United States District Court, D. Maine
ORDER ON MOTION FOR CLARIFICATION OF SUPPRESSION
ORDER
D.
Brock Hornby United States District Judge.
In a
bench ruling, I previously denied the defendants' motions
to suppress after conducting an evidentiary hearing. I
concluded that law enforcement agents had reasonable and
articulable suspicion sufficient to justify a Terry
stop of the vehicle in which the defendants were passengers,
and that the defendants were arrested after probable cause
developed through a succeeding drug dog sniff and other
observations. Oral Order (ECF No. 55). The defendants have
asked me now to confirm that, for purposes of appeal, they
adequately preserved a de facto arrest
argument-i.e., that they were actually
arrested, not merely detained, at the outset of the
stop. Mot. for Clarification (ECF No. 89); Mot. Joined (ECF
No. 90).
It was
not apparent from the legal memoranda filed before the
evidentiary hearing that the defendants were making such an
argument. Instead their written legal arguments focused on
the reliability of the information law enforcement had
obtained from confidential informants and argued that it was
not enough to justify a Terry stop of the vehicle in
the first place. They also argued there was not probable
cause for an arrest after the detention and dog
sniff. But at the beginning of the evidentiary hearing, the
defendants' lawyers asked me to pay particular attention
to a video of the defendants' encounter with law
enforcement during the stop, asking me to view it after the
testimony was complete.
I
watched the video and at the later oral argument, I
questioned defense counsel about what it was they especially
wanted me to observe in the video. They argued that the
intrusiveness of what took place required law enforcement to
meet the higher standard of probable cause, not just
Terry's reasonable and articulable suspicion for
a stop. In response, the Assistant United States Attorney
expressed doubt that the defendants had previously raised a
de facto arrest issue (the defendants' lawyers actually
never used the term “de facto arrest”), but
agreed that as of then the defendants were making that
argument and asked for an opportunity of further briefing if
I were inclined to entertain the de facto arrest issue.
Thereafter (and without further briefing), I ruled from the
bench that a Terry stop, not an arrest, occurred
initially, and that the arrests occurred later, after the
positive canine alerts.
Tragically
and unexpectedly, the defendant Artis's lawyer
subsequently died, and the Court appointed new counsel to
represent that defendant. At her request I approved the
preparation of a transcript of the suppression hearing, the
argument, and bench ruling. Upon reviewing it, she became
concerned whether the de facto arrest had been sufficiently
raised for appeal purposes and at her request I conducted a
conference of counsel. Thereafter both defendants filed
“motions for clarification regarding arguments
presented and considered on the motions to suppress, ”
the government filed a response (ECF No. 92), and the
defendants filed reply memoranda (ECF Nos. 95, 96). Only in
the latter two sets of filings did the parties address
caselaw on what it takes to convert a Terry stop
into a de facto arrest.
Having
now read that caselaw and in particular United States v.
Jones, 700 F.3d 615 (1st Cir. 2012), United States
v. Chaney, 647 F.3d 401 (1st Cir. 2011), United
States v. Fornia-Castillo, 408 F.3d 52 (1st Cir. 2005),
and United States v. Acosta-Colon, 157 F.3d 9 (1st
Cir. 1998), I conclude that in my original ruling, I did not
fully appreciate the nature of the de facto arrest argument
as it has now developed. I Reaffirm my
original ruling that there were sufficient grounds for an
initial Terry stop of the vehicle. Moreover, a
canine and his Trooper handler were quickly on the scene,
there was no delay, and the dog alerted to drugs on both
defendants. But before the dog sniff, the video reveals that
several law enforcement agents approached the stopped vehicle
on the side of the highway, at least one agent standing
behind the car with his gun drawn. Two agents on the
driver's side of the car became agitated when the
passengers did not at first unlock the doors or windows. One
agent was about to use an instrument to break a window when
the vehicle was finally unlocked. The agents shouted at the
occupants to raise their hands and to place their hands on
their heads. One defendant was pulled from the driver's
side of the car and around to the rear of the car, handcuffed
and patted down while still standing. The other was taken to
the ground from the other side of the car and cuffed and
patted down on the ground before the agents eventually stood
him up.
So was
that a de facto arrest? “Where an investigatory stop is
justified at its inception, it will generally not morph into
a de facto arrest as long as ‘the actions undertaken by
the officer[s] following the stop were reasonably responsive
to the circumstances justifying the stop in the first place
as augmented by information gleaned by the officer[s] during
the stop.'” Chaney, 647 F.3d at 409
(citation omitted). “[A]ssessment of whether the agents
exceeded the permissible scope of intrusion is a difficult,
fact-intensive inquiry.” Jones, 700 F.3d at
624. The detention here was very short (about six minutes)
until the dog sniff, which furnished probable cause to
arrest, began. Brevity is important. United States v.
Sharpe, 470 U.S. 675, 685 (1985); Chaney, 647
F.3d at 410; 4 LaFave, Search & Seizure § 9.2(f)
(5th ed.). And Jones says that “measures such
as the use of handcuffs, drawn weapons, placing suspects face
down on the ground, the presence of multiple officers, and
police cruisers positioned to block exits, do not necessarily
turn a stop into a de facto arrest.” Jones,
700 F.3d at 625 (footnotes omitted); accord
Acosta-Colon, 157 F.3d at 18, (“[T]he use of
handcuffs in the course of an investigatory stop does not
automatically convert the encounter into a de facto
arrest.”); Fornia-Castillo, 408 F.3d at 64
(“[N]either the use of handcuffs nor the drawing of a
weapon necessarily transforms a valid Terry stop
into a de facto arrest.”).
But at
the same time, “to say that the use of physical
restraints is not necessarily inconsistent with a
Terry-type stop does not imply that law enforcement
authorities, acting on less than probable cause, may handcuff
suspects as a matter of routine.”
Acosta-Colon, 157 F.3d at 18. The “government
bears the burden of proving that the seizure was sufficiently
limited in its nature and duration to satisfy the conditions
of a Terry-type investigative stop, ”
id. at 14, and “the requisite justification
cannot rest upon bald assertions . . . that law enforcement
officers were in fact prompted to act” on reasons of
safety and security. Id. at 17. The government
“must be able to point to some specific fact
or circumstance that could have supported a reasonable belief
that the use of such restraints was necessary to carry out
the legitimate purposes of the stop without exposing law
enforcement officers, the public, or the suspect himself to
an undue risk of harm.” Id. at 19.
“[H]ighly generalized statements are inadequate”
to establish “actual safety concerns arising from the
stop.” Id.
Here,
the government has argued that “[t]he officers were
investigating out-of-state drug traffickers who were
allegedly coming to Maine to sell narcotics. The link between
firearms and drug traffickers is well and long established.
The targets involved were unknown and potentially dangerous.
Officers were permitted to take reasonable precautionary
measures under the circumstances.” Gov't Resp. 4.
At oral argument the government's lawyer noted “the
protection of possible evidence” as another
justification for the officers' approach to the stop. I
am concerned whether these assertions by counsel in the
absence of testimony meet the Acosta-Colon
standard.[1] It has not escaped me that law enforcement
stopped the car around midnight on the side of the road after
it exited the Maine Turnpike at the Auburn exit, and that law
enforcement agents had placed two confidential informants in
the precarious position of driving to Boston to pick up an
unknown male (as it turned out, two males appeared) at South
Station and bring crack cocaine back to Auburn to sell. But
the record at this point does not reveal whether factors such
as these in fact generated the nature of the takedown or
whether the video merely shows what law enforcement agents do
routinely. So in order to address the defendants' de
facto arrest argument now that it has become focused, it may
be necessary to reopen the evidentiary hearing in order to
determine whether the government can meet the
Acosta-Colon standard.
The
Clerk's Office shall schedule a conference of counsel to
determine how to proceed.
So
Ordered.
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Notes:
[1] The government's law enforcement
witness testified that the defendants were put in cuffs
“for safety, ” but did not elaborate on ...