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United States v. Garcia

United States District Court, D. Maine

March 28, 2018



          D. Brock Hornby United States District Judge

         On March 14, 2018, I conducted an evidentiary hearing on the defendants' motion to suppress. On March 27, 2018, I heard oral argument on the motion. There is really no dispute about the underlying facts, although the parties disagree over their significance and what conclusions I should draw. Based on the hearing and the arguments, I make the following factual findings, and Deny the motion to suppress.


         In June of 2017, MDEA Special Agent Carleton had been surveilling a target-someone he had arrested a year earlier for drug trafficking who was released on bail and was under suspicion of additional trafficking. Carleton tailed the target to Nason Street in Sanford, Maine on June 8 for what Carleton believed to be a drug pickup.

         On June 19, Carleton arrested him. The target had in his possession 4 fingers (c. 40 grams) of heroin.[1] After consulting his lawyer, the target agreed to cooperate. I shall call him CD1 (for “cooperating defendant”). CD1 gave Carleton a physical description of his source for drugs, told him where the source lived, the source's first name, and a description of his vehicle. CD1 confirmed that the June 8 trip Carleton had observed was in fact to pick up 200 grams of heroin from the source on Nason Street, Sanford. He told Carleton that within the previous months he had observed substantial quantities of heroin and cocaine at the Nason Street address. He consented to Carleton viewing his cellphone and identified his source as “Connect” on the cellphone. He also told Carleton that he believed Connect's source of supply was a Hispanic male from Massachusetts. Carleton photographed the cellphone screen showing text messages between CD1 and Connect on June 19, admitted as Exhibit 1A. In one message, Connect said “Ya only hv like 5 could spare right now hopefully tomorrow be good.” CD1 said that meant Connect had 5 fingers of heroin or about 50 grams, but was hopeful he would have more the next day that he could sell to CD1.

         Agents obtained a search warrant for the source's Nason Street premises from a state judge. On June 20, surveillance of the Nason Street residence started around lunchtime. Task Force Officer Lapierre was part of that surveillance team. Meanwhile, Carleton instructed CD1 to try to arrange a transaction with Connect. (CD1 was in custody at Cumberland County Jail, and Carleton worked with him in the Sheriff's Office.) Carleton listened to CD1's phone calls and photographed the texts between CD1 and Connect. The texts were admitted into evidence as Exhibits 1B through 1I. In response to a text from CD1 inquiring whether Connect was “good For 25 instead, ” followed by another text “If not 20 is cool. Just going through shit quick, ” Connect responded “Ya if he gets here in time, ” Ex. 1F, 1G, and later, “Only hv couple fing[ers] if he don't show up.” Ex. 1H. Another text said that Connect's source was “on way from Connecticut.” Ex. 1E. During one of the phone calls, Connect referred to the transaction between Connect and his source as for “30 grand.”

         Seeing a vehicle with Massachusetts plates arrive at Connect's residence in Sanford late in the evening of June 20 and an individual go inside the residence, agents executed the state warrant, believing that Connect's source had arrived. They quickly learned that it was only a teenager who had come to play video games with another teenager on the premises. But they detained Connect and he in turn agreed to cooperate. I shall refer to him as CD2. Law enforcement had no previous dealings with CD2. CD2 told Task Force Officer Lapierre that he had placed a large order that was going to be delivered to his house from an out of state source, that the source was close by, arriving in 10 minutes, that CD2 had the money for the transaction, that his source's vehicle would pull into the driveway or park immediately in front of the house, that the drugs would be concealed in the engine compartment, usually in an air vent or air intake, and that previously his source used a “a dark colored SUV possibly a Jeep.”[2] There was no evidence that CD2 identified the state of registration for the vehicle his source had driven in the past.

         Realizing that CD2's source had not arrived but that his arrival was imminent, law enforcement did not have time to search or even secure the premises, but Maine State Trooper Adam Schmidt did observe heroin fingers in plain view. Law enforcement then promptly removed their marked vehicles and left the premises or hid. It was now around 11 p.m. Lapierre stayed in the basement with CD2. Much of their interaction was recorded and admitted in evidence as Exhibit 2. CD2 also gave Lapierre access to his cellphone and gave him the password, and Lapierre accessed previous texts between CD2 and his source, whom CD2 identified as “B Man” in the texts. The texts were admitted into evidence as Exhibit 3. The last text message, which CD2 received within 15-20 minutes before Lapierre saw it, referred to 30, 850, i.e., a number consistent with the “30 grand” Carleton had heard Connect mention as the size of the impending transaction in a phone call between CD1 and Connect/CD2. At Lapierre's instructions, CD2 phoned his source using the speakerphone function. Lapierre saw that CD2's source's cellphone area code was New Hampshire, but CD2 told him that the source was not from New Hampshire but from somewhere around Lawrence, Massachusetts. Lapierre listened to the call on the speakerphone. The source said that he was on the “long road”-which CD2 identified as Route 202, a back route from Massachusetts through New Hampshire that avoided the interstate-and that he was 10 minutes away.[3]

         Soon and within the 10 minutes, B Man called CD2 to say that he was right outside and that CD2 needed to move the red car at the end of the driveway. Lapierre had observed previously that a red car was parked at the end of the driveway. CD2 told Lapierre “They're here. They right f***in' out front.” Ex. 2. At the time, law enforcement observed a silver Dodge pickup, which had come down Nason Street from the direction of Route 202, stop briefly in front of the house, and then proceed in the direction of Main Street. A few minutes later, it returned in the opposite direction and stopped directly in front of the house, but still on the public street, adjacent to the curb. During this short sequence of events, CD2 told Lapierre that his source had on occasion used a Dodge truck or silver truck to deliver the drugs, and that this was he.

         Lapierre proceeded to order the seizure of the vehicle and its occupants.

         Maine State Trooper Adam Schmidt was part of the surveillance team. He was present both to conduct any necessary traffic stop and, as a qualified K9 handler with his dog Ibo, to conduct a sniff for drugs. After leaving the house upon discovering that the source had not yet arrived when the state search warrant was initially executed, Schmidt stationed his marked cruiser on a side street, out of sight. When he received word to conduct the stop, he activated his dash camera. The first 30 minutes or so of the resulting video, introduced into evidence as Exhibit 8, show the takedown and the dog sniff.

         There were about 10 agents, all armed with guns drawn. The agents were shouting as the stop occurred.

         Trooper Schmidt approached the driver's side, ordered the driver (the defendant Rosario-Diaz) out of the vehicle and, when he did not immediately get out, pulled him out and in Schmidt's words “guided him to the ground.” The defendant's lawyer had argued in his legal memorandum that the defendant was “forcibly removed and thrown to the ground, ” but there was no testimony to that effect, only the Trooper's testimony just quoted. The video shows that Schmidt did forcibly pull Rosario-Diaz out and onto the ground, but it does not show violence or excessive force. It shows Schmidt cuffing Rosario-Diaz, patting him for weapons while he was on the ground, telling him to relax, and finally helping Rosario-Diaz get to his feet. Schmidt told Rosario-Diaz that he was detained but did not give him Miranda warnings.

         MDEA Special Agent McDonald detained the passenger in the front seat (the defendant Garcia), told him he was detained and gave him Miranda warnings. Garcia declined to talk. McDonald then turned his attention to Rosario-Diaz, [4] gave him Miranda warnings, and Rosario-Diaz agreed to talk. The interview was recorded and introduced into evidence as Exhibit 7.

         About 17 minutes after Trooper Schmidt's dash cam was activated, [5] and while Agent McDonald was interviewing the defendant Rosario-Diaz, Trooper Schmidt had his K9 Ibo execute a drug sniff of the vehicle exterior. Ibo alerted to the presence of drugs near the front of the vehicle, consistent with CD2's statement that they were usually hidden under the hood near the air intake.[6]Agents raised the hood and discovered large quantities of a heroin/fentanyl mixture and cocaine.

         The vehicle containing the drugs was a rental car from Massachusetts, but had Maine registration plates. The hearing did not reveal when law enforcement noticed the Maine plates, but I assume it was immediately (just as they noticed the Massachusetts plates of the vehicle when the innocent teenager arrived earlier).[7] The rental agreement and bill were admitted as Exhibit 10. Neither defendant was the renter (there was no evidence of the identity of the renter aside from the agreement itself), neither defendant was an authorized driver under the rental contract, and the rental contract was only for June 12-13, not extending to June 20. The bill shows that the rental was returned on June 27.

         The defendants have moved to suppress the drugs, a cellphone discovered in the vehicle, and Rosario-Diaz's statements to Agent McDonald.

         The government responds that the defendants have no standing, that the agents had probable cause to seize the vehicle and search its contents, that the state search warrant separately gave them that authority, that at the very least they had authority to conduct a Terry stop and a dog sniff, ...

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