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United States v. Artis

United States District Court, D. Maine

June 19, 2018

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

          DECISION AND ORDER ON DEFENDANTS' MOTION FOR CLARIFICATION OF ORAL ORDER DENYING MOTION TO SUPPRESS

          D. Brock Hornby United States District Judge

         After 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.

         The 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.

         Facts

         On May 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. 4.[1] 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. Tr. 58.[2]

         CI1 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.[3] Madore was also aware, through surveillance, of Mayo as an out-of-state drug seller in Lewiston. Tr. 29-30.

         Madore 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.

         The two 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.

         Upon 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.

         CI1 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.

         Madore 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 waiting.

         Sometime 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.

         Law 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.

         A ...


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