Defendant (1) DYLAN WOODHOUSE represented by ROBERT A. LEVINE
Plaintiff USA represented by DAVID B. JOYCE U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE
RECOMMENDED DECISION ON MOTION TO SUPPRESS
John H. Rich III United States Magistrate Judge
Dylan Woodhouse, charged in an information with knowing and intentional possession with intent to distribute a mixture or substance containing lysergic acid diethylamide (“LSD”) in violation of 21 U.S.C. § 841(a)(1), Information (ECF No. 25), moves to suppress evidence taken from the car he was driving on July 9, 2013, by federal and state law enforcement officers. Motion to Suppress (“Motion”) (ECF No. 32) at 1. An evidentiary hearing was held before me on May 12, 2014, at which the defendant appeared with his attorney. The parties submitted an extensive factual stipulation (Government Exhibit 1). The government presented a single witness and no exhibits. The defendant presented no witnesses and no exhibits. After both sides rested, counsel for each argued orally. I recommend that the following findings of fact be adopted and that the motion be denied.
I. Proposed Findings of Fact
On July 9, 2013, law enforcement authorities were monitoring incoming and outgoing calls to a target telephone number used by Robert Evon, when they intercepted a series of text messages exchanged between the defendant and Evon, who lived on Spring Street in Portland, Maine. The messages suggested that a drug transaction was scheduled to take place at Evon’s residence. Agents also intercepted text messages between Evon and his wife about the pending transaction.
The agents established surveillance of Evon’s residence and observed a tan Mercedes with a Maine registration driven by the defendant stopping at the residence. Approximately four minutes after he arrived at the residence, the defendant left in the same car, which he was operating with the permission of the owner. The time was approximately 4:25 p.m.
Agents maintained constant surveillance of the defendant’s car as it drove approximately one mile to the Evergreen Garden Center in Portland, where the defendant parked it in the parking lot at 301 Forest Avenue. The parking lot was small and congested. As the defendant got out of the car, he was approached by Agent Paul Buchanan of the United States Drug Enforcement Administration. Buchanan asked the defendant about his recent whereabouts and about an object he observed in the defendant’s left pants pocket. The defendant stated that he had done nothing wrong and asked why Buchanan was harassing him.
The defendant produced the object from his pocket for inspection. It was a prescription bottle that contained a small marijuana bud but no pills. The defendant, who is permanently disabled from a spinal cord injury, stated that he was a medical marijuana patient and produced his medical marijuana certificate. Following a discussion about the amount of marijuana inside the vehicle, the defendant was asked for his consent to search the vehicle. He declined to consent, but offered to get the marijuana out of the vehicle to show to the agent. This offer was declined.
Buchanan then stepped away to call Assistant United States Attorney David Joyce to seek advice regarding probable cause to search the vehicle, and whether to seek a search warrant. Someone from the United States Attorney’s Office called the office of the Cumberland County District Attorney to ask the same questions. Buchanan was told that both offices advised that, while obtaining a search warrant was always prudent, there was probable cause to search the car without a warrant in this case. Buchanan preferred not to apply for a search warrant, as that could tip off Evon to the ongoing investigation.
Buchanan then advised the defendant that he was not under arrest and was free to go but could not take the vehicle. He asked the defendant for the keys to the vehicle, but the defendant refused, saying that he would not consent to a search of the vehicle. At this point, a group of onlookers had gathered, the defendant and an employee of the store began using their cell phones to record video of any search, and the store owner expressed frustration that the Mercedes and the agents’ vehicle were blocking access to his store. Buchanan decided to have the vehicle towed to a nearby location away from the business and the onlookers, where the agents could search it.
A tow truck was called at a time between 5:15 p.m. and 5:30 p.m., and while they waited for the truck, Buchanan again asked for the keys to the car, and the defendant again refused. A flatbed trailer arrived at approximately 6:30 p.m., and the defendant again refused a request for the keys to the car so that it could be driven onto the flatbed. The car was secured on the flatbed, which drove to the parking lot of AAA in Portland. Buchanan chose this site because it was fairly close, there was plenty of room in the parking lot, the federal ATF had an office there, and a crowd of onlookers was not likely to gather.
The car was searched while it sat on the flatbed in the AAA parking lot. The defendant was present during the search. From the car, the agents seized a plastic container containing approximately two ounces of marijuana, a digital scale, several pieces of “chocolate”” in a plastic bag, and a small blue eye dropper bottle that contained a clear liquid. When asked, the defendant said that the liquid was a marijuana-based tincture. Subsequent analysis determined that it was LSD.
At approximately 7:10 p.m., the vehicle was released to the defendant, who acknowledged that it had not been damaged. The medicinal marijuana and the digital scale were returned to the defendant following the ...