Opinion and Order — No. 2:24-cr-00078 (Dkt. 28, D. Vt.)

Summary

Opinion and order of June 5, 2025 by Judge William K. Sessions III in the U.S. District Court for the District of Vermont, United States v. Bounthavong Sonthikoummane, case 2:24-cr-00078, Document 28. The defendant is charged under 18 U.S.C. § 922(g)(3) with possessing firearms while an unlawful user of controlled substances. He moved to suppress statements made in custody before a Miranda warning about firearms in his home and his drug use, and the court heard three law enforcement officers on March 20, 2025. The court rules that his statement about additional firearms at his home may be admitted but that the rest of the challenged questioning including statements about drug use may not, granting the motion in part and denying it in part.

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       2:24-cr-00078-wks   Document 28   Filed 06/05/25   Page 1 of 30



                    UNITED STATES DISTRICT COURT
                               FOR THE
                         DISTRICT OF VERMONT

UNITED STATES OF AMERICA          )
                                  )
          v.                      )      Case No. 2:24-cr-78-1
                                  )
BOUNTHAVONG SONTHIKOUMMANE,       )
     Defendant.                   )

                           OPINION AND ORDER

     Defendant Bounthavong Sonthikoummane has been charged with

violating 18 U.S.C. § 922(g)(3). The government alleges that Mr.

Sonthikoummane knowingly possessed seven firearms and ammunition

while an unlawful user of and addicted to controlled substances,

in violation of § 922(g)(3). ECF No. 1. Pending before the Court

is Defendant’s motion to suppress certain statements Defendant

made while in custody regarding firearms in his home and his use

of a controlled substance. ECF No. 24 at 14. The Court held a

suppression hearing on March 20, 2025, and heard testimony from

three law enforcement officers who participated in the

Defendant’s arrest and questioning. For the reasons set forth

below, Defendant’s motion is granted in part and denied in part.

                               Background

     On June 12, 2024, a federal grand jury in Vermont returned

an indictment against the Defendant, charging him with false

statements, conspiracy, wire fraud, and money laundering,

related to events in 2020 and 2021. ECF No. 14 at 1-2. The grand
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jury also indicted Defendant’s girlfriend1, Ashlyn Arcouette,

with the same excepting the false statements. Id. Sealed arrest

warrants were issued for both.

      The following day, June 13, 2024, law enforcement agents

from multiple agencies went to the Defendant and Ms. Arcouette’s

home in White River Junction, intending to arrest both. Id. at

2. The agents did not have a search warrant for the home.

      FBI Special Agent Antoine Waithe was the lead case agent

for the investigation that led to the aforementioned warrants.

Agent Waithe also developed the plan for executing the arrest

warrants and led the multi-agency team on June 13. Id. Per Agent

Waithe’s testimony at the suppression hearing, the plan

following arrest was to bring the Defendant to the local

Hartford, Vermont police department, “then go through the

regular procedure, and then once he’s removed to bring Ashlyn

also to the PD with separate transport, and then as soon as [he]

could, would be to meet with [Defendant], do the Miranda, and

then attempt an interview.” See also ECF No. 19 at 2-3. Agent

Waithe planned to follow essentially the same process with Ms.

Arcouette “concurrently,” or at least beginning once the

Defendant had been “removed” from the scene of the arrest, i.e.

his home.


1 Parties variously refer to Ms. Arcouette as the Defendant’s “partner” or
“girlfriend.” Determination of this distinction, if any, is not before the
Court.

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     Two factors complicated the arrest and interrogation plan.

The first was the discovery that Mr. Sonthikoummane and Ms.

Arcouette had two five-month-old infants in their care at their

home. Agent Waithe had previously seen “some social media

mention in a part of the case that there was a baby registry at

some time,” according to his testimony. However, Agent Waithe

testified that, not having seen other corroboratory information,

he was not anticipating the presence of the infants. The second

was the discovery of a firearm by Customs and Border Protection

Agent James Pollard.

     The timing and sequence of events on June 13 are important

to resolution of the motion, and both counsel for the defense

and Agent Waithe have prepared timelines. ECF Nos. 24, 24-1.

     The team executing the arrest warrant was comprised of

members of the FBI, led by Agent Waithe, and members of the

Hartford Police Department. ECF No. 24-1 at 3. The team began

the day with a briefing at the Hartford Police Department at

7:00 a.m.

     At that 7:00 a.m. briefing, some members of the team,

including Agents Waithe and Kirwan, learned from a Hartford PD

detective, apparently for the first time, that the Drug

Enforcement Administration (DEA) had interest in the house and

its occupants and had at one point had a pole camera set up

outside the house. At the March 20, 2025, suppression hearing,

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Agent Kirwan indicated he thought the Defendant “was under

investigation at one point” by the DEA but that he “believe[d

the DEA] ended the investigation” before June 13. At the

suppression hearing, Agent Waithe testified that while he was

initially unaware of the DEA investigation, he assented to a

local police officer informing the DEA that they were executing

the arrest warrants that day. Hartford PD Detective Lieutenant

Thomas Howell was “advised of DEA interest prior to OP,” per a

personnel list prepared by Agent Waithe. ECF No. 24-1 at 3. It

is not clear if Lt. Howell was in fact the one who informed the

FBI agents at the briefing of the DEA investigation. The DEA

ultimately appeared and attempted to search the Defendant’s

house and interview the Defendant at the police station later in

the day.

     While Agent Waithe may not have known about the DEA

investigation before that 7 a.m. briefing on the day of arrest,

he did have some knowledge of the Defendant’s past troubles with

the law. In the course of his investigation, Agent Waithe found

that the Defendant “along with his brothers, were likely engaged

in drug trafficking for a long period of time and that there was

some drug use in [Defendant’s] previous history,” according to

his testimony at the suppression hearing. Agent Waithe was also

aware of the Defendant’s past arrests and charges for violent

crimes. However, Agent Waithe testified that prior to the

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arrest, he did not have enough information “to determine whether

or not [Defendant] was a prohibited . . . possessor.”

        By around 8:22 a.m., the Defendant had voluntarily exited

his home, was handcuffed, and was taken into custody in a patrol

car. ECF No. 24 at 2. He was not given a Miranda warning when he

was taken into custody. The Defendant would remain in custody in

the patrol car parked near the house until approximately 8:53

a.m. when a HPD Officer began transporting him to the police

department. ECF No. 24-1 at 1.

        At around 8:26 a.m., Ms. Arcouette exited the house

carrying her two infants. Agent Waithe informed her that he

would “need to get” some additional clothing for the Defendant

from inside the house. ECF No. 24 at 2. Agent Waithe further

informed Ms. Arcouette that officers would need to accompany Ms.

Arcouette into the house and “take a quick peek in the rooms,

just for our own safety.” Id. Four officers, including Agent

Waithe, accompanied Ms. Arcouette into the house over the next

few minutes as she obtained items for the Defendant. At

approximately 8:35 a.m., Agent Waithe declared the scene secure

and directed the FBI agents to turn off their body cameras.2 Id.

at 2.



2 Agent Waithe testified that his “understanding of our FBI policy is that
once the scene is deemed safe and secure, the team leader directs the
deactivation of the body cameras.” HPD body cameras, as well as cameras on
cars and in the police station, captured footage after 8:35 a.m.

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     According to his testimony at the suppression hearing,

within the next few minutes, by 8:40 a.m., Customs and Border

Protection Agent James Pollard who had remained in the living

room of the house “noticed that bookcase and [he] could see what

looked to be like the grip of a handgun on the bookcase.” Agent

Pollard promptly exited the house and notified other members of

the team that he had found a firearm. After obtaining gloves,

Agent Pollard and Agent Kirwan re-entered the house. Agent

Pollard testified that he removed the magazine and ensured the

chamber was clear “just to render it safe so it wasn’t a

potential threat to any officers” and left it in place on the

bookshelf. Agent Waithe then took pictures of the firearm to run

criminal checks on it.

     At 8:44 a.m., Agent Waithe placed two calls. The first was

to an Assistant United States Attorney. ECF No. 24-1 at 1. The

second was to Lt. Howell, who had remained at the police

station. At 8:51 a.m., Agent Waithe sent Lt. Howell pictures of

the handgun to run criminal checks. ECF No. 24 at 3.

     Nearly simultaneously, beginning at approximately 8:43

a.m., Agent Kirwan initiated a conversation about the discovery

of the firearm with HPD officers:

     Agent Kirwan: As far as you’re aware, are they prohibited
     from owning firearms? Are they?
     Sgt. Moody: I mean, is there anything to do something with
     drug using? Drug user in possession?

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     Agent Kirwan: She’s overdosed a couple times.
     Sgt. Moody: Do you have enough to temporarily do like
     924(c) or something? I don’t know what his criminal record
     is. Like I haven’t seen anything. He’s got a home invasion
     and an ag assault. I assume he’s a felon in possession but
     . . . State charges are a little difficult.
     Agent Kirwan: Can you just charge that? Rather than . . .
     Sgt. Moody: Yeah, I don’t. Like I think if you get him to
     even say, you know like, yeah, one of them smokes
     marijuana.
     Agent Kirwan: I used to . . .
     Sgt. Moody: Well, right, you know what I mean . . .
     Agent Kirwan: Yeah, I gotcha.

ECF No. 24 at 3.

     During a short break in the conversation, Agent Kirwan

informed Agent Waithe about the discovery of the firearm and

told him that Ms. Arcouette was claiming that the firearm

belongs to the Defendant. Defendant Exhibit H, BodyCam_102 at

9:44:30 a.m. The conversation with Sgt. Moody continued:

     Sgt. Scott Moody: No sign of drug use or anything?
     Agent Kirwan: What’s that?
     Sgt. Scott Moody: Did you see any sign of drug use at all.
     Agent Kirwan: [shaking his head “no”] Surprising to me.

ECF No. 24 at 3. At 8:51 a.m., the Defendant was driven away

from the house to the police station.

     At 8:57 a.m., still inside the house, Agent Waithe informed

Ms. Arcouette for the first time that there was a warrant for

her arrest. ECF No. 24-1 at 1. As noted above, the plan had been

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to immediately transport Ms. Arcouette to the station after the

Defendant departed the scene. But Agent Waithe testified that

the presence of the infants prompted alternate arrangements on

“humanitarian grounds.” For the next 13 minutes, Agent Waithe

and Ms. Arcouette attempted to coordinate the possibility and

logistics of her surrender at a later time to account for

childcare. At around 9:10 a.m., Agent Waithe gave Ms. Arcouette

a Miranda warning, and she invoked her Miranda rights, according

to Agent Waithe’s testimony and contemporaneous body camera

footage.

     However, that invocation did not end the conversation

between Agent Waithe and Ms. Arcouette, nor did Agent Waithe or

other officers exit the house immediately. Agent Waithe and Ms.

Arcouette continued to speak about the logistics of Ms.

Arcouette’s self-surrender and the firearm(s) for at least the

next hour and a half. At approximately 9:14, three minutes after

Ms. Arcouette invoked her Miranda rights, Agent Waithe told Ms.

Arcouette that he was “trying to figure out who owns” the

recently discovered firearm. Defendant Exhibit A, BodyCam_172.

Agent Waithe testified at the suppression hearing that his

“intent was to figure out the status of the weapons because we

were trying to figure out whether there were any criminal hits

on the weapons we’d encountered.”



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     Beginning at approximately 9:22 a.m., Agent Waithe spoke on

the phone with Lt. Howell and also with Agent Kirwan who had

returned to the station. ECF No. 24-1 at 1.          There does not

appear to be a recording available of this call, but Agent

Waithe testified, “I asked Agent Kirwan to extend the offer of

self-surrendering the weapons for temporary safekeeping at the

PD because I thought that was best for the safety of the

household and also from a public safety perspective.”

     Immediately after speaking with Agent Waithe, at around

9:26 a.m., Agent Kirwan entered an interview room in the police

station where the Defendant sat with one hand handcuffed to a

bar on the wall. Agent Kirwan initiated conversation with the

Defendant. He informed the Defendant that law enforcement had

discovered a firearm in the house in plain view, and he first

asked the Defendant whether there were any other firearms in the

house. The Defendant responded that there were more. Then Agent

Kirwan asked who the firearms belonged to. The Defendant

responded that the firearms belonged to him, and he had obtained

them on Snapchat. Agent Kirwan then told the Defendant about the

offer to store the firearms as a potential condition of release,

which the Defendant declined. These statements are, in part, the

subject of Defendant’s motion. The Defendant had not at this

point in the morning been given a Miranda warning.



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     Agent Kirwan relayed the Defendant’s responses to Agent

Waithe, back at the house. ECF No. 24 at 4. Agent Waithe, in

turn, relayed to Ms. Arcouette that the Defendant had said there

were more weapons in the house. Id. The Court understands that

the Defendant is not moving to suppress evidence of any firearms

found following these conversations. Therefore, it is enough to

state that in short order the officers found several additional

firearms in various rooms of the house.

     Approximately 35 minutes later, at 10:04 a.m., the

Defendant began dry-heaving and spitting up, while still

shackled in the interview room. ECF No. 23 at 6; Government

Exhibit 1, Interview Room footage at 10:04:30. The Defendant

continued dry-heaving and spitting up until approximately

10:06:30, and he used a roll of toilet paper provided earlier by

the officers to wipe up any spit. Government Exhibit 1,

Interview Room footage at 10:06:30. At 10:06:41, Lt. Howell

opened the interview room door. It is unclear from the record

whether Lt. Howell was aware the Defendant had been ill before

opening the door, as Lt. Howell stopped speaking mid-sentence to

inquire as to the Defendant’s well-being: “Hey bud, we’re going

to put you – how, are you okay?” Id.

     Over the next minute, Lt. Howell asked the Defendant a

series of questions about why he is ill, alternating between

asking whether it may be traced to food or to drugs. Lt. Howell

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first asked whether it was something the Defendant ate. Then he

asked, “No drugs?” to which the Defendants said no. Lt. Howell

also asked whether the Defendant would like the fire department3

to check on him. At first the Defendant said he did not know.

Lt. Howell again asked about food before asking, “Ok. Did you

take any drugs?” When the Defendant replied no, Lt. Howell again

asked, “Nothing?” Following another no, Lt. Howell, asks again,

“No dope, no meth, no nothing, no crack?” After the Defendant

again replies no, Lt. Howell said, “I don’t really care about –

I I don’t want you to have taken something and then you’re

overdosing in the cell. Okay?” After those questions about drug

use, Lt. Howell asked again whether the Defendant wanted the

fire department to come take a look at him, and the Defendant

responded affirmatively. Lt. Howell said they would first

transfer him to a cell, and the fire department would see him

there. At approximately 10:08:15 a.m., the Defendant departed

the interview room and was moved to a holding cell.

       Within a minute, the Defendant was relocated to the

holding cell, where his hands were cuffed to a band around his

waist. Lt. Howell continued asking him about the cause of his

illness. Lt. Howell told the Defendant that the firefighters

were going to come take a look at him, and that “if you took


3 The Hartford Fire Department and Hartford Police Department share an
address. See https://hartford-vt.org/2440/Fire-Department;
https://www.hartford-vt.org/3689/Police-Department.

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something just tell ‘em. . . . If you need help, I want you to

get help. I don’t want you to feel like you’re sick. Just be

honest with those guys okay?” Id. at 10:10. Lt. Howell left the

cell, locking it behind him, and the Defendant rested on a

bench.

     A minute and a half later, Lt. Howell returned to the

holding room area and held an entry door open for the arriving

EMTs. Defendant Exhibit I, Outside Holding footage at 10:11:45.

As he did so, Lt. Howell began asking the Defendant questions

through the locked door of his holding cell:

     Lt. Howell: Hey, are you dope sick?
     Defendant: No.
     Lt. Howell: Are you dope sick at all?
     Defendant: I might be.
     Lt. Howell: You might be. Ok, all right.
     Defendant: Hey wait. Not to tell my girl. I just feel
     embarrassed. Don’t tell my girl ok. I just feel bad. Don’t
     tell my girl.
     Lt. Howell: That’s not their . . . that’s not their
     business. You just, will you tell these guys when the last
     time you used so they know what’s going on? Ok? When was
     the last time?
     Defendant: Five in the morning.
     Lt. Howell: Five in the morning you used? What did you use?
     Defendant: Heroin.
     Lt. Howell: Heroin?
     Defendant: Yep.



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Defendant Exhibit B, Holding footage at 10:11:45; ECF No. 24 at

6.

     Immediately after this conversation ended, the EMTs arrived

at the cell door. Defendant Exhibit I, Outside Holding footage

at 10:12:20. However, Lt. Howell walked away from the door and

presumably placed a phone call. Another officer, after failing

to open the door, had to retrieve Lt. Howell, who reappeared

while on the phone and provided assistance unlocking the door.

The EMTs entered the cell, and an EMT asked the Defendant what

was going on, so the Defendant repeated that he is “dope sick”

and last used at five in the morning. In response to further

questions, the Defendant provided further details about the

frequency and method of his use of heroin. Two officers remained

in the holding room entry area, with the door open, observing

the situation and engaging with the EMTs and the Defendant. Id.;

ECF No. 24 at 6. The Defendant’s responses to the questioning

from Lt. Howell, as well as his responses to the EMTs that

immediately followed his interaction with Lt. Howell, are the

subject of the second part of Defendant’s motion to suppress.

     The Defendant received a Miranda warning for the first time

on June 13 around 1:12 p.m., from Agent Waithe. ECF No. 24 at 6.

After receiving the warning, the Defendant invoked his rights.

     At 1:21 p.m., Agent Waithe told the Defendant, “We’re aware

that you’ve been involved in drugs in the past, and we believe

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that you’re still involved in drugs now.” Agent Waithe informed

the Defendant that an agent with the DEA waiting outside would

like to question him separately from the fraud case for which he

had been arrested, and Defendant again invoked his right to

counsel. A few minutes later, Agent Waithe informed the

Defendant that the officers had seized the firearms “in plain

view” at the house “because you’ve been using.”

                               Discussion

     Convictions under 18 U.S.C. § 922(g)(3) often require the

government to establish, inter alia, two key facts: (1) that a

person “is an unlawful user of or addicted to any controlled

substance (as defined in section 102 of the Controlled

Substances Act (21 U.S.C 802));” and (2) that the person

“possess[es] in or affecting commerce, any firearm or

ammunition.” When law enforcement officers arrived at the

Defendant’s house on the morning of June 13, 2024, to execute

arrest warrants for white collar crimes, by all accounts they

did not know either fact to be true about the Defendant. But

within approximately an hour and a half of being arrested and

taken into custody, the Defendant told the officers and EMTs

that (1) he used heroin, a controlled substance, earlier that

morning, and (2) he owned firearms. The Defendant now moves to

suppress those statements.



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     The Defendant argues that his statements about heroin use

and firearm ownership should not be admissible since they were

the product of a custodial interrogation in the absence of a

Miranda warning. Miranda v. Arizona held that “an individual

held for interrogation must be clearly informed that he has the

right to consult with a lawyer and to have the lawyer with him

during interrogation under the system for protecting the

privilege we delineate today. As with the warnings of the right

to remain silent and that anything stated can be used in

evidence against him, this warning is an absolute prerequisite

to interrogation.” 384 U.S. 436, 471 (1966).

     There is no doubt that the Defendant was in custody at the

time of the statements. The questions before this Court are

whether the conversations in which the Defendant made these

statements should be properly considered interrogations and, if

so, whether an exception still permits their admission. Given

“the inherently coercive nature of custodial interrogation,”

J.D.B. v. North Carolina, 564 U.S. 261, 269 (2011), “courts

place upon the government the burden to prove that a defendant’s

confession was voluntary.” United States v. Capers, 627 F.3d

470, 479 (2d Cir. 2010).

     The Court first considers the Defendant’s acknowledgement

of firearm ownership and finds that the conversation constituted

an interrogation and that the “public safety” exception proposed

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by the government is applicable in part and inapplicable in

part. The Court then considers the Defendant’s acknowledgement

of heroin use and finds that those conversations also constitute

interrogations, and no exception applies.

  I.      Statements related to firearm ownership

       The Defendant moves to suppress his statements made to

Agent Kirwan regarding his ownership of firearms at his home. At

the time of those statements, the Defendant was in custody,

shackled to a wall in a police station holding cell. The

Defendant argues that the conversation between the Defendant and

Agent Kirwan constituted an interrogation, conducted without a

Miranda warning. The government argues that the conversation was

not an interrogation because “the purpose was to ascertain

whether Sonthikoummane would voluntarily agree to surrender the

weapon,” or, in the alternative, that if it was an

interrogation, the public safety exception applies. ECF No. 19

at 3-4.

       Both parties point to Rhode Island v. Innis, 446 U.S. 291

(1980), to define an interrogation. The Supreme Court defined

“interrogation” to “refer[] not only to express questioning, but

also to any words or actions on the part of the police (other

than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an

incriminating response from the suspect.” Innis, 446 U.S. at

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301. The Court clarified that an “incriminating response”

includes not just “direct confessions” but also “statements

which amount to admissions of part or all of an offense.” Id. at

301 n.5 (quoting Miranda, 384 U.S. at 476-77) (internal

quotation omitted). However, not every question from law

enforcement automatically constitutes an interrogation, because

“the definition of interrogation can extend only to words or

actions on the part of police officers that they should have

known were reasonably likely to elicit an incriminating

response.” Id. at 302.

     In this case, Agent Kirwan asked the Defendant whether he

owned a firearm discovered at his home and whether there were

any other firearms present. The government argues that the

purpose of those questions was not to establish ownership of the

firearms but instead to facilitate a potential voluntary

surrender of the firearms, should the Defendant so desire. This

characterization is strongly disputed by the Defendant. However,

whether or not that was the primary purpose of the question, the

agent should have known that an affirmative response to the

question of ownership would constitute an admission to part of

an offense which Agent Kirwan suspected the Defendant may have

committed: firearm possession by a prohibited person. Therefore,

the interaction constituted an interrogation.



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     The Defendant has presented evidence that law enforcement

was in the process of establishing a case against him for

unlawful possession of the firearm. As established above, at

8:43 a.m., Agent Kirwan initiated a conversation with other

officers about whether they had enough evidence to show that the

Defendant was a prohibited possessor. At the time, the officers

had heard from the Defendant’s girlfriend that the recently

discovered firearm belonged to him, but a direct admission from

the Defendant would of course be stronger evidence. At 9:26

a.m., Agent Kirwan obtained that admission during a custodial

interrogation.

     The government has argued in the alternative that the

“public safety exception” established by New York v. Quarles,

467 U.S. 649 (1984), should excuse any Miranda-free custodial

interrogation about firearms. “Under this exception, overriding

considerations of public safety may justify an officer's failure

to provide Miranda warnings before he asks questions devoted to

locating an abandoned weapon.” United States v. Ferguson, 702

F.3d 89, 93 (2d Cir. 2012) (quoting Quarles, 467 U.S. at 651)

(cleaned up). In this circuit, the exception has been developed

most thoroughly in United States v. Estrada, 430 F.3d 606 (2d

Cir. 2005), and United States v. Ferguson.

     The Estrada and Ferguson courts have emphasized that there

is no template for facts that fit within the exception, so the

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Court is expected to “examin[e] the totality of the

circumstances in a given case.” Ferguson, 702 F.3d at 96

(quoting Estrada, 430 F.3d at 616). Within that analysis, the

circuit court has identified at least three factors that could

favor finding a public safety exception:

     First, the questioning without Miranda warnings related to
     an objectively reasonable need to protect the police or the
     public from any immediate danger. Second, the objective
     facts did not suggest that the questioning was a subterfuge
     designed solely to elicit testimonial evidence from a
     suspect, but instead that the questioning was generally
     targeted at a safety concern. Finally, the questions were
     not routinely put to arrested suspects, but rather were
     supported by an objectively reasonable need to protect
     against a perceived danger.

Ferguson, 702 F.3d at 94 (citing Estrada, 430 F.3d at 611-12)

(cleaned up).

     The Ferguson court explicitly expanded the public safety

exception beyond questioning during the course of arrest.

Ferguson, 702 F.3d at 95 (“While Ferguson is correct that prior

cases have all considered such situations, the reasoning set

forth in those cases applies equally here.”). However, in doing

so, the Ferguson court “recognize[d] that, in certain

circumstances, the passage of time between an arrest and an

interrogation, among other considerations, may diminish the

immediacy of the threat posed by an unaccounted-for firearm” and

found that “the immediacy of threats to public safety is highly

context-dependent.” Id. at 95-96.


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     The timeline of events is important here. The Defendant was

taken into custody around 8:22 a.m. The first firearm was

discovered by 8:40 a.m., and Agents Kirwan and Waithe were made

aware of the discovery almost immediately. Agent Pollard

testified that he “removed the magazine and made sure there

wasn’t any rounds in the chamber just to render it safe” before

the firearm was placed “right back where [the agent] found it.”

The agents did not know there were other firearms in the home.

At 8:51 a.m., the Defendant was driven away from the scene and

transferred to the holding cell in the police station. At 9:14

a.m., Agent Waithe expressed his desire to identify the owner of

the firearm for the purpose of assessing any criminal hits on

it. Around 9:22 a.m., Agent Waithe instructed Agent Kirwan to

speak to the Defendant about the firearm. At 9:26 a.m.,

approximately 45 minutes after a firearm was discovered, the

Defendant was asked about firearms for the first time.

     Agent Kirwan entered the interview room, masked, and

informed the Defendant that they had found a firearm in plain

view and asked him, “My first question is – is there any other

firearms in your house, or is that the only one?” Government

Exhibit 1, Interview Room footage at 9:26 a.m. The Defendant

replied, “There’s more.” Agent Kirwan then asked, “Are they

yours or your girlfriend’s?” The Defendant replied, “They’re

mine.” He then offered, not in response to any specific

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question, that he had obtained them on Snapchat. Agent Kirwan

then told the Defendant about the offer to store the firearms as

a potential condition of release, which the Defendant declined.

     The Court finds that the first question, about the

existence of additional firearms at the house, was reasonably

necessary to protect the officers who remained at the house with

Ms. Arcouette. Agent Waithe and the AUSA he was coordinating

with had made the decision to allow Ms. Arcouette to surrender

at a later date out of consideration for her need to care for

her infants. Agent Waithe and other officers remained at the

scene while they finalized the details of her surrender. The

officers had already encountered one loaded firearm unsecured on

a bookshelf in the living room of the house. And they had

decided to allow Ms. Arcouette to remain in the house, including

in the living room, without handcuffs or other restraint so that

she could tend to her infants. Therefore, it is reasonable for

the officers to ensure that there were no other firearms

accessible to Ms. Arcouette while the agents finalized the

details of her surrender.

     It is true that Agent Kirwan’s questioning of the Defendant

occurred nearly 45 minutes after the first firearm was

discovered, and that delay is much of the reason that this issue

is a close call. At the time the first firearm was discovered,

the Defendant was already in custody in a police vehicle, and it

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is unclear why the officers waited 45 minutes to ask him whether

there were any others, particularly after Ms. Arcouette

reportedly identified the Defendant as the owner of the firearm.

However, given the question about the existence of other

firearms in the home satisfies the Estrada factors and that

Ferguson allows for limited post-arrest questioning about the

location of firearms, the Defendant’s response to this question

may be admitted.

     As a practical matter, Agent Waithe provided Ms. Arcouette

with a copy of her warrant including self-surrender instructions

around 9:30 a.m., and at that point the officers could have

concluded their interactions with Ms. Arcouette and exited the

house. Indeed Agent Kirwan stated that the AUSA with whom he was

coordinating “is not going to want anything to do with” the

first discovered firearm since “it’s clean.” Defendant’s Exhibit

A at approximately 9:34:40. That firearm had been unloaded and

left in place, on the bookshelf in the room in which Ms.

Arcouette was tending to her infants under the watch of

officers. However, moments after providing Ms. Arcouette with

details of her arraignment, Agent Waithe received a call from

Agent Kirwan describing Kirwan’s conversation with the

Defendant. After learning that the Defendant said there were

other firearms in the house, Agent Waithe asked Ms. Arcouette,

who had already invoked her Miranda rights, whether she knew

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where they were. Ms. Arcouette offered a couple of potential

locations, prompting the officers to “sweep” those areas and

recover additional firearms and ammunition. Whether those

actions were necessary and appropriate is not a question before

this Court at this time.

     The Court finds that Agent Kirwan’s continued custodial

interrogation of the Defendant, beyond the initial question

about the existence of additional firearms, may not be admitted.

As discussed above, the existence of additional firearms in the

house may be highly relevant to officer safety, but the

ownership of those same firearms is not. And in contrast with

cases like Estrada, Ferguson, and Quarles, which admitted more

questioning, the officers here were serving a white-collar

arrest warrant, unrelated to any gun crime, and apparently did

not expect to find firearms in the course of their arrest.

     The Defendant has presented evidence showing that

establishing firearm ownership was top-of-mind for the officers

for a purpose separate from immediate officer safety

considerations: the officers sought to determine whether the

discovered firearm was illegally owned. Both Agent Waithe and

Agent Kirwan, along with the local police officers on the scene,

discussed potential criminality associated with the firearm.

After discovering the first firearm, the officers quickly began

speculating about whether the Defendant was a prohibited

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possessor. To establish that offense, they would need to

determine ownership of the firearm. In these circumstances,

asking the Defendant whether he owned the firearm, while he was

in police custody away from the scene, constituted a custodial

interrogation of the Defendant which closely resembled an

investigative interview rather than limited purpose public

safety questioning. Therefore, in the absence of a Miranda

warning, the remainder of Agent Kirwan’s interrogation of the

Defendant must be suppressed.

  II.   Statements related to drug use

     Approximately 35 minutes after the Defendant admitted to

ownership of the firearms, he began experiencing withdrawal

symptoms and briefly spit up. Throughout that episode, he was in

custody, first shackled to the wall in a police station

interview room and later with his hands cuffed to a “belly

chain” restraint in a holding room. After he stopped spitting

up, he was repeatedly questioned about whether he had taken any

illegal substances. This questioning, conducted by a police

officer who was aware of a DEA investigation into the Defendant,

was a pre-Miranda custodial interrogation, and no applicable

exception allows for its introduction. Similarly, the

Defendant’s repetition of his answers to EMTs examining him

under the eye of the same police officer must also be

suppressed.

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     Both parties have acknowledged that there is “surprisingly

sparse” case law that addresses similar situations. ECF No. 19

at 7; see also ECF No. 20 at 7. Similar to above, the government

has argued first that the police officer’s questioning did not

constitute an interrogation under Rhode Island v. Innis, and in

the alternative, that it should be admitted under a “logical

corollary of the public safety exception.” ECF No. 19 at 7.

     For many of the same reasons as the earlier questioning

about firearm ownership constituted an interrogation, so does

the questioning about drug use. As described above, the police

officer conducting the questioning, Lt. Howell, was aware of the

DEA investigation into the Defendant. Lt. Howell was also aware

that a firearm had been found in the Defendant’s home, as he had

been in contact with Agent Waithe and had been sent pictures of

the firearm to run criminal checks. It is not clear from the

record whether Lt. Howell was aware that that the Defendant had

confirmed gun ownership 35 minutes prior, but, given Howell’s

regular contact that morning with Agent Waithe and other

officers, it is a safe assumption that he believed the Defendant

possessed that firearm. Therefore, any admission by the

Defendant that he illegally used a controlled substance would

essentially satisfy the elements of 18 U.S.C. § 922(g)(3).

     Rhode Island v. Innis controls again here. Lt. Howell

“should have known” that his questions about drug use “were

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reasonably likely to elicit an incriminating response.” Innis,

446 U.S. at 302. An “incriminating response” includes not just

“direct confessions” but also “statements which amount to

admissions of part or all of an offense.” Id. at 301 n.5

(quoting Miranda, 384 U.S. at 476-77) (internal quotation

omitted). Clearly, admission of heroin use meets that bar in

this case, and this questioning of the Defendant while he was in

custody constituted an interrogation.

     Turning to the question of whether an exception applies,

the government proposes a “logical corollary” to the public

safety exception which could apply when “the defendant himself

is the person to be protected by the quick and reactive police

action.” ECF No. 19 at 7. Logical corollaries like this are

known sometimes in state court as the “private safety exception”

or the “rescue doctrine,” but the Second Circuit does not appear

to have established such an exception, if it indeed exists in

federal court at all. See United States v. Sims, 2025 WL

1090889, at *7, n.4 (E.D. Mich. Apr. 7, 2025) (“Many state

courts recognize the ‘rescue doctrine’ as a corollary to the

Quarles public safety exception that allows police to question a

custodial suspect without first providing Miranda rights if the

primary purpose of the questioning is to locate or protect a

potential victim in immediate danger.”) (emphasis added); see

also Smith v. State, 46 So. 3d 608, 609 (Fla. Dist. Ct. App.

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2010) (“In such circumstances, where a threat to the safety of

the suspect making the pre-Miranda statement is at issue, some

courts recognize a companion exception to the Quarles public

safety exception, referred to as a private safety exception or a

rescue doctrine.”) However, as the parties acknowledge, there is

“sparse” caselaw at best to support the adoption in this Court

of such a doctrine.

     Were the doctrine available in this case, it is still not

clear whether the questioning of the Defendant would qualify.

The record shows that by the time Lt. Howell began questioning

the Defendant, the Defendant had stopped spitting up and was

well enough to return the table in the room to its original

place and use toilet paper to wipe up his spit. Review of the

available video footage does not reveal an individual

experiencing an acute medical crisis which warrants repeated

questioning about drug use while the requested EMTs arrive.

Further undercutting an argument that it was an acute medical

emergency, during the questioning, the Defendant was moved to a

different holding location within the station and his physical

restraints were replaced with a different type. Throughout, the

Defendant was compliant and responsive, and he is ultimately

left alone in a holding cell where the officer continued to

question him through the closed door. All told, the Defendant

was asked about potential drug use approximately 7 different

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times, punctuated by various other questions about anything he

may have consumed and a promise that any admission would not be

used to “jam you up.” The last round of questions by an officer

which ultimately yielded an admission was conducted while the

officer held a door open for arriving EMTs. Such repeated

custodial interrogation about an element of a crime which

officers were actively investigating may not even qualify for a

private safety exception, should one be available in this Court.

     Finally, the government argues that even if the Defendant’s

statements to Lt. Howell are inadmissible, his repetition of

those statements to the EMTs should be admitted. To support that

argument, the government cites to Illinois v. Perkins, 496 U.S.

292 (1990) which allowed for an undercover officer posing as a

fellow inmate to question a suspect in custody without Miranda

warnings. The Perkins Court premised that holding on the grounds

that “questioning by captors, who appear to control the

suspect's fate, may create mutually reinforcing pressures that

the Court has assumed will weaken the suspect's will, but where

a suspect does not know that he is conversing with a government

agent, these pressures do not exist.” Id. at 297. That premise

plainly does not align with this case, where, after the

Defendant admitted to drug use, the officer told him to tell the

EMTs about it. Approximately 15 seconds later the EMTs arrived,

and police officers remained present for the Defendant’s

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interaction with the EMTs and participated in the conversation.

In these circumstances, the conversation with EMTs while the

Defendant was still in restraints did not suddenly stop being a

custodial interrogation for the purposes of Miranda, and a

repeated confession, at the direction of an officer, cannot be

considered voluntary and admissible. The other out-of-circuit

Pennsylvania case and West Virginia state court case cited by

the government are equally distinguishable on the facts from

this one since the individuals in those cases were not in

custody. ECF No. 20 at 8.

     The government’s position is in essence an argument for a

variation of a two-step interrogation when medical professionals

are involved. The traditionally disfavored two-step involves

interrogating a suspect without an appropriate Miranda warning,

obtaining a confession, and then delivering the warning before

re-obtaining the confession. Missouri v. Seibert, 542 U.S. 600

(2004) (limiting two-step interrogations). Here, the officer

interrogated the Defendant about his drug use without a Miranda

warning, and then, after obtaining a confession, told him to

repeat that confession to EMTs. The interaction with the EMTs

immediately followed the initial confession, and police officers

remained present throughout. In that scenario, it seems unlikely

that the Defendant would have believed that “he could choose to

stop talking even if he had talked earlier[.]” Seibert, 542 U.S.

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at 612 (plurality opinion). Sanctioning such a practice and

allowing repeated statements to medical professionals to “cure”

a Miranda violation could have significant unintended

consequences.

     For all of these reasons, the motion to suppress

Defendant’s statements related to drug use is granted.

                               Conclusion

     For the reasons above, the Defendant’s statement regarding

the existence of additional firearms at his home may be

admitted, but the remainder of his challenged questioning while

in custody prior to receiving a Miranda warning may not.

Therefore, the Defendant’s motion, as clarified in his

Supplemental Briefing on Pending Motion to Suppress, ECF No. 24

at 14, is granted in part and denied in part.

     DATED at Burlington, in the District of Vermont, this 5th

day of June 2025.

                                 /s/ William K. Sessions III
                                 Hon. William K. Sessions III
                                 U.S. District Court Judge


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