United States District Court, D. Maine
DECISION AND ORDER ON DEFENDANTS' MOTION FOR
CLARIFICATION OF ORAL ORDER DENYING MOTION TO
Brock Hornby United States District Judge
an evidentiary hearing and a bench ruling denying the
defendants' motions to suppress everything resulting from
a vehicle stop at Exit 75 of the Maine Turnpike, I allowed a
limited revisitation of the matter for reasons I described in
my Orders of May 11 and May 25, 2018. Further briefing has
now taken place, I have re-read the transcript of the hearing
and re-examined the exhibits. As a result, I issue this new
decision to replace my bench ruling of December 21, 2017.
evidentiary record is the following. Three people testified
at the evidentiary hearing: Agent David Madore, at the
relevant time a task force officer with the DEA; Confidential
Informant 1 (CI1); and Confidential Informant 2 (CI2). I have
no reason to discredit Agent Madore's testimony. He was
careful in his statements and credible. CI1 did not
contradict Agent Madore's testimony and, to the degree
there was any inconsistency, I find that it was based on
CI1's uncertainty about what he expressed to Agent Madore
at the time in question, as opposed to what he was thinking
in his own mind. As it turned out, CI2 had no relevant
information to provide. A number of exhibits also were
admitted, among them video recordings of the Turnpike exit
stop that resulted in the arrest of the two defendants.
12, 2017, Agent Madore received a phone call from CI1. Tr. 9
(ECF Nos. 83-84). Madore had been using CI1 since February,
id., and CI1 had provided reliable information that
had resulted in drug-related arrests. Tr. 12, Gov't Ex.
CI1 also had a criminal history involving illegal drug
possession, driving convictions, bail violations, assault,
and burglary among other things. Tr. 9; Gov't Ex. 1.
Madore paid CI1 for his information depending on the results.
told Madore on this phone call that a crack dealer had called
him from out of state and wanted a ride at 7:30 pm from
Boston's South Station to Lewiston, Maine to bring a load
of crack. Tr. 13-14. CI1 told Madore that he was unsure who
the caller was, Tr. 90, but that it might be Mayo, a black
male, Tr. 13, of whom CI1 was aware because his addicted
cousin had interacted with him. Tr. 33-34, 90. Madore was also
aware, through surveillance, of Mayo as an out-of-state drug
seller in Lewiston. Tr. 29-30.
and CI1 had further communications that day by phone, text,
or in person. Tr. 33. At Madore's request, CI1 agreed to
go to Boston to pick up the caller. Because CI1 did not have
a valid driver's license, Madore arranged for CI2, not
previously known to CI1, to do the driving. Tr. 14-15. CI1
supplied his ex-wife's vehicle for the trip. Tr. 15, 100.
CI1 told Madore that the caller told him that he would
receive drugs (be “hooked up”) in exchange for
the transportation. Tr. 36, 54, 93.
confidential informants headed south to Boston around 5:30 or
6:00 pm. Tr. 15. Madore was concerned about the safety of the
two informants for the trip, given the lack of law
enforcement attendance. Tr. 37. Madore told CI1 to relay
information to him by phone or text.
arriving at South Station, CI1 informed Madore that the
“target” was running late. Madore gave the two
informants the option of returning to Maine then or waiting
for the delayed target. They waited. Tr. 37.
reported to Madore that the target arrived after 10 pm, but
that there was a second black male as well, and no Mayo. Tr.
16, 94-95. Some of this information was conveyed during a
phone call from a gas station where they stopped after
leaving South Station, some of it by text. Tr. 38-39, 95. At
Madore's request, CI1 texted him as the vehicle carrying
the four people reached New Hampshire, then Maine, then
various mile markers on the trip through Maine. Tr. 17.
Madore informed CI1 that he would have law enforcement on the
highway waiting for the vehicle to come through. Id.
had arranged for a traffic stop at Exit 75 of the Maine
Turnpike, the exit the vehicle was taking. The videos reveal
that there were at least four police cars and eight officers.
There was also a state trooper with a drug-detecting dog
after midnight, the vehicle was pulled over. Law enforcement
forcibly extricated the two defendants from the back seat of
the vehicle and patted them down for weapons. Gov't Ex.
2. The drug dog did not sniff the vehicle's exterior for
drugs. Tr. 75. Instead the dog's handler had a law
enforcement agent stand next to the two defendants in front
of the vehicle, and then had the dog sniff each of the three.
The evidence does not reveal whether the dog's nose
actually touched the two defendants, but the sniff was
intrusive. According to the trooper's report, he walked
the dog around the defendants and then manually directed the
dog's attention (“targeting”) up the
defendants' bodies from their feet to their pants
pockets; the dog sniffed one defendant's crotch area and
the other's front pocket area. Defs.' Ex. 2. The dog
alerted on both defendants but not on the law enforcement
officer standing next to them.
enforcement then searched the defendants and discovered crack
on Artis, but not on Merritt. Tr. 19-20. Artis was
immediately arrested, Tr. 21, and Merritt not long
thereafter. (A state warrantless arrest warrant that Madore
prepared says that Merritt was arrested at 1:00 am. Gov't
Ex. 3.) Law enforcement took Merritt to the Androscoggin
County Jail for a more thorough search. There, corrections
officers discovered a plastic sandwich baggie partially
hanging out of his rectum. Id. They next took him to
a hospital to remove the item. Tr. 23. At the hospital there
was no discovery of drugs in his rectum, but there is a video
of Merritt approaching the emergency room entrance with law
enforcement and a package dropping to the ground. About 30
minutes later, an ambulance attendant saw a baggie containing
crack cocaine on the ground, retrieved it, and took it into
the hospital. Gov't Ex. 3. Merritt was “cleared for
incarceration” after his hospital exam. Defs.' Ex.
5 ¶ 18.