was carpeting on the day in question?
A. Yes.
Q. Other than the carpeting, is that pretty accurately what you recall of that bedroom?
A. There was an air mattress.
Q. There was different furnishings?
A. There was only an air mattress and a television.
MR. WILLSON: Your Honor, we'd offer that as a full exhibit as Defendant's Exhibit D.
MR. HALL: No objection.
THE COURT: No objection?
MR. HALL: No objection.
THE COURT: Exhibit D will be full.
(Whereupon, Defendant's Exhibit D was marked in full.)
Q. So looking at that picture, Mrs. Vasquez, you said you were staying over and staying in that room. Do you recall roughly where the air mattress was in the room?
A. Yes. It was coming from the wall on your left like out like this. It was against — it was like that. And then the T.V. was right in front of the — like stand in front of the doors, the closet doors.
Q. We're going to try another picture here. I confess it's a little dark. Do you recognize what's in that photo, Mrs. Vasquez?
A. It's just the room.
Q. Same room?
A. Yes.
Q. All right. Different angle?
A. Yes.
Q. Again, does that picture seem to accurately capture the room you stayed in aside from the carpet?
A. Yes.
MR. WILLSON: Your Honor, I'd offer that as Exhibit E.
MR. HALL: If I could just really quickly, Your Honor?
THE COURT: Yes.
BY MR. HALL:
Q. So that in Exhibit E that you're looking at now, if you walked into the doorway of the room, as you described it, would you be walking in toward those windows?
A. Yes.
Q. And the bed would be?
A. To the left.
Q. To the left?
A. Uh-huh. And then there's a closet there and a TV right there.
Q. So the bed would be on the wall opposite the closet?
A. Right.
Q. And the TV would be over by the closet?
A. Yes.
Q. And would the bed be coming out from the wall or along the wall?
A. Out from the wall.
Q. So if you laid out on the bed, you'd be sort of perpendicular to the wall?
A. Yes.
THE COURT: No objection?
MR. HALL: No, Your Honor.
THE COURT: Defendant's Exhibit E is full.
(Whereupon, Defendant's Exhibit E was marked in full.)
BY MR. WILLSON:
Q. Mrs. Vasquez, you see in the picture there's what looks like a matt in the corner there?
A. Uh-huh.
Q. So if we were to turn that matt and put it against that wall by the socket that's way to the left, is that roughly where the bed would have been?
A. Yes.
Q. Do you recall when you stayed there whether there was air-conditioning?
A. Yes.
Q. There was an air-conditioner?
A. Yes.
Q. And was it a window unit?
A. A window unit.
Q. Was there an air-conditioner in that bedroom?
A. Yes.
Q. When you went to sleep at night, was the air-conditioner running?
A. I had gotten up a little earlier and turned it off because it got cold.
Q. We're going to get to that specific day. You may have gotten ahead of me there. In general, when you went to bed those two nights, do you remember it running that night?
A. Yes.
Q. When you made the trip from Reading to West Haven, do you remember what you brought with you?
A. My dogs, my three dogs, and just like my bag with, you know, like clothes. Just personal things like that.
Q. Okay. Bags with your clothes or was there some of Mr. Vasquez's?
A. There was some of my husband's clothes, because when he left he was so upset he just left. So I brought some clothes for him.
Q. And what did you use to carry the clothes?
A. I had a basket.
Q. What kind of basket?
A. Like a, you know, in a laundromat, a little basket.
Q. Rectangular?
A. Yes.
Q. And is it the type of basket where there's openings on the side or was it solid on the side?
A. No, it had little openings all around.
Q. And when you were staying in the room — let me know if the other picture is more helpful — was that basket in a certain spot?
A. Yes.
Q. Whereabouts was it, roughly?
MR. HALL: Could I just object to the form? Are we talking about generally or on a particular day?
THE COURT: The question was when you were staying in the room, was the laundry basket in a particular spot. She said yes, it was in a particular spot.
Q. Can you tell us where that spot was?
A. Where this picture's taken from, it's taken from the doorway. So right on the left-hand side of that wall, it was right there.
Q. Just so I understand, so as you step into the room, it would be immediately to your left?
A. Yes.
Q. And it would be sort of — so if we're standing here in this picture, let's say we're standing in the living area, the living area where you first come in, would you be able to see the laundry basket from there?
A. No.
Q. Am I right that it would be sort of tucked behind that wall to the left that's sort of facing us?
A. Yes.
Q. So you said you probably stayed there two nights. Do you recall staying there the night of July 14th into the morning of July 15th?
A. Yes.
Q. All right. And when you went to bed that night, was the air-conditioner running?
A. Yes.
Q. When you went to bed that night, do you remember what you were wearing?
A. Shorts and a t-shirt.
Q. And do you remember what your husband was wearing?
A. Boxers.
Q. Was there anyone else staying in the apartment?
A. Yes.
Q. Can you tell us who that was?
A. Carlos.
Q. Carlos. It was a man?
A. Yes.
Q. And were the dogs there?
A. Yes.
Q. You mentioned earlier that you brought your dogs from Pennsylvania. How many dogs?
A. I have three dogs.
Q. What kind?
A. I have two Maltese and a Shih Tzu.
Q. Perfectly fine. How long have you had the dogs?
A. One of my dogs I had had already for 12 years, and then the other one for 10. And the smallest one I had maybe — I had gotten it like November.
Q. The small one, do you know how old it is now?
A. Probably like seven or eight months.
Q. Seven or eight months?
A. Yeah, something like that.
Q. Can you tell us something about their personality, how active they are?
A. They're very active. Especially my second Maltese, she's all over the place, always barking, stuff like that.
Q. Is it the sort of situation where one dog barks, the others chirp in?
A. Oh, yeah.
Q. Where do they sleep normally?
A. With us.
Q. In the bed?
A. Yes.
Q. When you were in West Haven, were they sleeping with you in the bed?
A. Yes.
Q. Do they sleep at the foot of the bed or they fight for the pillow?
A. One sleeps toward the foot of the bed, one sleeps next to me, and the other sleeps in between me and my husband.
Q. So let's go to the morning of July 15th. You started to say something earlier about waking up and turning off the air-conditioner. Can you tell us more about that? What do you remember?
A. Well, I remember it was really cold so I got up to turn the air-conditioner off and to use the bathroom.
Q. Where was the bathroom in relationship to the bedroom again?
A. If you left the bedroom, the apartment's like long, so you would go right through the living room and right in the kitchen. Right in the kitchen, right there's the bathroom.
Q. I'm going to put in front of you another photo. This one has been marked as Defendant's Exhibit F. Ask you to take a second to look at it. Do you recognize that photo?
A. Yes.
Q. And can you tell us where you think it was taken?
A. That's taken from the kitchen.
Q. A second ago you talked about leaving the bedroom to go to the bathroom?
A. Yes.
Q. In that picture, where in relationship?
A. The doorway right here on the right. That's the bathroom.
Q. And then the bedroom is that far from us in this photo?
A. Yes.
Q. Again, other than maybe carpeting having been on the floor, is that a fair and accurate representation of the apartment as you stayed there?
A. Yes.
MR. WILLSON: I'd offer that as a full exhibit.
MR. HALL: No objection.
THE COURT: Exhibit F is full.
(Whereupon, Defendant's Exhibit F was marked in full.)
Q. So you had to cross the living area which is near the entry door?
A. Yes.
Q. And then go to the bathroom. I'm going to ask you a personal question. Do you remember if you went to the bathroom with the door open or closed?
A. With my door closed.
Q. And at this point in the morning, was there daylight starting to come in or was it dark?
A. It was still a little dark out.
Q. Do you remember checking or noticing the time anywhere?
A. It was a little bit after five.
Q. And at that time did you hear anything unusual?
A. No, no.
Q. And so after you went to the bathroom, did you go back to bed?
A. Yes.
Q. Into bed with the dogs?
A. Yes.
Q. Did you fall asleep again?
A. I started to doze off. I wouldn't say I was in a deep sleep. I started to doze off.
Q. What's the next thing you remember happening?
A. I hear a bang, my dogs start barking. And right after that I heard another bang and I heard DEA, DEA search warrant. And they rushed into the apartment.
Q. So let's slow that down for one second. You said you heard a bang?
A. Yes.
Q. Now, was it surprising?
A. Yes.
Q. And then you said you heard another bang?
A. Right.
Q. Any memory as to how long between the two bangs?
A. It was like right away. It was like banging and my dogs started barking. It was like, you know, I got scared and end up second banging and the door swung open.
Q. The door to the apartment or the door to the bedroom?
A. Well, the door to the apartment.
Q. How do you know it was the door to the apartment?
A. Because I heard the door break and — once the door broke, I heard DEA, you know, DEA search warrant. And I was — and they rushed in, into the room.
Q. Someone came into the bedroom?
A. A couple of them came into the bedroom.
Q. Do you remember if the bedroom door was open or closed?
A. It was like this.
Q. So a bit ajar?
A. It was open just a little bit.
Q. When they came into the room, where were you?
A. I was laying in the bed.
Q. And was your attire the same, still the shirt and the shorts?
A. Yes.
Q. And where was Jose?
A. In the bed.
Q. Did you notice whether he was waking up?
A. Yeah, we got up. I mean, we heard the banging.
Q. And did the dogs stay with you or did they go to see what was going on?
A. No. My dogs started barking, you know, they were on the bed. So when they started barking I just like, you know like — and one jumped off the bed to see and one of the agents said — he asked if my dog would bite him. And I was like no. Just don't hurt my dogs. They bark. They bark at any little noise that they hear, they're going to bark.
Q. You mentioned the bed a few times. Describe the bed for us.
A. It was an air mattress.
Q. No frame?
A. No. It wasn't anything like that.
Q. Did you sleep on it both nights?
A. Yes.
Q. You mentioned there was a TV, there was a laundry basket. Was there any other furnishings or items in the room?
A. No, there was nothing else. Like furniture wise there was the television and the air mattress.
Q. The bags that you had brought with you, where were those?
A. The basket was right on the right-hand side when you walk into the room, and then I had like a little duffel bag like this with like personal items like shampoo.
Q. Where was that?
A. Right next to — if I was laying on the bed, it would be right in front.
Q. Now a second ago you said the laundry basket was on the right-hand side of the room?
A. Right.
Q. Is that from you sitting in the bed or is that as you're entering?
A. No. If I'm standing in the doorway to the room, it's right there. I'm sorry. On the left-hand side of the room. I'm sorry.
Q. That's fine. So you said they come into the room. Can you tell us about their appearance?
A. They were — they had masks on, they had street clothes on. They just kept yelling where's the guns, the drugs, and the money.
Q. Do you remember how many people?
A. I want to say three or four of them went into the room. One was standing like in the doorway.
Q. And you said their guns were drawn?
A. Yes.
Q. Do you remember anything about the guns?
A. One was a real big one with a light on it. That was the bigger agent. He had the mask on. Like the ski mask.
Q. And then the other agents or law enforcement, whatever they were, were they wearing baseball hats?
A. They were in street clothes. They weren't like in a uniform. They just had, you know, regular street clothes. I remember one having like jeans and sneakers.
Q. And they were asking you questions. Did you respond when they asked questions?
A. Yes.
Q. Do you remember anything about what you said?
A. When they came into the room I was — and they kept asking me where's the drugs and the money, and I'm like I don't know what you're talking about. And then they just kept yelling, you know, repeating the same thing just over and over. And then they took me out of the bed.
Q. Let me stop you for one second. They were asking where's the drugs. When you had gone to bed that night, do you remember seeing anything that looks like drugs?
A. Nothing.
Q. So you didn't see anything that looked like drugs out in the room?
A. No.
Q. Do you remember what the — seeing any large quantities of money out in the room?
A. No.
Q. The laundry basket, were there clothes in the laundry basket?
A. Yes, there was.
Q. And were you using it to dump in dirty clothes or to bring clean clothes?
A. No, that was clean clothes. It was neatly folded.
Q. Who folded it?
A. I did.
Q. Had you folded it in Reading?
A. Yes.
Q. When you came to West Haven, you brought the laundry basket in?
A. Yes.
Q. Did you make any changes to it while you were there?
A. No.
Q. Whose clothes were in the laundry basket, do you remember?
A. It was mine and some of my husband's.
Q. So they come into the room. Where's the drugs, where's the money. Do you remember them saying anything else?
A. The guns.
Q. Had you seen any guns?
A. No.
Q. What happens next?
A. They go — one agent said to us like don't move. Like we need to see your hands. And I remember the one agent approached my husband and said to you, oh, Wilson. And I looked at him and I'm like, that's not Wilson, you know. And that's when they took my husband out of the bed and took me out. They searched me. They searched my husband. They handcuffed me and they took me to the living room.
Q. You said that's not Willson. Did you actually say that out loud or was that something that went through your mind?
A. No, I said that. But they were still yelling so I don't know if he actually heard. But I said that's not Wilson.
Q. Now, do you know a Wilson?
A. Yes.
Q. Who's that?
A. Wilson is my brother-in-law.
Q. Is that Jose's brother?
A. Yes.
Q. And are you aware of whether he has a case that's pending in the Federal Court?
A. Yes.
Q. So they came into the room, they asked questions. They tell you to show them your hands. How did they get you out of the bed?
A. Well, I had my hands like this. He grabbed me by my arm, put me on the ground, you know, and put the handcuffs on me.
Q. When you had your hands like this, were you still sitting in the bed or were you sitting up?
A. No, I was still in the bed. Because when they came in yelling, you know, they were like don't move. And that's exactly what we did. We didn't move.
Q. And when you say they put you on the ground, what way were you on the ground?
A. Face down.
Q. And —
A. They handcuffed me.
Q. They handcuffed you behind?
A. Yes.
Q. How did they get you off the ground?
A. The agent grabbed me by my arm, through here, and stood me up.
Q. Were you hurt in the process?
A. No.
Q. Uncomfortable?
A. Scared.
Q. Do you remember whether you were crying at this point?
A. I think I was in shock with everything going on. Like I didn't know what was going on. So, you know, I'm still just in shock, just scared, you know, all types of emotions, like what's going on.
Q. Did you feel like you were in charge of the situation or they were in charge?
A. No, they were in charge of the situation since they came in.
Q. As this is going on with you, were you able to see anything that was happening with your husband?
A. Yes.
Q. What did you see?
A. They took us both out to the living room.
Q. We're going to get to that. You're in the room. You're getting cuffed, put on the floor, the whole thing. Do you see —
A. They searched my husband. He didn't have too much, but boxers and —
THE COURT: I'm sorry, I didn't hear you. You said they searched my husband and I missed the last thing.
THE WITNESS: Like he didn't have no other clothes on but boxers.
THE COURT: He just had boxers on?
THE WITNESS: Yes.
Q. And do you remember how they got him out of the bed or anything like that?
A. Same way.
Q. What do you mean, same way?
A. Well, they took him by his arm, you know, handcuffed. When I seen them put his hands like this, that's when they put me down to the floor so. And after that I —
Q. So when you're face down you don't see?
A. No, because they had me on one side of the bed and they had him on the other side.
Q. Then you said they took you out of the room?
A. Yes.
Q. When they take you out of the room, where is Jose, does he come with you?
A. Yes.
Q. When they take you out of the room, where do they put you?
A. In the living room.
Q. So looking, again, at Defendant's Exhibit B. At this point are you able to see into the bedroom?
A. Yes.
Q. So are you standing roughly where this photo is taken, somewhere different?
A. A little bit over to your right there's a wall there, just a little bit over right there. They had my husband on the left-hand on that wall.
Q. Out in the living area?
A. Yes.
Q. So is it accurate to say that you were closer to the entry door into the apartment or were you on the other side?
A. If you're looking at this picture and you see the doorway there, right off to the ride there is two windows and then there's another wall that comes like that like facing the door.
Q. So is that where you are, by those windows?
A. Yes.
THE COURT: Mr. Willson, I'm confused. Maybe you can clarify a little bit.
MR. WILLSON: I think I have another picture that will help quite a bit.
Q. I'll put in front of you a photo that's been marked as Defendant's Exhibit G. Ask you to take a second look at that.
Do you recognize that photo?
A. Yes.
Q. What is it?
A. That photo is being taken from the living room area.
Q. And as we look at that photo, can you give us a sense of where the entry door is to the apartment or the bedroom?
A. Well, it's — there's an entry door there because you can go in through the kitchen, but there's one — from where this picture is taken the door is directly, if you walk straight back, it's the bedroom. And if you walk back but over to your left, would be the main door to come into the apartment.
Q. Okay. So as we look at this photo and we see a window and a doorway that looks like it goes to a balcony. The entry door to the apartment would be to the left?
A. There is one there.
Q. The entry door that we've talked about them breaking in?
A. No, it's not on this picture.
Q. But it's to the left around that picture?
A. No, it's back. If I'm standing here in the living room, if this is the living room and I'm taking this picture, right here is the doorway that they broke in, and right here, right behind me is the door for the bedroom.
THE COURT: Are you going to offer that?
MR. WILLSON: I'll offer it as a full exhibit. I don't know if that will help.
Mr. Hall: No objection.
THE COURT: Defendant's Exhibit G is full.
(Whereupon, Defendant's Exhibit G was marked in full.)
BY MR. WILLSON:
Q. So this is looking away from near the entryway door that we discussed?
A. Yes.
Q. I'm going to try again with Exhibit B.
Mrs. Vasquez, to the right in the picture is the entryway door that was broken in, correct?
A. Yes.
Q. So were you put on the wall that's just off the right, to the right of that picture?
A. Right to this picture is windows, but there's another — like those are the windows and there's another wall here. That's where I was at.
Q. Were you able to see into the bedroom from that perspective?
A. Yes.
Q. And meanwhile, your husband was away from you?
A. On the other wall to the left.
Q. So when you're out in the living area, at this point do you have any sense of how many people are in the apartment?
A. There was, I want to say, five, five or six of them.
Q. Five or six law enforcement?
A. Yes.
Q. Other than the guy with the long gun and the mask, they're all dressed roughly the same?
A. They all had street clothes.
Q. While you're out in this area, are they still asking you questions?
A. When they had me up at the wall, the one agent was asking me when did I get here and like where's my vehicle.
Q. Where are the dogs at this point?
A. When they came in they first came — when the DEA first came in, then like a couple minutes later one came in with a dog, and my little dog went running, you know, like going towards the dog, and he pushed the dog back. And that's when one of the DEA let me grab my dogs and put them all in the bathroom and shut the door.
Q. Which door ran at the DEA dog?
A. My teacup Maltese, she's like three pounds. She went over.
THE COURT: Suicidal. Sorry.
Q. It's a brave dog.
A. She is.
Q. At that point you put the dogs in the bathroom and they're sort of out of the scene?
A. Right.
Q. Until that, from the point where the agents broke into the apartment until you're over the wall and you scoop them up and put them away, did the dogs calm down or are they acting crazy?
A. No, they're still barking. Not as much because now we're up and they're in there with us, but they're still barking. Because now they're walking back and forth. And the little one, like I told you, she's really feisty. And, you know, they're walking, they're going into the bedroom, they're coming back out, you know, the high voices. They're not used to that. So she's out of whack and just barking.
Q. Are the other two more just staying with you and your husband?
A. They'll stay right next to us, yes.
Q. You two are split when you're out in the living area. Are they going back and forth or staying with you?
A. What, the dogs.
Q. Yes.
A. Well, the little one was right next to my husband. When the officer or the agent whatever came in with his dog, that's when she started running towards.
Q. And so they bring in a dog. Do you remember what kind of dog it was?
A. It was a big dog. I would say like a German shepherd.
Q. What did they do with the dog?
A. They took the dog — he stood standing right there holding the dog, and I told him let me put the dogs away. And I went and I put the dogs in the bathroom. Then they came in. He took the dog into the room.
Q. Into the bedroom?
A. Yes. And he took the dog into the bedroom and he has the dog like this, and then I see when he went like this, like move the door, the closet door, and there was some marijuana and he threw it on the floor, like throw it on the floor. And he was like get it — he was staying something because I was like smell it, I guess, and then kept going with the dog.
Q. So the agent found some marijuana in the closet?
A. He opened the closet door and he took it and he threw it on the floor.
Q. How long from when he opened the closet door until he seemed to find the marijuana? Was it like that?
A. It was on the shelf.
Q. Did you see him reach up?
A. Yeah. He went like this, I see him, you know, going and throwing. Then he was like, look, Sarge, I guess his boss was there, I don't know.
Q. And you see him trying to do something with the dog, but you're not a dog professional, right?
A. Very far from that.
Q. You don't train dogs or anything like that?
A. No.
Q. Did the dog seem to get excited or show any reaction to anything else?
A. Well, the dog was just like his tail was going, the dog's tail's going, and he's going like this and taking the dog around like the room.
Q. And was there any point where the dog — your impression was that the dog had found something or did that not happen?
A. No, the dog didn't — the dog was smelling the marijuana that was on the floor that he took from the closet and threw on the floor, that's what the dog was smelling. But there was nothing else.
Q. At some point did you see the dog leave the apartment?
A. Yes.
Q. When was that?
A. After he did that he came out with the dog and came into the living room through the bedroom, and then they took the dog out.
Q. Did they ask you any questions about jewelry or anything else?
A. Yes.
Q. What did they ask you?
A. They asked me — he said to me, oh, wow, look at all that jewelry. And I said to him it's not a lot of jewelry. Those are my wedding bands and my watch.
Q. Did they ask you about anything else?
A. The one agent asked me if they were real.
THE COURT: If what were real?
THE WITNESS: If my diamonds on my rings were real.
Q. When they were asking you these questions, were you in the bedroom or out in the living area?
A. In the living room.
Q. Could you hear any of the conversation or anything that was being said with your husband?
A. Well, my husband was — they took my husband — they were in the room. And I can see the one agent and — one agent that's standing right next to me, he says to me, because my husband got upset, and he said to me your husband needs to calm down or they're going to take you too. I said, take me where? He said they were going to take me too. I said, take me where? So I see him — the only thing that's there right next to the door when you first come in on your left-hand side is the basket and I seen him in there. So they call my husband — before — I'm sorry. Before that, I see an agent and he says — my husband had like the boxer shorts thing. They said that my husband has shorts on. That is he had shorts on, you know, his boxer shorts on. So they said something about clothes. And my husband's pants were on top of the basket and I see the agent grab the pants, they were rolled up, and he grabbed them like this and he started shaking them upside down.
Q. You said they were rolled up. What do you mean they were rolled up, the pants?
A. Just — well, you roll them and put them in the basket.
Q. Were they hanging over the side of the basket?
A. No, they were in the basket.
Q. Rolling up the pants, is that something that your husband normally does?
A. That's a habit that my husband has.
Q. So you're not the one that puts it like that?
A. No.
Q. So they unroll the pants, they get the pants upside down, they're shaking them, that you remember?
A. Yes.
Q. And do you remember anything coming out of the pants?
A. Yes.
Q. What do you remember coming out of the pants?
A. Money.
Q. Anything else?
A. Again, the Agent said, that was in the room doing that, you know, shaking the pants he said, look, Sarge, it's just money.
Q. Did he say anything else at that time?
THE COURT: Did he say anything else at that time?
THE WITNESS: No.
Q. Do you remember anything else falling out of the pants?
A. No.
Q. As that's happening where the pants are being unrolled, shaken, where is your husband?
A. They have him in the living room.
Q. So he's not in the bedroom?
A. No.
Q. The agent that's shaking the pants, is he the only one in the room?
A. Him and another one was standing in the doorway like off to the side. You know, he was in the room, but not like —
Q. Looking at Exhibit B, is he —
A. He's standing like where the door is in the bedroom, right there.
Q. So right in the doorway?
A. Right.
Q. And is there another agent that's right on his shoulder looking over him?
A. No, no. Just the one — the other one that was in the room shaking the pants.
Q. There's an agent with you?
A. Yes.
Q. And is there an agent with your husband?
A. Yes.
Q. Is there a fifth agent wandering around somewhere?
A. There was a gentleman, I want to say maybe he was their boss or supervisor, because every time when he shook the pants that the money came out he was like look, boss, I found this.
Q. So he was brought over after that was found?
A. Yes.
Q. Before that was found, do you remember where he was?
THE COURT: Where he?
Q. The guy that seemed like the boss was?
A. He was right there in the living room.
THE COURT: In the living room?
A. Yes, in the living room.
Q. Before that, did you notice them finding anything else that seemed to generate some interest?
A. After he grabbed the pants and they were shaking them, he was in the basket.
Q. What do you mean he was in the basket?
A. He was in the basket. I don't know what he was looking for in the basket. But he was in the basket. He pulled out something blue like this, like a little bag. I wouldn't say it was a bag. It looked like something where, you know, you keep pencils.
Q. Pencil case?
A. Yeah, something like that.
Q. And had you seen that blue bag on top of the basket?
A. No, it wasn't on top of the basket. I didn't see that.
Q. As best you recall, from the time they broke into the apartment until this point of the story, do you have any sense of how long that was time-wise, how much time had gone by?
A. Like 20 minutes maybe. I'm not sure of the time but . . .
Q. Going back to when they came into the apartment, you said there was a bang, there was a bang, and then DEA, DEA search warrant?
A. Uh-huh.
Q. Do you remember hearing any words before the bangs?
A. No, there was no words. There was nothing. I didn't hear no words. I didn't hear no noises of them coming up the steps, because my dogs would have start barking right away. Like I only heard when they hit the door.
Q. In between the two bangs, you made it sound like bang, pause, bang. Do you remember hearing any words then?
A. No.
Q. And at this point the air-conditioner was off?
A. Yes.
Q. At any point did you — did anyone ask you whether they could search the apartment?
A. No.
Q. Okay. Do you remember anyone asking your husband?
A. No.
Q. Go ahead.
A. What I heard was my husband was in the living room and I was in the living room, and the one I guess they were calling Sarge, he took my husband into the room and I hear my husband get upset and I hear him say to my husband you need to sign this. And my husband is what is it? He's like permission for search warrant. My husband said get me out of here, you don't have a search warrant. You have a body warrant. Like they didn't have no search warrant. They wanted my husband to sign the paper after they already had, you know, went into the closets and went into that — my husband got upset. He was just like just get me out of here.
Q. At that point your husband is saying just get me out of here, did they stop looking around?
A. Yes.
Q. What happens next?
A. They take me — two agents take me downstairs.
Q. Are you still in cuffs?
A. Yes.
Q. They take me downstairs and they're like what car did you come in. And I said, I just came in this car. And I showed them, you know, the Honda that I came in. And he said — when I showed him the car he was like where's the secret compartment? And I'm like I don't know about no secret compartments. There's no secret compartments. He said there's a secret compartment in here and I'm going to find it. I said okay. So they unlocked the car, two agents went into the vehicle —
Q. Did you say go ahead and look into the car?
A. No, I never told them to search the car, because they asked me what car did I come in. So, you know, I'm thinking they brought me downstairs to see what car, you know, I came in. I don't know — I never been in a situation like that so I didn't know. So I showed them the vehicle. They open the car. I'm standing there. There's three agents, because there was one downstairs. Two of them get in the car, the other one takes everything out of the trunk, and the one is still yelling at me there's a secret compartment and I'm going to find it. And I'm like there is no secret compartment.
Q. Did you actually say that out loud?
A. Yes. He's yelling at me to tell him where the secret compartment is and I'm telling him there is no secret compartment. I said, what are you talking about? And he got like a little upset. And he was like, you know, don't play dumb with me. You know what I'm talking about. And I'm like — now by this time I'm crying, because he wants me to show him something that I don't know, you know, and I know there's nothing wrong with the car. I just brought the vehicle with me. The vehicle was with me. And he said to me if I open the trunk of this car and there's anything in here, you're going too. So they open the trunk and they start searching.
Q. Did you say go ahead and open the trunk?
A. No, I didn't tell them nothing. I didn't say anything. He said he was opening the car. They opened the vehicle, they went into the vehicle. They searched the vehicle. They found nothing in the vehicle beside like a bunch of like junk. You know, stuff that I keep like detergent and stuff like that in the trunk of the car, a shoe here or there. Some dog food. That's basically what it was. And he said to me, well, the car is gone.
Q. What did that mean?
A. That he was taking the car.
Q. Did he take the car?
A. He took the car. He said to me who owns it. By this time from him being so, you know, yelling, like by this time I wasn't scared anymore. I said to him the car is not even ours. We owe the vehicle. He was asking me who owned the car. And I said to him we owe the vehicle, like we're making payments on it. And he said, well, the car is mines. And that's it. They took me back upstairs.
Q. And they drove off with the car?
A. Yes.
Q. Did you ever get the car back?
A. I got the car back like maybe like a month — maybe a little bit longer than a month I got the vehicle back.
Q. And when you got it back, was the stuff still in it, the random shoe, dog food?
A. Yes.
Q. Was anything taken out of the car, do you know?
A. The only thing that I didn't find was like the registration and, you know, the proof of insurance card. They gave me a copy of it, but they never gave me the registration to the vehicle.
Q. Where's that car now, is it in Pennsylvania?
A. No, I have the vehicle with me.
Q. You used it to drive back to Connecticut to court?
A. Yes.
Q. At the point where they're taking you outside, do you know what's happening with your husband? Do you remember?
A. When they took me outside they had him inside when they took me downstairs. When they took me back upstairs, my husband was still upstairs.
Q. Did you ever see them remove him from the apartment?
A. Yes.
Q. Was it while all this stuff was going on with the car or was that over with?
A. No. After everything went on with the vehicle that they took me outside and they searched the vehicle, they took me back upstairs. And by the time I got upstairs maybe they were there like a couple of minutes and then they took my husband. And the officer took the cuffs off of me and they left.
Q. The agent that was searching the car — how many were searching the car?
A. Two.
Q. Did they give you any contact information about how to follow-up on the car?
A. No. The one agent said to me that your husband will be in court like around one o'clock. I don't remember exactly the time, but that day he would be in court. But they didn't give me no information on, you know, you can do this to get the vehicle back or call this place, this is where the vehicle will be at. Nothing.
Q. Do you remember the names of any of the agents that morning?
A. No.
Q. Do you remember the name of the agent that you dealt with later on trying to get the car?
A. I don't remember his name.
Q. Now, we were here about 10 days ago, 12 days ago for a hearing. At that point you were pretty sick, right?
A. Yes.
Q. What was going on?
A. I had an abscessed tooth.
Q. And I don't know if — were you able to recognize any of the other people that were here that day for court?
A. Yes.
Q. Do you remember anybody in particular?
A. The shorter gentleman with his hair like to the side. That really narrows it down. I'm sorry. I'm sorry. I'm sorry.
Q. Whatever your best recollection is you were about to say. Who do you recognize him as being?
A. One of the agents that was at the house.
Q. So just the one?
A. And the one that came in the suit. I'm sorry. You know, that night before I was in the hospital so I had medication and I was like really drowsy, but I remember, you know, seeing one or two of them.
MR. WILLSON: Your Honor, if I could just have a moment?
THE COURT: Sure.
Q. When did you get the dogs out of the bathroom?
A. After they left.
MR. WILLSON: I have nothing further, Your Honor.
THE COURT: Cross-examination.
MR. HALL: May I inquire, Your Honor?
THE COURT: You may.
CROSS-EXAMINATION
BY MR. HALL:
Q. Good morning.
A. Good morning.
Q. So you said, I think, that you and your husband had been having some difficulties or something?
A. Yes.
Q. So that you were residing primarily in Pennsylvania?
A. Yes.
Q. Reading?
A. Yes.
Q. And on July 15th, as of that morning when all these happened that you just described for the court, obviously you were in West Haven?
A. Yes.
Q. And you got to West Haven the day before that, is that fair to say?
A. Right.
Q. So you stayed in that apartment the night of the arrest, right?
A. Uh-huh.
Q. And then the night before that also?
A. Yes.
Q. And before that, what date — how far before that did you arrive in Connecticut?
A. The night that I stood there, I want to say this happened the 15th. I got there the 14th. I came in, it was like seven something in the evening.
Q. So that evening you got there at 7 p.m. and you stayed overnight there, right?
A. Yes.
Q. And nothing happened?
A. No.
Q. And then the next night is when all these things happened?
A. Yes.
THE COURT: Can I just really nail that down because now I'm a little confused.
The arrest happens on the 15th?
THE WITNESS: Yes.
THE COURT: You arrive at 7 p.m. on the evening of the 13th?
THE WITNESS: Yes.
THE COURT: Got it. Sorry, Mr. Hall.
MR. HALL: Thank you, Your Honor. That's helpful actually for all of us. BY MR. HALL:
Q. So before July 13th, when was the last time that you were in Connecticut?
A. I want to say like a week before that I had came out hoping to spend a couple of days with my husband and got into an argument and went back home.
Q. So did you stay over on that visit?
A. I was there just for one night.
Q. And where did you stay that night?
A. In the hotel.
Q. Did your husband stay with you?
A. Yes.
Q. And you had an argument?
A. And I left.
Q. And then you left.
Okay. Before that one day that you were in Connecticut with your husband, before that, when was the last time that you were in Connecticut?
A. I don't remember specific dates.
Q. A week, two weeks, a month, two months?
A. No. Maybe like a week or two.
Q. Before July 13th, had you ever stayed in that Washington Avenue apartment?
A. No.
Q. When did you learn that that apartment was available for you and your husband to stay in?
A. When I got to — when I got to — when I came into Connecticut that night.
Q. When you came to Connecticut that night, where did you come to?
A. Well, the day that I got there I came to the apartment. I went to the apartment. You know, I met up with my husband. We had gotten something to eat. And I was — we got something to eat that day, we went to Wal-Mart, and I thought we were going to the hotel.
Q. All right. Let me understand this. You said you got to Connecticut at about 7:00, p.m. on the 13th, right?
A. Uh-huh.
Q. So where did you meet up with your husband?
A. At my mother-in-law's.
Q. And where's that?
A. In New Haven.
Q. Do you know the address?
A. Blatchley.
THE COURT: Blatchley Avenue?
A. Yes. I'm not sure.
THE COURT: I don't want to put words in your mouth.
A. No, it was Blatchley Avenue.
Q. And that's the home of his mother?
A. Yes, my mother-in-law.
Q. So you got there around seven you say?
A. Yes.
Q. And after that you went and got something to eat?
A. Yes.
Q. Just the two of you?
A. Yes.
Q. Where did you go?
A. I want to say in West Haven when you're going to the beach there's a place there. Chuck's — what's it called — I don't know the name of it.
THE COURT: Chick's?
THE WITNESS: There you go.
THE COURT: Again, I don't want to put words in your mouth.
THE WITNESS: I'm sorry, I'm not from here. Again, I'm not from Connecticut.
Q. It's kind of a hot dog and fried seafood place?
A. Lobster roll. And then we went to Wal-Mart. And then that's when I thought we were going to the hotel, that's when I learned of the apartment.
Q. When you drove to your husband's mother's house from Pennsylvania —
A. Yes.
Q. — what were you driving?
A. 2010 Honda Accord.
Q. Is that the car that you said the agents took?
A. Yes.
Q. And to your knowledge, had that car been in Connecticut before?
A. It was there before because I had drove in it. When I was there the week before it was there.
Q. And between — now you're not sure when the time — withdrawn.
You came on the 13th?
A. Uh-huh.
Q. You think you came about a week before?
A. Uh-huh.
Q. Did you come in that car at that time too?
A. Yes.
Q. But in between those two days, that car was with you in Pennsylvania?
A. Yes.
Q. And then before that time around the 6th or so, maybe?
A. I'm not sure of the dates.
Q. Somewhere around there, right?
A. Uh-huh.
Q. Before that, the car was with you in Pennsylvania?
A. Yes.
Q. Was the car ever here in Connecticut with your husband?
A. No.
Q. Without you?
A. No, not without me.
Q. That was your car?
A. Yeah.
Q. You owed it, but —
A. Yeah.
MR. WILLSON: Your Honor, a belated objection. To say was it ever in Connecticut without her, there's no time frame on that.
THE COURT: It's overruled.
BY MR. HALL:
Q. I asked was it ever. I meant what I said. And she answered I think.
And did you drive, the time that you came on the 13th?
A. Uh-huh.
THE COURT: You've got to say yes or no, ma'am.
A. Yes.
Q. When you drove from Pennsylvania, did you have your three dogs with you?
A. Yes.
Q. So when you drove over to your husband's mother's house, the three dogs were in the car?
A. Yes.
Q. And when you went out to eat in West Haven, did you bring the dogs with you?
A. Yes.
Q. So they were in the car?
A. They were in the car.
Q. So while you ate they were out in the car?
A. Uh-huh.
Q. Did you go straight from Chick's, if that's what it was? Because there's another place with lobster rolls right near there that's better than Chick's, cost more, but it's better. But did you go straight to the apartment?
A. I had to stop at Wal-Mart.
Q. So you did stop at Wal-Mart. And the dogs were in the car?
A. Yes.
Q. Did your husband come in with you at Wal-Mart?
A. Yes.
Q. So you guys left the dogs in the car?
A. Uh-huh.
Q. And then did you go straight to the apartment from Wal-Mart?
A. Yes.
Q. Did you leave the dogs in the car?
A. No. The dogs came inside with me.
Q. And you had never seen this apartment before, is that right?
A. No.
Q. And you indicated that what you found upstairs was an air mattress?
A. Yes.
Q. Was there any other furniture?
A. A little maybe like a 23 inch little TV, plasma TV, and an air-conditioner.
Q. And the air-conditioner?
A. That's it.
Q. Nothing else there?
A. Nothing else.
Q. Okay. And the night that you spent there on the 13th was uneventful? Nothing happened?
A. No, nothing happened.
Q. Where did the dogs sleep that night?
A. They sleep with me, always.
Q. And nothing disturbed them?
A. No.
Q. Did you get up and turn the air-conditioner off that night?
A. Yes, because it gets cold.
Q. And the following day when you guys got up, what did you all do that day?
A. On the 14th?
Q. Yes.
A. On the 14th, we got up because the landlord was fixing the apartments downstairs and my dogs — he must have got there early, and my dogs got up, it was like seven maybe, seven something, they heard a noise and they started barking. We got up and took our shower, went to have breakfast.
Q. Did you go somewhere to have breakfast?
A. I don't know the name of the place, but I did.
Q. But you went somewhere?
A. Yes.
Q. You did not have food at the house, right?
A. No.
Q. Did you take the dogs?
A. No.
Q. Where did you put the dogs?
A. The dogs were in the apartment.
Q. So you left the dogs in the apartment?
A. Yes.
Q. And you went to someplace to get food?
A. Uh-huh.
Q. And you don't remember where?
A. Copely's, Cody's.
Q. Are you familiar with New Haven generally?
A. No.
Q. Cody's. And both of you went, you and your husband went?
A. Yes.
Q. And you both went in the Honda Accord?
A. Yes.
Q. And after going to Cody's, where did you go?
A. We took my mother-in-law some coffee. We went to my mother-in-law's house.
Q. On Blatchley?
A. Yes.
Q. And then where did you go?
A. We were there for a while.
Q. And then you left at some point, right?
A. Yeah, to C-Town.
Q. And that's a grocery store, right?
A. Yes.
Q. So the dogs are still at the apartment?
A. Yes.
Q. And you went to C-Town, and then where did you go?
A. We went to C-Town and came back, because we were cooking out outside of my mother-in-law's house.
Q. Is it fair to say that you spent most of the day at your mother-in-law's house?
A. Yes.
Q. And did you go — when you left your mother-in-law's house for the day, do you know what time you left, roughly?
A. No, I don't remember exactly.
Q. Did you have dinner there?
A. Yes.
Q. So early evening, would that be fair to say that you left?
A. Probably.
Q. And where did you go from your mother-in-law's house?
A. We went to the apartment.
Q. Directly?
A. Yes.
Q. And did you leave the apartment again that evening?
A. No.
Q. So when you got back the dogs were still there?
A. Yes.
Q. And that evening at the apartment — well, withdrawn.
When you were at your mother-in-law's house, did you have anything to drink like alcohol?
A. No.
Q. And when you went to the apartment afterwards for the evening, did you have anything to drink there?
A. No.
Q. Did your husband?
A. No.
Q. Had your husband had anything to drink at his mother's house?
A. No.
Q. Do you know what time you went to bed?
A. I don't remember the exact time, but my husband usually falls asleep before me.
Q. Before midnight would you say?
A. He definitely was asleep before midnight. I wasn't.
Q. When you say he falls asleep, would it be fair to say he falls asleep in the bed watching TV?
A. Yes.
Q. And you'd be there with him with the dogs?
A. Right.
Q. After he fell asleep, would you close up the apartment?
A. I double-check it. My husband's good with doing that as soon as we walk in.
Q. But turn off the lights before you went to bed?
A. Right.
Q. And the dogs would then be with you and your husband on the night on the 14th in that bedroom?
A. Yes.
Q. Now, the following morning you woke up you said to go to the bathroom?
A. Yes.
Q. And on that trip to the bathroom, you turned off the air-conditioner?
A. Yes.
Q. How long does it take you to get to the bathroom from the bedroom?
A. Maybe a distance from where I'm sitting at to the edge of this counter thing right there.
Q. Over here?
A. Probably, yeah.
Q. So like 20 feet, something like that?
A. Yes.
Q. A few steps, right?
A. Yes.
Q. If you had to get to the bathroom in a hurry, you could get there very quickly, right?
A. Yes.
Q. And, in fact, the apartment itself is rather small, isn't that so?
A. Yes.
Q. So to get from one room to another it's, again, a matter of a couple of steps?
A. Right.
Q. And then you said that — and then you went back to sleep, right?
A. Yes.
Q. And you did fall asleep?
A. Started dozing off, yes.
Q. But you hadn't completely fallen asleep, is that fair to say?
A. I wasn't in a deep sleep, no. I have problems sleeping. So I wasn't really in a deep sleep, but my eyes were closing, I was dozing off.
Q. It's fair to say that you were not wide awake at that point?
A. Yes.
Q. And is that the point at which you heard the banging?
A. Yes.
Q. And when you heard the banging, did you sit up in the bed?
A. It happened so fast I was just like started to come up, but by the time I started to sit up they were already in the apartment, you know.
Q. Now, when you told the Judge what happened before you said that there was a loud knock or bang, and then there was silence, right?
A. It was bang, bang.
Q. It was bang?
A. Bang.
Q. No noise in between the two bangs?
A. No noise.
Q. And is it your testimony that you only heard these guys, these agents who came into your apartment, you only heard them yell police with a warrant or whatever it was that they yelled, you only heard that after all the bangs were done?
A. Once they were in the apartment.
Q. That's when you heard them say that?
A. Yes.
Q. Now, you remember making an affidavit in this case, right?
A. Yes.
Q. And when you made the affidavit, was Mr. Willson there? When you signed the affidavit that you made, was Mr. Willson there?
A. I don't remember.
MR. WILLSON: Your Honor, the affidavit can speak for itself.
THE COURT: Don't read it. Don't do that. Just object. It's overruled. I want the questioning to continue.
A. I don't remember.
Q. Do you know where you were when you signed it?
A. I want to say in Pennsylvania.
Q. Would it be fair to say that he mailed you a copy of the affidavit or that someone did? Did you receive it in the mail?
A. I didn't receive it in the mail. I want to say maybe an email.
Q. An email?
A. Yes.
Q. So the first time that you saw the affidavit was when you received it as an email?
A. Yes.
Q. And before you saw that affidavit, did you have occasion to speak to anybody about it?
A. Yes.
Q. Did you understand the purpose of the affidavit?
A. He said to me it was just stating what had happened.
Q. Right. So did he ask you to tell him what happened?
A. Yes.
Q. And did you understand that what you were telling him was important?
A. Yes.
Q. This was important to your husband's case, right?
A. Right.
Q. And so when you told him what happened, did you use any notes or anything like that?
A. No.
Q. This was all right out of your memory, right?
A. Yes.
Q. But as you did it, did you try to tell him what happened as best you could remember it?
A. Yes.
Q. And were there points, without getting into exactly what he said to you, but were there points as you told him what happened where he asked you questions, follow-up questions?
A. Yes.
Q. Yes. And so he might ask for more detail on something or other?
A. Yes.
Q. Might he have asked you whether you're sure about a certain item?
A. He didn't say nothing to me about no item. He just, you know, if he would ask me a question like, you know, what was in the bedroom, you know, are you sure, something like that he would say, yes.
Q. So he would from time to time ask you to clarify what you were telling him?
A. Yes.
Q. Did you have an understanding that he was creating for you an affidavit from what you were telling him?
A. Yes.
Q. And was it your understanding that he was going to then send that affidavit to you so that you could sign it?
A. Yes.
Q. And that you would swear to the truth of everything that was in the affidavit?
A. Yes.
Q. So you wanted to make sure that it was right when you told him this stuff, right?
A. Right.
Q. And was this on the telephone?
A. When I spoke to him, yes.
Q. And how many times did you speak to him on the telephone?
A. A couple of times.
Q. You think two?
A. Two, three, yes.
Q. Two or three?
A. Yes.
Q. Do you recall how long these conversations were?
A. Maybe five, ten minutes, if that.
Q. So two or three conversations, five, ten minutes a piece?
A. Yes.
Q. Did you tell him, as best you could recall, everything that happened the night of the 15th and the morning of the 15th, you know, when all these things happened to you, in the first conversation that you had with him on the telephone?
A. Yes.
Q. And so in the second conversation, did he go back over what you had already told him?
A. He asked me, you know, questions, you know, like, oh, I forgot to ask you this, you know. Like, for example, like the door. Like I had explained to him that they had came in through the door that was in the living room that we seen in the pictures. And he asked me about the other door that's in the kitchen. That there's another entrance through the side. Stuff like that.
Q. But he gave you an opportunity to provide more information on the second conversation?
A. Basically what he was asking was the same questions that he asked me the first time.
Q. So as I said in the first place, you went back through it? You went back through the material in the affidavit?
A. Yes.
Q. And when you were finished, did he — well, withdrawn.
Did he read you what was in the affidavit at that point?
MR. WILLSON: Objection. At which point are we talking about?
MR. HALL: During the second conversation at any point.
MR. WILLSON: Objection, that's a compound question, during the second conversation or at any point.
MR. HALL: Excuse me.
THE COURT: Withdraw the question. Try one more time.
Q. At any point during the second conversation, did he read the affidavit to you?
A. No.
Q. So at that point you still hadn't seen it or heard what was in it?
A. No. He had said that he was going to send me, you know, the email. He said if I had any questions or anything to give him a call.
Q. And then after that second conversation, you may have had a third conversation?
A. Yeah. I told him that I received it.
Q. Let me stop you there. So after the second conversation, you received —
A. The email.
Q. The affidavit by email?
A. Yes.
Q. And did you read that affidavit?
A. Yes.
Q. And did it appear to you to be correct?
A. Yes.
Q. Did it appear to you to be complete?
A. Yes.
Q. And after that, did you speak to Mr. Willson about the contents of the affidavit that you had in front of you now?
A. Yes.
Q. How many times?
A. I spoke to him — because I had had a problem with my emails, told him that I had received the email and I had to go in front of a notary.
Q. But how many times did you speak to him by phone once you had a copy of the affidavit?
THE COURT: Up until today?
MR. HALL: Withdrawn. Fair enough.
Q. So you received a copy of the affidavit?
A. Uh-huh.
Q. Did you speak to him again on the telephone?
A. Yes.
Q. And what did you speak to him about?
A. He asked me if I received the email, and I told him yes. And he said to read over it. And he said to me that I needed to go to a notary to get it signed, you know, and I told him okay.
Q. So after you received the affidavit, did you make any changes to it?
A. No.
Q. So when you read it, it was complete and accurate?
A. Yes.
Q. And then you signed it in front of a notary in Pennsylvania?
A. Yes.
Q. Now, do you recall stating in your affidavit that at 5:47 —
A. Yes.
Q. — you awoke to a loud bang?
A. Yes.
Q. So based on what you swore to in your affidavit, you were asleep when the banging started, right?
A. I was dozing. If that's what you want to call it, sleeping. I was dozed off.
Q. Well, I'm asking because in your affidavit you said you awoke.
MR. WILLSON: Your Honor, I object.
THE COURT: One person at a time. Let Mr. Willson state his objection.
MR. WILLSON: She stated on direct, she stated on cross that she went back to bed, she dozed off.
THE WITNESS: I was dozing off.
THE COURT: Wait, wait. I have to rule on the objection, ma'am.
I'm going to overrule the objection. I understand the point. I'm going to overrule the objection.
Continue your questioning.
Q. So at 5:47 you were asleep and then woke up, right?
A. I wasn't in a deep sleep. I wasn't in a deep sleep, because I had been up to use the restroom. I wasn't in a deep sleep. Was I wide awake? No, I wasn't.
Q. How did you know it was 5:47?
A. Because I have a thing where I get up and the first thing I do is I look at my cell phone.
Q. And where was your cell phone?
A. Next to me.
Q. Where?
A. On the floor.
Q. So is it fair to say then when you heard this loud banging, the first thing you did was not to start to get up in bed as you just told the Judge, but was to reach over to the side of the mattress?
A. I looked — no — when I heard the banking — when I heard the banging I went. So when I looked, you know, my phone's right there on the floor. So I can see my phone. But by then, you know, it was like bang, bang. It was so fast. It was fast. You know, the two bangs were fast. It wasn't like I had enough time to be, okay, let me get up, the bangs were fast and they were in there. And when I looked, I seen my phone, I had it set up sitting up like that so I could see the time, and it was 5:47 in the morning.
Q. So when you woke up the bangings were in progress?
A. Yes. That's what woke me up. You know, that's what got me up, like completely up when I heard the bang.
Q. But until the bang that woke you up, you were asleep, right?
A. Okay. If that's what you want to say that I was sleeping.
Q. I don't want to say anything. I'm asking you.
A. I said I wasn't in a deep sleep, but I wasn't fully awake. So if he's going to call it sleeping, okay. You know, I'm just —
Q. Do you recall saying in your affidavit that after hearing those bangs you heard shouts of DEA, DEA, search warrant?
A. Yes.
Q. And do you recall stating in your affidavit that after that —
MR. WILLSON: Objection, that misstates what it says.
THE COURT: Don't say what it says. He's going to rephrase the question. So I'll sustain the objection. I'm going to let him rephrase the question. Don't comment further, please.
MR. WILLSON: Your Honor —
THE COURT: Don't comment further. Sit down.
MR. WILLSON: Well, I have another objection.
THE COURT: No. Sit down, Mr. Willson. I do not want you talking about the affidavit.
I'll sustain the objection. Please rephrase the question.
MR. HALL: Yes, Your Honor.
BY MR. HALL:
Q. Do you recall stating in your affidavit they banged on doors two times, breaking through and went into the apartment?
A. Yes.
Q. After you heard shouts DEA, DEA, search warrant —
MR. WILLSON: Objection, it mischaracterizes.
THE COURT: The objection's overruled. The question that was asked was simply after you heard search warrant. The question, so we're clear, does not relate to the affidavit. The question simply is after you heard search warrant. If you understand the question, you can answer it. If you don't understand the question, let him know that.
A. After the two bangs I heard the door was broken, I heard DEA, search warrant.
Q. And then you heard bangs after you heard DEA, search warrant?
A. No. There was no DEA — no voices, no noises were made until they were in the apartment.
Q. Then do you recall — I'm going to ask you again because I'm not really understanding. Do you recall stating in your affidavit that at 5:47, a.m. I awoke to loud banging?
A. Yes.
Q. Do you recall stating in your affidavit then I heard shouts of DEA, DEA, search warrant?
A. Uh-huh.
THE COURT: You've got to say yes or no, ma'am.
A. Yes.
Q. Do you recall stating they banged on doors two times breaking through and into the apartment?
A. Yes.
THE COURT: Did you say yes to that?
A. Yes.
Q. And is that true?
A. Yes. But I heard DEA after the two bangs, they were already in the apartment.
Q. I'm just asking you if what you said in your affidavit was true?
A. Yes, it is.
Q. You said that one of the guys had a long gun?
A. Yes.
Q. Can you describe it?
A. It was just a big gun and it had like a little light on it.
Q. What color was the light?
A. I don't know, red, blue. I don't remember. Red or blue.
Q. Could it have been red?
A. Could have been.
Q. Could have been blue?
A. It could have been.
Q. Could it have been white?
A. No.
Q. It was red or blue?
A. Yes.
Q. And do you recall saying in your affidavit that they came racing into the room with their guns drawn and laser sightings pointing around the room?
A. Yes.
Q. And that's true, right?
A. Yes.
Q. And why did you call those lights laser sightings?
A. Because that's what it is, they're laser lights. It's like one of those little laser lights.
Q. Have you ever used a firearm yourself?
A. Yes.
Q. Have you ever used a firearm with a laser sight?
A. No.
Q. Have you ever seen a firearm with a laser sight for real aside from this one maybe?
A. No.
Q. So how did you know they were lasers?
A. I watch a lot of movies, action movies, you know, that's how I know.
Q. Now, once the men were in your bedroom where you and your husband were, you said that they got you out of bed, right?
A. Yes.
Q. They put you on the floor?
A. Yes.
Q. And they cuffed you?
A. Yes.
Q. And then they brought you into the living room, is that right?
A. Yes.
Q. And you said that they did the same with your husband?
A. Yes.
Q. So there was no one left in the bedroom, right?
A. No. Just the two officers.
THE COURT: Give me one second, please. Give me one second, I'm sorry.
We'll take a recess in about on two minutes but go ahead, you can keep going.
MR. HALL: Thank you.
Q. So they had you and your husband both in the living room?
A. Yes.
Q. Where was Carlos?
A. They had him in the doorway.
Q. What doorway?
A. In the doorway to the room. In the living room — I'm sorry. In the living room you see in the pictures that they show you, when you show me the picture and I said straight is the bedroom, right off of that to the left there's a door there and that's the other bedroom. Like literally you walk out and like turn like that and that's the other bedroom from the bedroom we were at. He was there.
Q. So Carlos would be on his way into the kitchen basically?
A. No, that would be the living room.
Q. I'm sorry, the living room.
These are all really close together?
A. Yes, that's right.
Q. You're in the living room and you can take three steps and you're in the kitchen, right?
A. Yes.
THE COURT: Can I clarify just for my own mind. So as I understand it, officers brought you and your husband from the bedroom into the living room. At that point you saw Carlos in the doorway between the other bedroom and the living room.
THE WITNESS: Yes.
THE COURT: All right. We're going to take our recess. 15 minutes.
(Recess.)
THE COURT: Be seated, please.
Mr. Hall, cross-examination, please.
CROSS-EXAMINATION (Continued)
BY MR. HALL:
Q. Showing you Defense Exhibit B. And that's a view of the inside of the apartment, right?
A. Yes.
Q. And after you — well, when they cuffed you, when they put handcuffs on you, you were on the floor, is that right?
A. Yes.
Q. Did they cuff you in front of you or behind your back?
A. Behind my back.
Q. And you said earlier that they led you outside in cuffs?
A. Yes.
Q. So between the time they cuffed you in the bedroom and when you got outside, all the way outside of the apartment, you were cuffed the whole time?
A. Yes.
Q. And when did they release you?
A. After we came from downstairs from them being — from us being downstairs where the car was, they took me back upstairs and then they took the handcuffs off of me upstairs. That's when they led my husband out.
Q. You said at one point — well, withdrawn.
When you saw the police officer bring a dog in?
A. Yes.
Q. Were you in handcuffs or not?
A. Yes.
Q. So you had not gone outside yet, right?
A. No.
Q. And you said that your dogs, one of your dogs, reacted to the police dog?
A. Yes.
Q. Kind of went over to it?
A. Yes.
Q. And you said you gathered them up and put them in the bathroom?
A. Yes.
Q. While you had your hands cuffed behind your back?
A. That's when one of the agents helped me, then he put the handcuffs here in the front. He put the handcuffs in the front. Then he left them like that, you know, the rest of the time. So I can grab my dogs so I could put help in the bathroom.
Q. You gathered them up and put them in the bathroom?
A. Yes.
THE COURT: Can I just get that. So first you were cuffed behind your back?
THE WITNESS: Yes.
THE COURT: Then the German Shepherd comes?
THE WITNESS: Uh-huh.
THE COURT: Your dog is approaching?
THE WITNESS: Yes.
THE COURT: Then the agents take or an agent takes off the cuffs and recuffs you in front?
THE WITNESS: He took one cuff off and put it here, and I grabbed the dogs and I put them in the bathroom and I shut down the door.
THE COURT: And then you were recuffed?
THE WITNESS: Yeah, I was recuffed. And I was right there in the living room.
THE COURT: At that point the cuffs were behind your back or in front?
THE WITNESS: No. After I put the dogs in the restroom, the cuffs, they left them in the front.
THE COURT: Got it. Thank you.
Go ahead, Mr. Hall.
Q. They stayed in the front?
A. Yes.
Q. Now, showing you Defense Exhibit B. You said that after you were cuffed you were led out of the bedroom, right?
A. Yes.
Q. And were you led to the area that's over to the right of this photograph?
A. Yes, to the wall, right behind.
Q. Would you be basically standing almost in the doorway that they had breached?
A. No. Over more, because I could see directly into the room.
Q. Over more which way, looking at the photograph?
A. If we're looking at the photograph, just say — the picture that we have here, it's right in front of me. There's a wall there that has two windows and there's another wall there, and I was on that wall.
MR. HALL: If I could just explore this for a moment, Judge?
THE COURT: Yes, go ahead.
Q. Using this photograph as your point of reference. Okay?
A. Yes.
Q. The door that they came in through is to the right, correct?
A. Yes.
Q. Were you standing over in this area to the right?
A. No.
Q. Were you back a ways, almost as though you had taken this photograph?
A. Right.
Q. So you'd be staring directly at that window, is that right?
A. Right.
Q. So you're staring into the bedroom or you could be if you wanted to?
A. Right.
Q. Staring into the bedroom you could see the window?
A. Yes.
MR. HALL: Can I get this marked?
THE COURT: Go ahead. This would be Government's 12 for ID for the moment.
Q. Showing you Government's Exhibit 12 for identification. Do you recognize that?
A. Yes.
Q. Is that the interior of the third floor apartment at 112 Washington?
A. Yes.
Q. And does this show the door that the agents came in through?
A. Yes.
Q. So does this photograph show the area where you were standing that you were just trying to describe to me right now?
A. No.
Q. And you were farther — using the photograph here, Government's Exhibit 12 for identification — I'll offer it, Judge.
THE COURT: Is there any objection to 12 for ID?
MR. WILLSON: No, Your Honor. I actually handed it to Mr. Hall.
THE COURT: That will be full, Government's 12.
(Whereupon, Government's Exhibit Number 12 was marked in full.)
THE COURT: Go ahead.
Q. You would have been standing to the left side of this photograph, is that right?
A. Little bit to the left but, like I keep saying, there's a wall. The living room, it's a box, the shape of a box. When the door's right here, that's the windows that you can see in the picture that you just took off. And then there's another wall, and I'm against that wall there. I'm sorry.
Q. It's okay. So going back to Defendant's Exhibit B, the windows that you're talking about would be all the way to the right of that picture, right?
A. Yes.
Q. And the wall that you're talking about would be — if you walked in the front door as depicted in Defense Exhibit B, would you be looking at the wall that you're talking about?
A. Yes.
Q. So your back would be to that wall, is that fair to say?
A. Yes.
Q. And your husband was there also?
A. On the other wall.
Q. Let's stick with this one. So we got this wall, your back is against it. Where's Carlos?
A. He's like in the doorway.
Q. Of the other bedroom?
A. Of the other bedroom, yes.
Q. And standing where you were, that would be sort of off to your left and in front of you?
A. Yes.
THE COURT: Can I just ask. Is that doorway something we see in the lower left-hand corner?
THE WITNESS: Yes.
THE COURT: Sorry to interrupt you.
MR. HALL: That's perfect, Your Honor.
Q. So that's where Carlos was?
A. Yes.
Q. And you testified earlier that you saw one of the officers go into the closet in the bedroom?
A. Yes.
Q. And reach into the closet?
A. When I looked — the door was closed, and he opened the door to the closet.
Q. From where you were standing, as you just showed us using Exhibit B, you could see through the doorway?
A. Yes.
Q. And the officer was inside the room?
A. Yes.
Q. And the officer was behind the door and to the wall on the right?
A. No. You see where the door's open, if you walk a couple foot steps more the closet's right there.
Q. On the right?
A. Yes, on the right.
Q. And in this photograph it's not visible, is it?
A. No.
Q. Could you see the closet door?
A. I could see because I was standing —
Q. Could you see the closet door from where you were standing?
A. Yes.
Q. You could. Okay. And is it your testimony — withdrawn.
Is it your testimony then that you were standing in such a way that you had an angle so that you could see through the door and to the right?
A. Yes. I was standing — there's like the doorway to go to the kitchen. From the wall that we already narrowed it down, that wall, there's a doorway there. So I was right there. So I could see directly straight into the room.
Q. Straight into the room. But I'm asking you could you see the wall that the closet was on?
A. Yes. It's right there on the right-hand side.
Q. On the right-hand side?
A. Yes.
Q. In this picture here, Exhibit B, you can't see the wall, right?
A. No. But if you push the door back, if you would push the door back, all the way back, you could see.
Q. You could see what?
A. You could see — because the closet sits back just a tiny built. If you were to push the door back completely, like just say the door handle's hitting the wall, you could see.
Q. Hit the door of the closet?
A. No, the door of the closets are not like that. The doors of the closets are like sliding doors.
Q. So this door here in Exhibit B opens farther than is shown?
A. Yes, it does.
Q. You can open it farther?
A. A little bit farther, yes.
Q. But you were standing in such a way that you had an angle so that you could see to the right of the room and see the closet, is that what you're saying?
A. Where I'm standing from because, the door was open completely, I could see. I could see where the agent was. I can see. He was right directly in front of me. I could see. I could see the door to the closet.
Q. Okay. So you could see to the right of the open bedroom door from where you're standing?
A. Right.
Q. You also said that at some point you saw one of the officers doing something in the laundry basket?
A. Yes.
Q. Is it your testimony that from where you were standing, so that you could see the right side wall in that room, you could also see around the corner to the left? I just want to ask you that, is that what you're saying?
A. No, that's not what I'm saying. That's not what I'm saying.
Q. Are you saying that you could see the laundry basket from where you were standing?
A. That's the only thing that was in there. In that corner. There was nothing else there.
Q. Excuse me. Are you saying that you could see the laundry basket from where you were standing?
A. I couldn't see the laundry basket, no.
THE COURT: You could or not know?
THE WITNESS: I could not see the basket.
THE COURT: Okay. Wait for a question now. He's going to ask another question.
Q. So you couldn't see the basket?
A. No.
Q. So when you said that you saw an officer going through the basket, you could not see the basket, right?
A. No.
Q. You could see the officer?
A. Uh-huh.
Q. Was he kneeling down?
A. Yes.
Q. Could you see what he was doing?
A. I seen his hands moving. There's nothing else there but the basket.
Q. His hands were in the basket, right?
A. Yes.
Q. And you say you saw his hands moving?
A. No, no, no. I seen his hands moving because where he's at, he's like kneeling down like this. I see his body and the basket's right here. This is the doorway and the basket's right there. There's nothing else there in the apartment.
Q. So you assume that he was doing something in the basket because the basket was the only thing there, right?
A. I didn't assume that. I knew he was in the basket because that's where he pulled my husband's pants from.
Q. You saw him go into the basket to get your husband's pants, is that right?
A. That's where my husband's pants were at.
Q. So you saw him at the laundry basket?
A. Uh-huh.
Q. Couldn't see exactly what he was doing, right?
THE COURT: Is that yes or no?
A. Yes.
Q. And he came up with the pants?
A. Yes.
Q. Then he shook the pants?
A. Yes.
Q. Stuff came out of them?
A. Yes.
Q. Was that in the kitchen or in the bedroom?
A. No, in the bedroom.
Q. Was it right in the doorway?
A. Yes. The basket was right there. Like, it's right there. If you turn and the basket is right there at the doorway.
Q. The basket is right around the corner from the doorway, right?
A. Yes.
Q. He shakes the pant in the doorway and stuff falls out of it?
A. Yes.
Q. I thought you testified that somebody went back to the basket, is that right? Did you see an officer approach that basket after the stuff came out of the pants?
A. When the money came out of the pants that he shook them he said, look, Sarge. And then the other one went towards the basket.
Q. And you were still standing in the same —
A. I'm still standing in the same place. The agents are standing next to me. I'm handcuffed. I can't move anywhere.
Q. And the guy with the pants is in the doorway, is that fair to say?
A. He wasn't in the doorway. He was like this — just say this is the doorway, he's right there. He's right there.
Q. Would that be inside the room slightly and a little bit to the left?
A. When he stood up — when he stood up he was like this. When he stood up — this is the doorway right here. When he stood up and he stepped back, that's when he grabbed the pants and he started shaking them.
Q. So he was in the doorway and you could clearly see him?
MR. WILLSON: Objection. He's already said he wasn't in the doorway although it sounds like he's close. Rather than characterize the testimony.
THE COURT: I'll overrule it. I think it's accurate, but I'll overrule it. Go ahead, you can ask the question.
Q. So he was not right in the doorway, he was a little bit in the room, is that fair to say?
A. Yes, he was in the room.
Q. But he was framed by the doorway, is that fair to say? He's standing — I'm trying to understand where he was when he shook the pants.
A. He was in the room. Like right in the room. This is the doorway and this is the doorway and I'm here. From here to here. Like he's in the room. He's not standing like this is the doorway, you know.
Q. He's not standing in the doorway, he's in the bedroom?
A. Right.
Q. But looking at him from where you were standing, you saw him through the doorway?
A. Yes.
Q. Right there in front of you through the doorway?
A. Yes.
Q. And where's the other one?
A. He's in the room.
Q. Where in the room?
A. I seen him there. I seen, you know, the officer that got the pants to shake. The other one was in the room. Must have been off some like, but he was in the room. I didn't see him right there.
Q. So what did you see — now, that officer, did — withdrawn. Withdrawn.
The guy with the pants, the officer with the pants, after he shook them out, did you see him go back to the basket?
A. He went back into the room to pick up the money that was on the floor.
Q. And your testimony is there was nothing but money?
A. On the floor, yes. That's what fell out of my husband's pants.
Q. That's what you saw?
A. Yes. And change.
Q. You didn't see a little black bag?
A. No. I didn't see that fall out.
Q. And you didn't see any packaged heroin?
THE COURT: Pack of what?
Q. Packaged heroin.
A. I never seen drugs in there.
Q. Have you ever seen packaged heroin?
A. No.
Q. No?
A. No.
Q. So did you see anybody approach the laundry basket after the pants were shaken?
A. The officer that was in the room.
Q. What did you see?
A. He was in the room. When the agent shook the pants that that fell out, the money fell out and stuff, I seen the other one there, that's when he said to the Sarge, look, Sarge, you know. And then from there the other one bent down, picked something up, but I didn't notice what it was, and that's when he said to me, he started asking me about the car.
Q. So when you say that — you remember stating in your affidavit I saw them start to search the basket as they were removing me and my husband from the bedroom?
A. Yes.
Q. Who did you see start to search the basket?
A. The agent with the ski mask on, you know, because one had a ski mask on.
Q. I thought you said all of them did.
A. No, not all of them.
Q. Just one?
A. That was the one with the real big gun. And another one that was downstairs when they took me downstairs.
Q. So the one that was in the room with the big gun with the mask, you saw him search the basket?
A. Uh-huh.
Q. Where were you standing when that happened?
A. I was coming out of the room. When he approached the basket — when he approached the basket because he noticed what my husband had on was like, you know, like pajama shorts, real shorts and a tank top. He approached the basket. That's when he handcuffed me, that's when he was walking out.
Q. Correct me if I'm wrong, but I thought you testified earlier that you were handcuffed before you were led out of the bedroom, right?
A. Yes.
Q. And you were put in the kitchen or the living room against that wall that we talked about a lot in Exhibit B, right? Right?
A. Yes.
Q. And it was after that that you saw someone searching the basket, is that right?
A. When they — they led me out of the room first. They had my husband was coming out, like they would bring him out, and I seen one of the agents, you know, my husband's pants were there.
Q. Right. You said that you were at that wall and you saw through the doorway one of the agents kneel down in front of where you knew the basket to be?
A. Right.
Q. You didn't see what he did in the basket?
A. No.
Q. But he came up with the pants?
A. Right.
Q. Which you knew were in the basket, right?
A. Right.
Q. You had seen them in the basket, right? Did you put them there?
A. No, my husband did.
Q. He rolls up his pants and puts them where he wants to put them, right?
A. Yes.
Q. So you saw that officer — you didn't see him take it off the basket, but you saw him shake the pants out, right?
THE COURT: Is that a yes?
A. Yes.
Q. And after that you're saying — tell me, is it your testimony that you saw someone search the basket?
A. The other agent went into the basket. There's no other reason for you to kneel down there. There's nothing else there.
Q. Excuse me. I'm asking you what you saw.
A. I told you what I saw. I saw the one agent grab the pants, shook them out. Then he yelled look, Sarge, you know, the money's on the floor. And then the other one came and went in the basket. Something fell. And then I'm still standing there. And we were all standing in the living room by then.
Q. And what I'm asking you is how do you know that anyone else went into the basket if you couldn't see the basket from where you were standing?
A. What do you think he would have been doing standing in the corner? There's nothing there. It's different when you visit someone and they have a lot of furniture. There was a basket, an air mattress, and a TV. There's nothing else there.
Q. I would have to assume, because I wouldn't be able to see.
A. But I'm saying there was nothing else there. There's nothing else, you know, there. It's just the basket, the air mattress, and the TV. That's it.
Q. I get it. But are you saying that you did or did not actually see someone —
A. I seen him go toward the basket. The basket was there.
Q. Did you see anyone searching through the basket?
A. The one agent that took my husband's pants. The agent that took my husband's pants.
Q. And he took the pants off what you said was the top of the basket, right?
A. The top of the basket. It was in the basket.
Q. And then shook them out?
A. Shook it out.
Q. But after that, did you see anyone go through that basket?
A. The other agent came towards where the basket was at and kneeled down there.
Q. Yes. And did you see him go through the basket?
A. I seen him at the basket. That's where I seen him.
Q. Did you see him go through the basket? Is that a no?
A. No.
Q. Thank you. Now, you said that after all that happened they brought the drug dog into that room?
A. Yes.
Q. Do you recall saying in your affidavit about the dog, it did not leave the living room?
A. It went into the — the officer that came in — the agent that came in with the dog, he went into the room.
THE COURT: Which room?
A. Into the bedroom we were at. And if you would have pushed that door back a little more, you could see the doors to the closet. He went there — that's where I seen him standing. He was like this with the dog and the other hand he went like this. I know, I was looking straight at him.
Q. You told the Judge earlier that one of them brought a police dog into the bedroom?
A. Uh-huh.
THE COURT: Is that a yes?
A. Yes.
Q. Do you recall stating in your affidavit about the dog, the police dog?
A. Yes.
Q. It did not leave the living room?
A. No. The dog went into the room.
Q. So you were mistaken in your affidavit, is that fair to say?
A. The dog went into the room because, like I said earlier, he went into the room and the officer opened the closet door, he found something small like this, which was marijuana, and he threw it on the floor and he kept telling the dog to smell it.
Q. It's not true that the dog did not leave the living room, right?
A. The dog went into the room.
Q. Into the bedroom?
A. Yes.
Q. You didn't mention in your affidavit what you told the Judge this morning about your three little dogs being there. Why not?
A. What, that my dogs were there?
Q. Yes.
A. I don't know.
Q. You don't know?
A. I don't know. I didn't tell him about the dogs.
They didn't ask me. They asked me who was there. When they asked me who was there, I said me, my husband, and Carlos.
Q. No, no.
A. Is that what you're saying?
Q. No. When you made your affidavit, you didn't mention your three little dogs were there. That's right, right?
A. Right.
Q. You didn't mention that one of your dogs had kind of an issue with the police dog?
A. Right.
Q. You didn't mention, did you, that you were recuffed with your hands in front of you?
MR. WILLSON: Objection. Are we talking about in the affidavit or in preparation for the affidavit?
MR. HALL: All in the affidavit.
MR. WILLSON: Just about what's in the affidavit. Okay.
Q. You didn't mention that you got recuffed with your hands in front of you so you could take care of your dogs, right, that wasn't in your affidavit?
A. No.
Q. And in your affidavit you didn't say that the police dog went into the bedroom, right?
A. Right. Yes.
Q. And you didn't say in your affidavit that you couldn't actually see anybody searching through the laundry basket, right?
A. Excuse me.
Q. You did not say in your affidavit that you could not see anybody searching through the laundry basket, right?
A. No.
Q. You did not?
A. No.
Q. The last time you were here was for a hearing in this case, right, last time you were in this courtroom?
A. Yes.
Q. Between that time and today, did you discuss your affidavit with anybody?
A. No.
Q. Nobody?
A. No.
Q. Didn't discuss it with Mr. Willson?
A. No.
Q. Not once?
A. No.
Q. After you received the affidavit from Mr. Willson by email, did you discuss that affidavit with anybody?
A. No. I'm sorry, no.
MR. WILLSON: Is that other than me or?
THE COURT: I think the question was anybody. The question was: After you received the affidavit from Mr. Willson by email, did you discuss that affidavit with anybody? And your answer was no. I'm sorry, No. Are you satisfied with that answer?
THE WITNESS: No, just the day that he sent it, that Mr. Willson sent it to me, you know, we spoke about that.
Q. Other than Mr. Willson, after you received that affidavit from Mr. Willson, did you discuss it with anybody except Mr. Willson?
A. No.
Q. You never discussed it with your husband?
A. No.
MR. WILLSON: Objection, Your Honor, to the extent there's a spousal privilege, I don't know that this circumstances would waive the conversation.
THE COURT: She said no.
MR. HALL: That was the question. Thank you.
MR. WILLSON: Before we go down that road.
Q. And after the hearing last time we were here, I know you were sick so you really — I'm glad you're better. Did you discuss what happened at the hearing with your husband?
A. No. I'm assuming I wasn't allowed to know anything, because they didn't let me in the courtroom.
Q. So no?
A. No.
Q. Did you discuss what happened here last time with Mr. Willson?
A. No.
Q. And you didn't say in your affidavit, did you, anything about there being marijuana in the apartment?
A. No.
Q. And you didn't say in your affidavit, did you, anything about a police officer sweeping marijuana off a shelf so it went on the floor?
A. I didn't say nothing. I didn't use no words about sweeping. I seen him open the closet, reach like that, and then he threw, you know — I know it's marijuana now. I didn't know it was marijuana then.
Q. How do you know it's marijuana now?
A. Because you just — we were talking about it here.
Q. I think you brought it up on direct.
A. Right. When the — exactly. When the officers came in and he took the dog, he went into the room. He went like that. I didn't know that the marijuana was there. I didn't know that that was marijuana. You understand? I didn't know what he had thrown on the floor.
Q. Then why did you describe it as marijuana?
A. Because then the officer said something. The officer said to me and asking the money, when we were downstairs he kept asking me where's the stash box. Is there marijuana, is there drugs, is there money in the car too. He kept asking me the same thing.
Q. Why did you decide that whatever he did that you didn't see him do in the closet?
A. What do you mean I didn't see him do? I did see him reach his hand into the closet.
Q. You saw his hand in the closet?
A. I seen his hand go into the closet.
Q. You saw his hand inside the closet? You saw his hand?
A. Yes.
Q. From where you were standing?
A. Yes.
Q. Okay. And you saw him remove something?
A. Right. And throw it on the floor.
Q. Throw it on the floor. And instruct the dog to smell it or something?
A. Uh-huh.
Q. And you told the Judge that was marijuana?
A. Uh-huh.
Q. How do you know that?
A. Because when the officers took me downstairs — when the officer took me downstairs he said to me is there drugs in this car. If there's drugs in this car, marijuana, do you smoke — he asked me too, he asked me if I do drugs. And I said, no, I don't do no drugs. I said I drink occasionally. He was asking me questions like that. And he was like, well, you're sure you don't smoke marijuana because we have, you know, he kept asking me. And I told him no. I said why do you keep asking me. And he's like there's marijuana. Are you telling me you didn't see the marijuana? No, I didn't see it. My stuff was still, you know, in my bag.
Q. Did anybody go through your bag?
A. No, not my bag.
Q. Why did you decide that whatever the officer said —
A. Maybe I shouldn't have believed him then.
Q. Are you saying that the officer told you —
A. The officer said to me downstairs is there more marihuana. And I said, what are you talking about. He kept saying about the drugs. He said we found marijuana. You know you have the good cop and the bad cop. Well, of course the bad cop was telling me don't be dumb, you know what we found.
Q. So your testimony is that you learned that there had been marijuana in the closet —
A. When I went downstairs.
Q. From the police officers?
A. When I went downstairs. That's why he was asking me if there was marijuana or drugs in the car.
Q. But you're saying that that's how you learned about it?
A. Yes, that's how I found out that's what it was. MR. HALL: I don't have anything further, Your Honor. THE COURT: Is there any redirect?
MR. WILLSON: Just a bit, Your Honor.
THE COURT: Before you proceed, just housekeeping. Did we ever get a signed affidavit? I know originally it was unsigned because you were rushing to get the motion filed. I don't know if you actually filed the signed affidavit.
MR. WILLSON: Your Honor, my recollection is that I did. And if I didn't, I certainly can correct that.
THE COURT: Do you have an extra one for me? It's on the docket, Dan? Okay. Then forget it.
MR. WILLSON: I think I filed it.
MR. HALL: I have the one that's on the docket because I printed it out from the docket and it's not a signed affidavit.
THE COURT: The one that's attached to the motion is not signed and that was indicated in the brief.
Dan, can you just check the docket for me.
You can proceed, Mr. Willson, we'll take it up later.
REDIRECT EXAMINATION
BY MR. WILLSON:
Q. Mrs. Vasquez, just a couple of questions. You had testified during cross-examination about how you had been awoken the first morning by the landlord and a lot of banging?
A. Right.
Q. When you woke up the second morning, was that the first thing to come to mind?
A. I thought it might have been, you know, like the landlord fixing the apartments. You know, the whole building was empty.
Q. Is that why you checked your clock, to see what time this crazy landlord was starting construction?
A. I got up to use the restroom. And when all the stuff went on, I remember looking over and that's what it was.
Q. About your dogs. If someone just knocks at the door, do the dogs react?
A. My dogs react to a car door slamming, yes.
Q. How do you they react if the car door's slamming?
A. They go crazy. They start barking. Any noise.
MR. WILLSON: If I could just have a second?
THE COURT: Yes.
MR. WILLSON: Nothing further, Your Honor.
THE COURT: You can step down.
MR. WILLSON: Your Honor, it's okay if she stays in the courtroom at this point?
THE COURT: Yes. So as I indicated last time — and, Dan, we do have the signed affidavit on the docket?
THE CLERK: Yes.
THE COURT: As I indicated last time, we'd have some argument on the cases. I've read them. I don't really have a lot of questions, to be honest with you. I asked my law clerk to email you one case from the Second Circuit called Weaver, and there's a case from the First Circuit — I think there's actually two cases from the First Circuit that seem to point the other way. And neither of those cases are cited in the briefs as I recall. So I wanted to at least give counsel a chance to address those cases.
Mr. Willson, would you like to start?
MR. WILLSON: Sure, Your Honor. I had a chance to look at Weaver which is the D.C. case, Pelletier from the First Circuit. There's another case I think called Jones that might be the other one. And I have to agree they definitely go in sort of opposite directions. The one thing I noticed about Pelletier in particular was that it involved the service of a warrant, I think on a parolee. And no matter what circuit you're in, I think it's generally understood that parolees have a lesser expectation of privacy in their residences, in their cars, whatever it is that's about to be searched. So I think that's an important factor. Obviously, I like the Weaver case less. I don't think that's a surprise. But I think the reason why it's more important here is because of the timing of the events.
When we had, I believe it was Agent Bornstein (sic) on the stand, he made some comment that I tried to follow up on about how Mr. Vasquez was sort of acting like anyone ordinarily would act at six in the morning or something like that line, I'm paraphrasing. And I tried to follow-up on it with the point being that if we're going to have searches happen at 6:00 in the morning, that's a lot different than a search that's done at 2:00, and it should create a different set of expectations.
Now, first of all, there's no search warrant. There's no dispute about that here. There's only an arrest warrant which is probably the reason why I'm able to get away from Hudson and Acosta and really have this, and a strong reason for why we filed the motion. But when we look at Weaver, and trying to balance our expectations of privacy, how quickly can the law enforcement come in the door when they have an arrest warrant, there has to be some consideration given for the fact that these warrants are being executed at 5:47, 6:00, a.m., whatever the exact time might be, that when the door is knocked on, that even if there was an announcement here, which we dispute, but even if there was, there still has to be a reasonable period of time that, frankly, is going to have to be longer if we're going to allow people to bust down the door at 6:00 in the morning just because they don't get a response.
You know, it's July 15th in this story. It's not surprising that people are not dressed fully in a way to go out into the world. So that's another factor to add into the analysis. And I think a reason why I think if this was in the D.C. Circuit, I'd be feeling supremely confident about my chances. Now, from the research I've done, I don't see anything so far from the 2nd Circuit that talks specifically about this distinction. Maybe this case might wind up being that. I think Your Honor has a decision to make when it comes to that. But I have a lot of say about the facts and the stuff we heard, but I don't know if you want to hear about that now.
THE COURT: it's very fresh. But if you want to emphasize a few points, go ahead.
MR. WILLSON: When I think about this situation here, I'm brought to a Dagwood sandwich, which is the comic strip Blondie — I don't know if Your Honor is familiar with it — Dagwood is the husband which is usually the focus, and he makes these sandwiches that are ridiculously filled with stuff, all sort of things. This is a suppression hearing where I think there are so many issues that I have this kind of sandwich and reasons for the Court to be able to suppress the narcotics that were found and anything else that was found.
First of all, we have the entry into the apartment. In the arrest report that was admitted into evidence last time, there is no discussion about the announcement. Quite frankly, in my review of the case and now preparing it when things initially came in, that's the first thing that made me think a motion to suppress is necessary here. It talks about they entered the open door of the common stairwell, they knocked on the door, there was no response. Trooper Walsh heard movement. The door was then forcibly opened. There's no mention of, hey, it's the police, hey, we have a warrant, whatever type of warrant they might have referenced. That announcement is critical to the case and to their ability to come in the door in that situation or else, you know, frankly, if they want to protect themselves, that's one of the ways they're supposed to do it. So that way someone doesn't think their home is just being invaded by some random person they can defend themselves against. That's a critical part of the case.
Mr. Hall, I think as expected, spent a lot of time in the affidavit about trying to highlight things that might have been a bit inconsistent today from what's in the affidavit, like the location of the dog when the stuff was taken off the shelf right near the end. I think if we're going to start weighing papers against testimony, that report, which the agent is bound to write based on all the information that he has, he has to include all the important things, if he files a false report, he himself could be prosecuted. It was checked over by a supervisor. The supervisor didn't testify, but I think we can all fairly assume the supervisor knows that an announcement is important. The fact that that's omitted there is significant. So that's sort of the first part of the sandwich here. It's all those things about the knock and announce.
Now, let's say that there was an announcement. Another layer of the sandwich is what was the period of time between the knock and the entry. We heard from two agents about that. I'm not going to talk about Mrs. Vasquez's testimony because that obviously is so fresh.
The two agents, my recollection is that one said, well, it was about 10 to 20 seconds. The second one I want to say said about a minute.
THE COURT: Less than a minute.
MR. WILLSON: Less than a minute. Okay. And then Agent Bornstein (sic) said he wasn't in the stairwell so he really, frankly, doesn't know. So let's take the 10 to 20 seconds. There's law out there, some cases I had in a footnote that said 5 seconds isn't enough. I think this is one of those things where we get into the context of the situation. If we're going to knock on a door at 6:00, a.m. or 5:47, a.m., whenever it is exactly, is the Court going to make a legal decision, frankly, that 10 seconds is a reasonable period of time to wait. So I think that's another part of how it works out.
Another aspect of this case is, frankly, there's a lot of credibility issues going on here, which makes me wonder, and probably going to suggest that a transcript needs to be obtained in order to really weigh things out, because I'm not going to tell you that my memory's perfect, but I'm also going to suggest that no one's in the room is.
The first law enforcement officer, he didn't seem to really remember a lot of stuff. He thought that there were three of them in the stairwell. Agent Bornstein (sic) and maybe somebody else was covering the other exits, that's how I remember. He didn't think he was the guy with the ram, but that was his general memory. And then he did testify, you know, I did this, he did it very dramatically on the stand, and this is what I would have said. Our position is that he doesn't really remember it, given all the things he doesn't remember. None of the agents talked about the dogs. I got to tell you, I asked the question intentionally to each one of them, do you remember anything else about what was there. And, of course, I guess this is a credibility contest or something, because Mrs. Vasquez I think was quite clear and believable about testifying.
THE COURT: Is the presence of the dogs material?
MR. WILLSON: Is it material in terms of was something in plain view or was there consent? It's not, you know. It's not. There's no dog factor in the analysis. But in terms of their ability to remember what happened, which we're all relying on or, frankly, Your Honor, you have to decide whether you can rely on it, I think it's very important. That's, I would assume, something that sets this case apart from others. Although there's probably lots of dogs at lots of places. Maybe that's the way to respond to that. But it's something that would set it apart, the fact that the one dog that went after the German Shepherd or friends with the German Shepherd, I would think that would be memorable, especially to the dog handler. Although, I don't think he testified. So I don't think he's one of the agents that was here, even though it was the Government's burden to prove. So I think that raises a whole other layer of things.
Then we have the issue that the fact that the first agent testified that he shook the pants — doesn't seem to be any dispute about pants being shook. Shook the pants, out fell a pouch, out fell a punch of money, and my memory is he quite clearly said that the pouch was not open. And I think that was a salient moment in his testimony from our perspective. Now, obviously the second agent testified differently. Said that some stuff spilled out. One of the agents testified about the pants being shook and walked so created like a trail. So while the second and the third agent's testimony conflicted with the first one, there's wasn't entirely cohesive either. So we have another credibility issue there.
Then we have this issue about the pencil bag or whatever you want to call it, which the agents apparently did not seize from the crime scene because they don't actually have the bag itself. Just in looking at the picture, the Court may be able to draw some conclusions about how likely it was to be popped wide open, if that's the type of bag that would be open or if it would stay closed when it tended to be left alone. There's conflicting testimony about whether it was right on top, out, open, clear as day, you know, regular in plain view. I think that's essentially what Agent Rubinstein's testimony was, where as the other testimony varied from that and, obviously, Mrs. Vasquez completely contradicts it.
So we have that layering of an issue as well. What we don't have here is we don't have consent. There's no consent to search. It seems like there's no dispute about that. We have Weaver that says if you come in the door in the wrong way, as I read it, there could be a mountain of heroin sitting in the room and you're not allowed to use that as evidence. That's the way I read Weaver. Maybe I'm stretching it. But it seemed like they came into the room, some sufficient was pretty much in plain view, and the Court said to exclude it.
So there's a lot of layers here. It's not a simple suppression hearing. It's not just a gun that was found in someone's waistband and that's the whole case. There's a lot going on.
With that, if the Court wants to receive briefing, we'd be more than willing to do it. I think if the the Court's going to make some credibility determinations, the transcript may be necessary to do that, and go from there. I don't know if you have any questions.
THE COURT: I don't. Thank you.
MR. WILLSON: If I could just check in with Mr. Vasquez, if I may.
Again, looking at the report, Mr. Vasquez raised a good point with me.
THE COURT: Which report?
MR. WILLSON: The arrest report in paragraph five. It doesn't talk about the pants having been shook, I don't believe.
THE COURT: There doesn't seem to be a dispute about that.
MR. WILLSON: It doesn't. But it raises the reliability of the investigation, how the whole issue was handled as an issue.
Also, as to the second item, it's unclear about the extent to what they're doing. And one thing that struck me as inconsistent in the testimony as well was the idea that they wanted to give him pants, yet they wanted to give him shorts, because he couldn't wear pants because it would require a belt and you're not allowed to have a belt when you go into custody for policy reasons. So I think that was another inconsistency. So I think we have testimony by three agents that don't ring consistently.
THE COURT: Where is the inconsistency there?
MR. WILLSON: My recollection, again, this is a bit ago, was the one agent says I picked up the pants because he seemed to nod towards them. But then I believe it might have been Agent Bornstein (sic) that said something along the lines, well, we weren't going to have him wear pants. But, again, that's why I think the transcript may be necessary. But the idea, no, we were going to have him wear shorts and probably were shorts in the laundry basket.
THE COURT: I thought the testimony was that they picked up the pants, they shook them. I thought he tried them on and he needed a belt and that's when they concluded he couldn't wear pants. That's what I recall. But you're right, the transcript would tell us.
MR. WILLSON: With that, I don't think anything further right now.
THE COURT: Thank you, Mr. Willson.
Mr. Hall.
MR. HALL: Yes, Your Honor, thank you.
First, on the Weaver thing. I cited to the Hudson case just in a knee jerk really, frankly, a knee jerk reaction to the motion being filed. In reading Weaver, I wouldn't call myself a student really of the law, I'm a practitioner and I use the parts of the law that suggest themselves for me to use. So I don't consider myself a very deep legal thinker necessarily.
THE COURT: But you're about to tell me why Weaver is ill-conceived.
MR. HALL: I'm going to tell you that as a law student even just reading it, it seemed — this is a Fourth Amendment violation being alleged. We're talking about a remedy that has been developed and granted on to the Fourth Amendment which is suppression. You know, if you have a Fourth Amendment violation then you have suppression. If you don't have something that rises to a violation of that constitutional provision, then you don't have suppression. Here the allegation is knock and announce was not done properly. And I think that the majority in Weaver seemed to me, you know, at the level at which I do these things, seemed to me to be result oriented, seemed to be reaching, because it — I was going to say over-characterized — it stretched what the Court said in Hudson. And I think in the descent to Weaver the Judge pointed that out. I think in the majority opinion in Weaver, the Court made a lot of various interests that are protected by the Fourth Amendment and by the knock and announce rule.
THE COURT: Well, the Supreme Court has held that the knock and announce rule is, in fact, an element of the Fourth Amendment. There's also federal statute, but that it is part of the Fourth Amendment in effect. So I'm not sure I follow you when you say it seems to suggest that there's some separation between the knock and announce rule and the Fourth Amendment. That doesn't seems to be consistent with Supreme Court precedent.
MR. HALL: Well, no. I think that Weaver read as though Hudson says that the purpose of knock and announce is to keep the prying eyes of the Government from the inside of the apartment when, in fact, in Hudson, I think, and there wasn't a lot of verbiage either, I think what the Court was talking about was damage to property and the indignity that the person can be subjected to by law enforcement officers entering his apartment. It was not an issue of a person having a right to be able to hide things from the prying eyes of the DEA or the FBI or whatever, which the majority opinion made it sound like Hudson said, which it didn't. And the interest in the knock and announce rule, just going back to common law, there was a Wilson case that goes through some of the early English cases, the purpose of it was so that a property owner who is in bed at night would know that when somebody knocks on his door, the person's there for a legitimate reason, the King's business or whatever, and they have a legal basis for being there, and it's not that he's being robbed or something.
THE COURT: But it's always so the person can get to the door, too, right? Just thinking through that, the theory if there's compliance with a knock and announce rule, then there's time to get to the door to open it to prevent property damage. And in a case where that would have happened, that is to say, in a case where there was evidence that had there been compliance, someone would have come to the door and surrendered for arrest at the door. Would you agree that at that point if that had happened then the agents could not go into the apartment and look around?
MR. HALL: I would. And I would say based on their testimony that they would have had no interest in doing so.
THE COURT: Okay. And so if the part of the discussion in Hudson was about causation, right, that in the search warrant context there really is no privacy interest within the home that is being protected by the knock and announce rule because whether or not there's compliance with the knock and announce rule, the search warrant gives them the right to be on the property and, therefore, whatever they discover on the property would have been discovered anyway, i.e., there's no causation. That cannot be said, I think, based on what we just discussed, which is you agreed with me I thought that if there is compliance with the knock and announce rule, and if there is evidence that the person would have come to the door and surrendered, then there would be no need to go in the apartment and that would not have happened and evidence would not have been discovered.
MR. HALL: I'm sorry, Your Honor. What I was agreeing to was if someone had come to the door and opened the door, then perhaps the agents, if it was Mr. Vasquez, then the agents would not have entered the apartment. They would have cuffed him up at the door and taken him away. If, on the other hand, Mrs. Vasquez answered the door and they said we have a warrant for your husband, and she said he's inside, I think they would have gone in to get him and I think they would have been right to do so.
THE COURT: I think I agree with you on that.
MR. HALL: And what would have happened then was he would have been practically naked, he would have needed his pants, he would have selected them, they would have picked them up, they would have made sure they were safe, which they weren't, and then they would have found those drugs and then they would have found the drugs in the basket because they were standing right there. I don't think it would have, you know — well, the reason it's hard for me to talk about is because I think that, first of all, they did knock and announce, because I think that was the clear testimony of the agent who knocked and announced. There was a waiting period. Perhaps too long. Perhaps too short. I mean, these guys are supposed to be thinking what's going to happen to me. If I wait here longer than a couple of beats or 20 seconds or less than a minute or whatever it was, I agree with what you remember, Your Honor, one of them said about 20 seconds and one of them couldn't really come up with anything and then said, well, it was less than a minute. I think that's what Sergeant Burns said. This guys are thinking that this is not a search warrant where they're going to be able to go into the house even if nobody answers the door and nobody's home. They're going to go in with a search warrant and do what they need to do. This is an arrest warrant. They have reason to believe there is a felon, a person who has just been charged with a serious felony inside, and they have reason to know what it was. And that business that they're in is the other side of the business that Mr. Vasquez is alleged to be in also which involves the distribution of heroin and tools of the trade include guns —
THE COURT: But there's a Supreme Court case called Richards from 1997 that effectively says there's no automatic exemption to the knock and announce rule for drug cases. And, as I recall, the agents here testified, understandably because this was a big operation, you know, and guys — I'm not faulting them for this. But my recollection is they candidly acknowledged they had no specific information —
MR. HALL: That's correct.
THE COURT: — that there would be drugs in the apartment, that Mr. Vasquez was dangerous, armed, et cetera.
MR. HALL: That's right. And they certainly had no reason to want to search the apartment at all.
THE COURT: All I'm getting at is with regard to that, do you agree with me that, based on this record, the knock and announce rule applied. That is to say, there's no — I've actually not seen the warrant, but it's referenced in the arrest report and there's no dispute that there was an arrest warrant, but it wasn't no knock warrant.
MR. HALL: It was not, Your Honor. It was right off an indictment.
THE COURT: That's right. And so here, from what I can see based on the facts, they had to comply with the knock and announce rule.
MR. HALL: I think they were instructed to do that and that was their practice, as they both testified or two of the three testified, the State Police officers, they've done this hundreds of times together. So that's what they do and that's what they would do, unless they were told you shouldn't do it, here's why, whatever. So we don't claim that this was an exempt situation. That's not the legal claim that we're making. It's a factual claim which is that they knocked, they announced, they waited, they heard movement in the apartment which did not result in the door opening immediately, so they made the decision, which I think was within their discretion at that point, to open the door. And that's what they did. Whether 20 seconds is a long enough time to wait in an apartment that size, they were familiar with this type of housing, too, although not knowing what the floor plan was and or what the people inside might be doing, they have to worry about their own safety and the safety of the men standing on either side of them. There were no women there I think. The men standing on either side of them. As well, frankly, as the safety of whoever else might be inside because they, of course, are armed to the teeth. And they have their weapons out. They're ready to do whatever has to be. So to avoid all that, which everybody likes to do I think, they decided to breach the door after there was not a response within somewhere between 20 seconds and less than a minute, whatever that was. And the Government's position would be that that was a reasonable wait given that they heard something. I'm not going to touch the situation where — Sergeant Burns was farther down the stack. He wasn't the guy right at the door. The guy right at the door, Trooper Walsh, said he heard something and that's why he breached the door.
It's interesting to me, I think I pointed out in a telephone conference, I don't think that that is necessarily at odds with the affidavit that Ms. Vasquez made. Because I think a very fair reading of that affidavit indicates that she awoke to loud banging. Now she said on direct here there was one bang, and then another bang, and the door was down. But in her affidavit she said she awoke to loud banging. I would suggest that perhaps over time, as Mr. Willson is also suggested, memories become clouded and maybe things, very specific things aren't exactly remembered, but she claimed in her affidavit that she was awakened by a loud banging. That suggests more than one bang. It also includes the possibility that the one that woke her up wasn't the first one. I don't know. But the affidavit says that she was awakened by loud banging followed by an announcement.
Now, the way she remembers it, DEA search warrant, you know, that's what they says. The point of the announce, to go back to the English common law stuff, is just to know these guys are on the King's business, or whatever we call it in a Republic. But they had official process and they were lawfully executing that process. And so whether they said search warrant, which I don't believe they probably would have, or whether they said police with a warrant, which is what I think the troopers would have said because that's what troopers say because that's what they are, it doesn't really matter. The people inside the apartment had reason to know, based on that announcement, that you had law enforcement officers with legal process banging on the door. And then she says there was banging after that. Whether that's the door coming down or whether it's further knocking, just based on what she says in her affidavit. The time periods are not set forth in the affidavit. It seems to me that that's entirely consistent with what the troopers told you, Judge. And I think there was nothing wrong with their knocking or announcing and then entering under the circumstances that they described to you. So I don't think there's a knock and announce issue.
I would say that — I don't think there's a knock and announce issue really. If there is, I think that Hudson governs. I think that Pelletier is right and Jones. And the descent I think in Weaver really calls out the majority point by point and makes what I think is a very good argument that goes right back to Hudson and doesn't take matters out of context the way I think the majority does. But, again, like I said in the first place, I'm not a technician.
Now, Mr. Willson referred a couple of times to — I think he was talking about the report that was written by Special Agent Rubinstein. It was a report. It wasn't an affidavit. This was, as you just said, Judge, a large operation. Special Agent Rubinstein did not participate in the entry. He was a command person there, as he told you. He was the guy in charge of that part of the operation, but he wasn't one of the hands on guys. I don't think there was testimony that he came in with his gun drawn. I think the dramatics had already subsided by the time he went into the apartment. The State Police entry team had done its job, had secured the people inside the premises. Everybody was cuffed up. I think that's what the testimony was.
So Special Agent Rubinstein also testified, I think, that he wasn't involved in the underlying investigation in this case except perhaps incidentally. That is to say, the New Haven Resident Office, as I think he said, ran this investigation. Other agents did it. And he undoubtedly ran into people in the hallway or whatever, might have sat on the wire once or twice, but the point is that wasn't his case. He was brought into it with a whole bunch of other people to run this entry team to execute an arrest warrant for one guy.
After this was done, as he testified to you, Judge, he didn't have notes or anything. He tried to write up the report. He called Walsh and Burns and went over what he was thinking with them, made his report. Was the report perfect? No. Are there things that are wrong in the report or left out? Yes. Are there things that I would like to see or would have liked to have seen in the report that it would have made more sense to you, Judge, under these circumstances. Yes. But do I think that the Agent fabricated anything in the report or tried to hide anything in the report? No. I think he did a report in somebody else's case, he did the best he could with what he had, and then that was it. He got it signed off on by a supervisor who had nothing to do with any of this. Never was in the house at all. Special Agent Schaffer I think actually is up here now. And I don't know there's any testimony — there couldn't be any testimony that he was involved in the underlying investigation. He was not. I don't remember if Special Agent Rubinstein told you that or not. And so I would claim that. But that's the way it is.
The paper that was prepared for Ms. Vasquez, though, was not a report. It was an affidavit. And it was prepared for this suppression hearing. I'm sure that great attention to detail was paid both by its author, which I presume to be Mr. Willson, and also by Ms. Vasquez who swore to its truth. And there are a number of things that are absent from that affidavit, which is a sworn affidavit for the purpose of this hearing, that were not in the report of Special Agent Rubinstein. What about the three little dogs? They're not in the affidavit. I don't know if they're material either. I don't. They're not in there. But more importantly, there are a couple of things that she says in the affidavit, aside from the knock and announce part of it, which again I think is consistent with what Trooper Walsh testified to and is consistent with there being no knock and announce violation. But in addition, she said in the affidavit, and this is very important, in paragraph 12, I saw them start to search the basket as they were moving me and my husband from the bedroom. That is entirely different from what she told you here today, Judge. If I recall our telephone conference correctly, that verbiage right there is the reason we're here on a hearing. I mean, there may be others too, but that was the thing that the Court, and I agree with the Court, and I'm sure Mr. Willson did, too. That was the thing that we all said that would trigger a suppression hearing, because they started to search. I saw them start to search. Well, she testified today finally that she didn't see anybody search the basket. She presumed that the basket was being searched. The testimony of the officers was the thing, the drugs, the heroin, was right on the top of the basket once the pants were removed. That's what their testimony was. There's nothing that she testified to that contradicts that or even calls it into question at all. And there's no indication from anything that she said in her affidavit and anything she said on the stand that she didn't presume to suggest that anybody conducted a search of that apartment.
THE COURT: Say that last part again. I'm sorry.
MR. HALL: I'm a master of too many negatives. Nothing she said in her affidavit except for that I saw, you know, the search, and nothing that she said here would support a finding directly that anybody searched anything in that apartment. She presumed that somebody went through the laundry basket. She did. She said in fact that she didn't — I mean, she got to admitting that all she could see was the guy's back when he pulled the pants out and that she didn't even see the other guy in the basket at all. He was in the other room and, from where she was standing, she had an angle through doorway to the right which she made very clear because she said she could see an open closet door. I don't know how she could have see that, frankly, from looking at the picture. But she said she saw that. But to also be able to see the angle to the left would be not likely. But she admitted that she didn't see anything. So there was no search anyway.
She puts the pants in the basket, just like the agents do. Mr. Vasquez needed some pants to wear. As the agent said, I don't think they said that he tried them on. I think they said that it became evident that they were the sort of pants they have a big waist so you can wear them a certain way and would require a belt for them to keep them up when he's handcuffed. I think that's what the agents were saying. They didn't try them on him, I don't think, according to their testimony, but they were unsatisfactory. And so that's where the shorts came from. And I think that was the testimony.
So I don't think there was a knock and announce violation. I don't think that there was a search. I think that as the trooper indicated, Mr. Vasquez needed some pants. He indicated the pants on the top of the laundry basket which is where they were according to the government witnesses as well —
THE COURT: Give me one second, please. Sorry about that. Go ahead.
MR. HALL: No, it's okay.
So they moved the pants for a legitimate law enforcement purpose, which is sanctioned by the courts, to clothe the man so that he could taken where he was going to go. They needed to make his pants safe. They did. As the trooper said, I'm not going to stick my hands into pockets in that type of article because there could be needles, there could be whatever. And so he didn't do that, he shook them out. Ms. Vasquez said she only saw money. One of the troopers said the black bag was closed, but that you could see the drugs in it. One of the troopers said I saw the black bag, I didn't see any drugs.
Again, these guys were there for an arrest. And once the guy was arrested, their job was basically done. This other stuff became mop up for them which really wasn't part of their case at all. But I do think that — I believe, unless there's a suggestion that the agents dropped these drugs there so that they could frame Mr. Vasquez, and there's been no suggestion like that, there was heroin there.
So I think that there have not been any inappropriate or illegal searches or entries. There is the issue about the report. As I've indicated, I think, you know, it was the best that the agent could do under the circumstances.
THE COURT: The issue being the, I think, two omissions Mr. Willson mentioned that you're talking about. When you said the issue of the report, is that what you mean?
MR. HALL: There actually may be more omissions. Some of the same omissions from the affidavit that Ms. Vasquez made which may be immaterial matters. I don't know. There's nothing about the dogs in the report, I would certainly concede that, just like there was nothing in her affidavit.
But I think that as far as the report goes, you know, this guy Rubinstein, who was not really familiar with the case, did the best that he could to get this report done, and then that chain of documentation is complete and he's out of it. People sometimes misremember or put together things the wrong way when something happens where they were not present at.
THE COURT: Isn't Rubinstein — maybe I've got this wrong — isn't Rubinstein the case agent?
MR. HALL: No, he was the boss of this part of the case, that's what he testified to. There's case agent and then there's case agent. Case agent for the entire operation was the blonde man who's sitting in the back, Mr. Cogan, who brought the drugs for us that day. He wasn't going to testify in this. He wasn't present.
THE COURT: He was in charge of the arrest/visit to the apartment?
MR. HALL: This team. Yes, this was his one assignment was to run the execution of the arrest warrant and that's it.
Clerical mistakes or a scrivener's — not scrivener's mistakes, but clerical mistakes can be made and not be a consequence. For example, Mr. Willson repeatedly referred to an Agent Bornstein. I'm sure he took notes and everything like that and he cross-examined somebody for like, you know, half an hour or something, 45 minutes. There is no Bornstein associated with this case period. It's just a mistake and it doesn't matter.
The point is, again, if you look at what you have before you, what the troopers told you, and even what Ms. Vasquez admitted, it hangs together, Judge. These guys didn't have an evil or nefarious purpose. They went in to arrest this man. The reason they did it the way they did was to protect themselves and the people in the apartment. They did it very professionally. They did it quickly.
THE COURT: I can't remember. Does the arrest report say anything about — again, I'll have to look at the transcript — do you recall any testimony from the agents about marijuana? Was there any?
MR. HALL: I don't recall whether I elicited that from them. There was a little bit of marijuana at the apartment. I have a photograph of it right here sitting on the shelf in the closet.
THE COURT: Is that photograph in evidence?
MR. HALL: Pardon me?
THE COURT: Is that photograph in evidence?
MR. HALL: No.
THE COURT: The agents didn't testify to marijuana. Does the arrest report — does the arrest report have like an inventory?
MR. HALL: It does. But the marijuana wasn't seized. It was a baggy about the size of less than a walnut. THE COURT: So you don't dispute there was marijuana found?
MR. HALL: No, sir. It was there. I would dispute what she said about it.
THE COURT: I got you.
MR. HALL: Because she said that the dog guy went into the room with the dog.
Anything else you have questions, Judge?
THE COURT: I don't.
All right, Mr. Willson, very briefly, please. Rebuttal.
MR. WILLSON: First of all, for someone who claims not to know the law, Mr. Hall is selling himself short, he refers to the King's knowledge.
MR. HALL: If I could just correct the record. I didn't say I don't know the law. I said I'm not a technician.
THE COURT: You're a practitioner.
MR. WILLSON: If there's any stretching of Hudson going on, the stretching of Hudson is to say that Hudson applies to arrest warrant cases and not just search warrant. My memory of Hudson is that there's repeated references to the fact that there's a search warrant involved in the case. So that clearly seems to be important. Will the law evolve from there? Maybe. But it hasn't yet.
In terms of Mr. Hall's characterization of the agents just kind of showing up at the door, just there to arrest him, you know, and that's kind of it, and they're all professional. I'm not doubting their professionalism, but I believe there was testimony from at least one that he had gone out to the car thinking they were going to search the apartment and then got back and sort of it wasn't going to happen and that was the end of the day. So the idea that they just show up at the door just to pick up the guy and take him down to court just doesn't ring true, frankly, in any case I've seen, especially in this one.
There's the absence of the dogs in the affidavit. There's the absence of the marijuana in the affidavit. To get a hearing I recognize I need — it's helpful to submit an affidavit, although I would take the position it's not always necessary, but there's no requirements about putting each and every detail, nor can I foresee that three people are going to come in and testify that there were no dogs there. Let me take that back. I asked them, and I believe I asked each of them, was there anything else in the apartment besides of note. That was to see what they remembered. And none of them mentioned it. And I got to believe that one of them would have. But that didn't happen.
THE COURT: Why would the agents lie about that? Why would Ms. Vasquez lie about that? I just don't understand what the — that's why I asked about materiality.
MR. WILLSON: The point is not that the agents lied about it. It that they don't remember what happened. So that their memory, we can't rely on that in deciding what are the critical facts here that the Government has to prove.
I did ask the agent, I believe, the one who said he had heard something, well, did you hear — I tried to probe a little more, well, what did you hear. If I remember correctly, I asked him did he hear something being destroyed, a gun being loaded, the kinds of things that would make you want to break down the door and come raging in, and to all that he indicated no.
THE COURT: I think he just said he didn't know, right, or didn't recall or something like that?
MR. WILLSON: I thought I had a stream of good questions.
THE COURT: I'm sure there were good questions. All I remember is foot steps, foot steps. That's all I remember.
MR. HALL: I think, Your Honor, it was movement.
THE COURT: I'll go look at the transcript.
MR. WILLSON: Right.
And then finally, obviously the nature of my objections is that the document says what it says. In terms of Mrs. Vasquez's affidavit, a paragraph returned in the middle of — after the first sentence, in paragraph sentence, perhaps makes that affidavit read a little bit differently, which is that there had been two bangings, and then they had come into the apartment. The bangings assume they had broken down the door. When they entered the apartment that's when they made the announcement.
Let me just see if there's anything else, otherwise, I think — just the last thing about the basket. I guess two things about the basket. One, I think ultimately Mrs. Vasquez indicated that she was testifying based on what she could see in terms of the basket. The basket was on that wall. That was sort of around from the doorway if you're standing in the living area. That ultimately the officers bent down and made some motions into the basket or towards the basket. I think those are all very reasonable statements for her to make. In the report it doesn't spell out what was going on other than they were trying to get shirt and shorts for Mr. Vasquez. And they don't use the words plain view, which they all know how to use those words. And so I think that report has consequences. And affidavit versus report, I guess we can debate that.
THE COURT: Please don't.
MR. WILLSON: I'm not looking to. But since we rely on those reports so significantly they got to be true or else the system just doesn't work.
I have nothing else, Your Honor.
THE COURT: Thank you both. I'll take it under advisement. We'll be in recess.
I, Martha C. Marshall, RMR, CRR, hereby certify that the foregoing pages are a complete and accurate transcription of my original stenotype notes taken in the matter of UNITED STATES V. VASQUEZ, which was held before the Honorable Michael P. Shea, U.S.D.J, at 450 Main Street, Hartford, Connecticut, on March 29, 2016.
