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United States v. Artis

United States District Court, D. Maine

May 25, 2018

UNITED STATES OF AMERICA
v.
MICHAEL ARTIS and CUWAN MERRITT, Defendants

          PROCEDURAL ORDER

          D. Brock Hornby United States District Judge

         After a full evidentiary hearing, I denied the defendants' motions to suppress. Thereafter, one of the defendants obtained a new lawyer and became concerned whether a so-called de facto arrest issue had been adequately preserved for appeal. At her request I conducted a conference of counsel. Next, the defendants moved for clarification of the suppression order. On May 11, I issued an Order on Motion for Clarification of Suppression Order (ECF No. 104), indicating my concern whether a de facto arrest argument had been raised in such a fashion as to permit the government to address it. I then conducted another conference of counsel and gave all parties time to decide whether they desired an additional evidentiary hearing and if so for what purpose and why I should allow it. Before that conference, I also had the Clerk's Office alert counsel to United States v. Moore, 329 F.3d 399 (5th Cir. 2003) and at the conference I noted United States v. Watson, 558 F.3d 702 (7th Cir. 2009).

         The government now has informed the Court via the Clerk's Office that it does not seek to provide additional evidence on the de facto arrest issue. App. iii.[1]

         The defendant Merritt has informed the Court via the Clerk's Office that he “wishes to go forward on the issue of the dog activity as we believe that may be a subsequent search, which could serve to undermine arguments advanced in the Moore case.” App. ii.

         The defendant Artis wants the Court to “hear/view/review, and consider the following supplemental” matters:

(1) Evidence regarding The Open the Door issue:
a. What was the make, model, year, and door lock control features, of the vehicle used by the agents/confidential informants?
b. Whether the driver (XXXXX) or front passenger (XXXXX) had control over the locks on the rear passengers' doors,
c. Prior or concurrent to the operation, what were the driver (XXXXX) and/or front passenger (XXXXX) instructed to do when the police stopped the vehicle; and
d. Whether the driver (XXXXX) or front passenger (XXXXX) had control over the rear passenger doors, could open or lock the rear passenger doors, and/or whether the parental control features were active on the vehicle.
(2) Evidence regarding The Dog Sniff:
a. When did the Handler and Dog arrive on the scene and/or were they there as part of the “operation” from the beginning;
b. Why was the dog sniff conducted “off camera”?
c. Testimony of the dog handler regarding details and manner of the dog sniff conducted here, as well as protocols employed; and what information was provided to the Handler ...

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