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United States v. James

United States District Court, D. Maine

May 1, 2018

NERA JAMES, Defendant.


          George Z. Singal United States District Judge

         Before the Court are Defendant's two Motions to Suppress (ECF Nos. 34 & 40). The Court held an evidentiary hearing on the motions on April 4, 2018, at which officers Brian Beauparlant, Nicholas Gagnon, and Zachary Provost testified. After carefully considering Defendant's Motions, the evidence presented, and the briefing from both sides, including the post-hearing briefing, the Court DENIES the Motions.


         Over the course of several months in late 2016, law enforcement received information about a fentanyl distributor nicknamed “King” operating in the Lewiston/Auburn area. Specifically, in October through December 2016, Maine Drug Enforcement Agency (“MDEA”) Special Agent Brian Beauparlant and Lewiston Police Department (“LPD”) officer Zachary Provost received information from at least four separate sources that “King, ” a black male from New York in his thirties with noticeable blemishes on his face (1) resided at 91-93 Walnut Street in Lewiston, a multi-unit building at the intersection of Walnut and Shawmut Streets; (2) that he was trafficking fentanyl and sold it in small wax baggies known as “tickets”; (3) that he would go to New York every few weeks and bring back a substantial amount of drugs; (4) that he would conceal drugs on his person when he was in transit or outside his apartment; (5) that he would meet his customers in the common entryways, stairwells, or hallways of different apartment buildings in the neighborhood around Walnut Street; and (6) that his fentanyl had been linked to several overdoses, including deaths.[1] The officers believed that these sources had all either purchased drugs from “King” or had witnessed others purchasing drugs from him.

         On December 19, 2016, during an unrelated criminal investigation, MDEA Special Agent Nicholas Gagnon was speaking with a known drug user and low-level drug dealer in the hallway of her apartment building on Pine Street in Lewiston, one street over from Walnut Street, when he observed a second woman enter the hallway through the building's unlocked front door. When the first woman asked the second what she was doing in the building, the second woman, who was a known drug addict, indicated that she had been sent to the building by an acquaintance, whose name Gagnon recognized as being involved in drug activity, to meet someone. Defendant James then walked into the hallway after entering through the unlocked front door and began to say something to the second woman; however, he abruptly stopped talking and walked out of the building when he observed Gagnon, who had his badge displayed. Gagnon observed that James matched the physical description of “King” and the building tenant subsequently confirmed that he was “King.” Gagnon asked the tenant if she purchases drugs from “King” and she responded that she does not because she does not use fentanyl. She further described the color and lack of odor of the fentanyl distributed by “King.”

         The next day, on December 20, 2016, at approximately 4:45 p.m., Beauparlant, Gagnon, Provost, and MDEA Special Agent Nick Gulliver were in an unmarked rental minivan with Provost driving on Shawmut Street in Lewiston, in the vicinity of many of the buildings where “King” was alleged to meet customers to sell drugs and only a few blocks from 91-93 Walnut Street. It was dusk. The officers observed a man in dark clothing walking in the middle of the roadway in the direction they were driving. The sidewalks on Shawmut Street were accessible at the time and the officers collectively believed that the man was causing a hazard to drivers and to himself, especially considering that he was approaching the well-trafficked intersection with Sabattus Street.

         At this point, the exact order of events is unclear. Beauparlant testified to the best of his recollection that Gagnon or Provost called to the man to get out of the street when the vehicle was behind him, the man turned, and the officers then recognized him as “King.” Gagnon testified to the best of his recollection that the officers pulled past the man, recognized him as “King, ” stopped the vehicle, and exited, before telling him to get out of the road. Whatever the exact order of events, by the time the officers passed the man and pulled the minivan over, they had recognized the man as “King.” The officers parked the vehicle a short distance up the street from “King” and all four officers exited to speak with him. The officers were in plainclothes but had their credentials on lanyards around their necks and identified themselves as law enforcement. Although they were armed, their duty weapons were concealed.

         Gagnon and Provost initially approached who they believed to be “King, ” Defendant James, advised him to not walk in the road, and asked him for identification. James was unable to produce a form of identification but provided his name and date of birth and stated that he was from Brooklyn, New York. Provost noticed that James had a small knife clipped to his pants pocket and informed James that he was going to take the knife and return it at the conclusion of their interaction simply to ensure officer safety. Provost then removed the knife from James with his consent but did not otherwise search him for weapons. After removing the knife, Provost stepped back ten or fifteen feet towards the officers' vehicle and called in James's name and date of birth to confirm his identity and to perform a routine check for outstanding warrants or conditions of release.

         Meanwhile, Gagnon talked to James about the necessity of walking on the sidewalk. Based on James's suspected involvement in drug trafficking, his possession of a knife, and his inability to provide a form of identification, Gagnon asked James if he could pat him down for other weapons. James said that he could, raised his arms from his sides, and permitted Gagnon to pat him down. Gagnon did not locate any other weapons. Throughout these initial interactions, James's cell phone was ringing constantly, which the officers believed to be commonly indicative of drug activity based on their experience.

         James was holding a white plastic shopping bag in his hand that contained a tightly wrapped, dark-colored item or substance with a rigid texture.[2] Gagnon asked James what was in the bag and James responded hesitantly that it was a bag. Based on the color and shape of the item in the bag and Gagnon's belief that it could be a package of tightly wrapped marijuana buds, Gagnon asked James if the bag contained “weed” (marijuana) and told him that “weed” is not a big deal. James responded that the bag contained marijuana. When Gagnon reached for the bag, James moved the bag out of his reach. Gagnon inquired whether James had a medical marijuana card, and James responded that he did not. Gagnon then grabbed the bag from James's hand and inspected its contents. The inspection revealed that the package inside the white plastic shopping bag was a dark plastic shopping bag containing a sock filled with rice. Inside the sock, Gagnon discovered a plastic baggie containing numerous “tickets” of what he suspected to be heroin or fentanyl.[3]

         To the point that Gagnon grabbed the bag from James, the interaction with James was conversational, not confrontational. James was polite and cooperative and the officers did not surround him.[4] However, after Gagnon took the bag from James, his demeanor changed; James became visibly nervous and appeared to be looking around as if preparing to flee the scene. For this reason, the officers encircled him while Gagnon inspected the bag. After Gagnon discovered the suspected contraband, the officers arrested James for unlawful trafficking in scheduled drugs and seized his cellular phone. Although it is not entirely clear exactly at what point Provost received confirmation of James's identity from dispatch, Provost was still waiting for the information at the time Gagnon seized the bag. The entire interaction from the time the officers pulled over to the arrest lasted no more than five minutes.

         Gagnon recited the Miranda warnings to James and he submitted to limited questioning. When asked where he lived, James quickly responded “Walnut” before changing his answer to an address on Pine Street when he was asked a follow-up question.

         In January 2017, Gagnon interviewed a source of information, a well-known drug user, who identified “King” as a drug trafficker, reported that she had purchased drugs from him on numerous occasions, and disclosed that he resided at 91 Walnut Street on the second floor. This source provided a physical description of “King” that matched James and identified a photograph of James as “King.” The source further indicated that “King” had already been arrested. Also in January 2017, Gagnon executed a search warrant on the phone seized from James at his December arrest. Gagnon observed numerous text messages that he believed were drug-related, including text communications in which apparent drug customers referred to the text recipient as “King.” Gagnon also observed at least one text message in which the phone user referred to himself as “Dante.” On February 6, 2017, James posted bail and was released subject to conditions, including that “[i]n order to determine if I have violated any prohibitions of this bond regarding alcoholic beverages, illegal drugs, or dangerous weapons, I will submit to searches of my person, vehicle and residence . . . at any time without articulable suspicion or probable cause.” (ECF No. 40-2, PageID # 79.)

         In February or March of 2017, Gagnon received information that a man known as “Dante, ” who was arrested in December with a large amount of “heroin, ” was the source of supply for two women, known drug users in the area. Also in March 2017, Gagnon spoke with a source of information who had been arrested for drug trafficking. The source informed Gagnon that a person she knew as “Dante” was a heroin/fentanyl trafficker and provided a physical description matching James, including mentioning the skin condition on his face. Gagnon also spoke to another source of information who was concerned that the tenant on the second floor of 91 Walnut Street was storing drugs in a shed on the back porch behind that tenant's unit and might also be storing drugs in the shed behind the source of information's unit on the 93 Walnut Street side.

         In March or April of 2017, Beauparlant spoke with the owner of the 91-93 Walnut Street building. The owner provided information that James was the named tenant on the lease for the second floor apartment in 91 Walnut; that James had been living in the apartment; and that since his release from custody in February 2017, there had been an increase in traffic to the apartment that was consistent with drug activity.

         On May 3, 2017, while conducting unrelated enforcement operations at 91 Walnut Street, Gagnon and Beauparlant, along with up to three other officers, decided to perform a bail compliance check for James.[5] The second floor apartment lights were on and the officers heard music and voices coming from inside the unit. Beauparlant positioned himself on the building's rear porch area/fire escape with another officer to prevent potential flight. He also checked inside the unlocked storage shed adjacent to the porch area and directly behind the apartment to see if anyone was inside. Meanwhile, Gagnon knocked on the apartment's front door and announced that it was law enforcement. Beauparlant then observed a rear window slowly open and James start to climb out of the window onto the porch area. Beauparlant identified himself as law enforcement and directed James to stop; however, James attempted to retreat back into the apartment through the window. Beauparlant grabbed James and secured him in handcuffs. The officers observed a second occupant inside the apartment and Beauparlant directed him to open the apartment front door, which the second occupant did.

         Gagnon and Beauparlant entered the apartment through the front door with James in handcuffs. The officers informed James that they were conducting a bail compliance check pursuant to the search condition of his bail, and James did not dispute that he was subject to that condition. The officers then conducted a search of the apartment, the rear porch area, and the shed. Inside the apartment, the officers found a large sum of money, a digital scale, and a couple of cellphones. Inside the shed, the officers found a sock containing live ammunition on the floor. In a void in the shed wall, the officers found a stolen shotgun wrapped in a blanket; two handguns, one fully loaded; a bag containing 600 “tickets” of fentanyl; a small box containing a bag with four grams of crack cocaine and a bag with four grams of heroin; and another digital scale.

         Each floor of the 91-93 Walnut Street multi-unit building has a common rear porch area or fire escape that connects the units on the 91 and 93 sides. In addition to being accessible from the rear windows of each unit, the rear porch area on the second floor can be accessed from an interior common hallway, as well as from the porch areas on the floors directly above and below. There is a storage shed on each opposite end of the porch area. The shed adjacent to James's apartment was unlocked on the day of the bail ...

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