United States District Court, D. Maine
ORDER ON DEFENDANT MacKENDY THENOR'S MOTION TO SUPPRESS EVIDENCE
JON D. LEVY, District Judge.
Mackendy Thenor is charged in Count Seven of the Second Superseding Indictment with knowingly and intentionally using a cellular telephone to facilitate a drug distribution conspiracy, in violation of 21 U.S.C. § 843(b). ECF No. 531 at 5. He seeks suppression of all evidence obtained during a March 3, 2014, traffic stop in Lewiston, Maine, and all evidence obtained as a consequence of the traffic stop, including a torn plastic bag retrieved from his person after his arrest and any evidence relating to a positive alert by a police dog after his arrest. ECF No. 440 at 2. Thenor also seeks to suppress any and all records or recordings of a telephone conversation between himself and co-defendant Romelly Dastinot, which took place after Thenor's release on the evening of March 3. Id. For the reasons explained below, I deny the motion.
I. FACTUAL BACKGROUND
In the early evening hours of March 3, 2014, Corporal Michael Dumond of the Lewiston Police Department was parked in a marked police cruiser in the area of Birch and Bartlett Streets in Lewiston. Corporal Dumond received radio communications asking him to stop a vehicle bearing Maine license plate 8714UA for the purpose of identifying the driver. The request came from Lewiston Police Officer Tyler Michaud and other officers who were conducting surveillance of an apartment building on Knox Street for suspected drug activity. The vehicle in question had been observed arriving at the apartment building and then departing after about ten to fifteen minutes both that day and the day before by officers conducting surveillance.
Dumond spotted and then followed the vehicle. He observed the vehicle travelling at a high rate of speed. At the intersection of Birch and Bartlett Streets, he observed the vehicle drive past a stop sign without stopping. Dumond activated his cruiser's lights and siren, and performed a traffic stop.
Upon approaching the driver's side of the vehicle, Dumond observed that the operator, whom he subsequently identified as Thenor, was extremely nervous. Thenor was shaking to such a degree that he had difficulty removing his license from his wallet. Thenor acknowledged that he had been speeding and, when questioned, explained that he had gone through the intersection without stopping because his car was prone to overheating. Thenor stuttered when he spoke, further suggesting to Dumond that Thenor was extremely nervous. Dumond also smelled marijuana from the vehicle's passenger compartment. When asked about the smell, Thenor produced a medical marijuana prescription card and a small plastic bag containing what appeared to be marijuana.
Dumond observed Thenor reaching either into his pants pocket or toward an area below his car seat on approximately three or four occasions before Thenor exited his vehicle. On each occasion, Dumond directed Thenor not to do that and to keep his hands visible where Dumond could see them. Thenor repeatedly failed to abide by these instructions, which made Dumond nervous and caused him to suspect that Thenor might possess a weapon. Dumond called for back-up assistance and ordered Thenor out of his vehicle.
As Thenor exited his vehicle, Dumond observed him reach toward his pants. Dumond told Thenor he was going to pat him down and Thenor again reached for his pants at the waist. Dumond responded by grabbing Thenor's arm, but Thenor resisted and continued to reach toward his waist, at which point a struggle ensued. Dumond held onto Thenor's arm and shoulder as Thenor attempted to get away. In the process, Dumond observed Thenor drop a clear plastic bag to the ground. Thenor continued to resist and attempt to get away even after a back-up officer arrived on the scene and pepper-sprayed him twice. With the assistance of the back-up officer, one handcuff was placed on Thenor's wrist, but Thenor broke free before his other wrist was secured. At this point, a third officer arrived on the scene. Thenor stopped struggling after the third officer threatened him with the use of a Taser gun. Thenor was arrested for refusing to submit to detention and was taken into custody.
The entire stop lasted approximately five minutes.
II. LEGAL ANALYSIS
Thenor argues that the traffic stop and search constituted an illegal search and seizure under the Fourth Amendment of the United States Constitution. ECF No. 440 at 1. He asserts that "any number of innocent explanations exist" for his presence at the Knox Street apartment building, and that it was neither illegal nor suspicious for him to have visited that location more than once. Id. at 5. Thenor also claims that the traffic stop performed by Dumond was "entirely pretextual, " that Dumond lacked any articulable suspicion of any wrongdoing, and that Dumond's incident report "offers no viable basis for any arrest." Id. at 3 & n.3. As to his reported nervousness during the traffic stop, Thenor notes that "nervousness is inherent in police interactions with many... citizens (especially black citizens engaging with white officers in Lewiston)[.]" Id. at 3 n.3. Thenor also notes that he produced a valid medical marijuana prescription card when Dumond detected the apparent odor of marijuana. Id.
A. The Traffic Stop
"A traffic stop constitutes a seizure of everyone in the vehicle' for purposes of the Fourth Amendment and thus must be supported by reasonable suspicion that a traffic violation has occurred." United States v. Chaney, 584 F.3d 20, 24 (1st Cir. 2009) (citing Brendlin v. California, 551 U.S. 249, 255 (2007)). Such a reasonable suspicion was present in this case. Dumond testified at the suppression hearing that he observed Thenor's car travelling at a high rate of speed, and then saw it pass a stop sign at the intersection of Birch and Bartlett Streets without stopping. Both of these traffic infractions provided Dumond with "an independently sufficient ground for stopping the car." United States v. Arnott, 758 F.3d 40, 44 n.5 (1st Cir. 2014). Even if the stop was motivated by the decision of the police to stop Thenor's vehicle to identify the driver, such a pretextual stop is permitted so long as there is a ...