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United States v. Fogg

United States District Court, D. Maine

March 11, 2019

JARED FOGG, Defendant


          Lance E. Walker, United States District Judge

         On October 12, 2018, Jared Fogg was indicted on one count of “knowingly and intentionally possess[ing] with the intent to distribute 50 grams or more of methamphetamine, a Schedule II controlled substance, ” in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii). Indictment (ECF No. 16). Fogg now moves to suppress evidence gathered from the July 12, 2018 stop and search of a pickup truck in which he was a passenger as well as all information obtained as a result of the warrant to search three cellphones recovered in the search of the truck. Mot. to Suppress (“Motion”) (ECF No. 45). The motion is DENIED.


         The parties do not contest the key facts. On July 11, 2018, the Maine Drug Enforcement Agency (“MDEA”) received a call from a confidential source indicating that Jared Fogg had rented Room 34 at the Briarwood Motor Inn in Lincoln, Maine, and was there to sell illegal drugs.[1] Response, Ex. 1 ¶ 1 (ECF No. 51-1, #110). This source did not indicate which type of drugs Fogg was allegedly selling, but the source did notify MDEA that Fogg was joined by an “Indian” male and was using a white Ford F250 pickup with Florida plates 578PMW. Id. The source also told the MDEA agent that Fogg was carrying a firearm. Id.

         On the same day, the Lincoln Police Department received a complaint from a co-conspirator who admitted to selling “ice” or “crystal” methamphetamine and heroin in the Lincoln area. Id. ¶ 9. This co-conspirator informed police that he received his supply from Fogg and provided details regarding when and where he purchased drugs from Fogg . Id. That day, Lincoln Police officers observed the co-conspirator and Fogg together in the parking lot of the Briarwood Motor Inn. Id On the morning of July 12, 2018, an MDEA agent observed a white Ford F250 pickup with Florida registration matching the confidential source's description at the Briarwood Motor Inn. Id. Upon conducting a registration check on the pickup, MDEA agents learned the truck was registered to two men from Florida - one of whom was named Rogelio Rios. Id. ¶ 2. MDEA officers showed a picture of Rios to the confidential source and the source confirmed Rios looked like the man accompanying Fogg. Id.

         Fogg had been linked to drug activity in northern Maine on multiple occasions prior to the July 12, 2018 traffic stop. On July 13, 2017, a cooperating defendant supplied MDEA with information that Fogg commonly travelled from Florida to Maine and would remain in Maine for 2-3 weeks at a time in order to sell crystal meth. Id. ¶ 6. This informant indicated they had seen “Fogg with a gallon sized Ziploc bag full of crystal meth and a large amount of money spread out on the bed.” Id. On March 16, 2018, another cooperating defendant stated Fogg was the methamphetamine source for the Houlton area. Id. ¶ 7. On July 3, 2018, a third cooperating defendant stated Fogg was one of the “big fish” in the Houlton crystal methamphetamine trafficking market and indicated that Fogg drove a “new Florida plated white Ford pickup.” Id. ¶ 8. Two of the cooperating defendants indicated that Fogg commonly rented a hotel room for the purposes of selling drugs. Id. ¶¶ 6, 8.

         Based on the reports from the three cooperating defendants as well as the information provided by the confidential source, MDEA obtained a state search warrant on July 12, 2018, for Room 34 and set up surveillance at the Briarwood Motor Inn. Id. ¶ 10; Response, Ex. 2 (ECF No. 51-2). Throughout the course of the day, officers observed Rios driving the truck as he made various stops at Walmart, Circle K, and the Daigle Oil Company. Response, Ex. 1 ¶¶ 12-13 (ECF No. 51-1). Officers then observed Rios pick up Fogg from a residence in Houlton, after which Rios and Fogg travelled to several residences and made multiple stops at a local gas station. Id. ¶ 13. Rios and Fogg then travelled to Mattawamkeag and stopped at a residence for nearly an hour, during which time officers observed three individuals outside the truck with the doors open, “removing something from the vehicle.” Id. ¶ 14. Fogg and Rios then returned to Lincoln, stopped at the Lincoln Circle K, and ultimately returned to the Briarwood Motor Inn. Id. ¶¶ 14-15.

         Upon their arrival at the Briarwood Motor Inn, Lincoln Police Officers conducted a traffic stop on the vehicle. Id. ¶ 15. Officers searched the white Ford pickup and recovered various items including firearms and illicit drugs.[2] Response, 4 (ECF No. 51, #100). Additionally, officers seized three cellphones. Id.

         On September 19, 2018, law enforcement officers received a federal search warrant for the three cellular telephones recovered during the July 12, 2018 stop and search. Response, Ex. 3 (ECF No. 51-3). In support of the search warrant, the MDEA submitted an affidavit detailing the July, 2018 events and substantiating the Task Force Officer's belief, based on his training and experience, that a search of the three telephones would “yield[] evidence of contact and association between and among narcotics traffickers, customers and associates.”[3] Id. ¶ 17.


         Fogg makes three arguments in favor of his motion to suppress. First, he contends that Maine Drug Enforcement Agency (“MDEA”) agents “lacked reasonable and articulable suspicion to stop the truck.” Motion 1 (ECF No. 45, #81). Second, he argues that “law enforcement lacked probable cause to arrest Mr. Fogg and the driver immediately following the stop, and searched the vehicle absent probable cause to arrest and without a warrant.” Id. Third, he asserts that the cell phone “search warrant affidavit lacked probable cause the cellphones would contain evidence of a crime.” Id.

         I. Traffic Stop Supported by Reasonable and Articulable Suspicion

         The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. When law enforcement officers stop an automobile and detain its occupants, they have effectuated a “seizure” that necessarily implicates the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979); see also United States v. Chhien, 266 F.3d 1, 5 (1st Cir. 2001). However, a “traffic stop” is not violative of a defendant's constitutional rights if the stop is supported by “a reasonable and articulable suspicion of criminal activity” and the detention is reasonable under the circumstances.[4] Chhien, 266 F.3d at 6 (citing Berkemer v. McCarty, 468 U.S. 420, 439 (1984)).

         Reasonable suspicion requires “more than a naked hunch that a particular person may be engaged in some illicit activity, ” but yet “does not require either probable cause or evidence of a direct connection linking the suspect to the suspected crime.” Id.; see also United States v. Sokolow, 490 U.S. 1, 7 (1989) (“The officer, of course, must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.””) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). The degree of reasonable suspicion necessary to justify a traffic stop is “dependent upon both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 U.S. 325, 330 (1990). This standard looks to the particular facts of the case and requires “broad-based consideration of all the attendant circumstances.” Chhien, 266 F.3d at 6 (citing Florida v. Royer, 460 U.S. 491, 500 (1983)). Courts also routinely apply the “collective knowledge” or “pooled knowledge” principle, which allows for reasonable suspicion to be “imputed to the officer conducting a search if he acts in accordance with the direction of another officer who has reasonable suspicion.” United States v. Barnes, 506 F.3d 58, 63 (1st Cir. 2007).

         When reasonable suspicion is based on information from an informant, courts consider whether the information “bears sufficient ‘indicia of reliability.'” United States v. Barnes, 506 F.3d 58, 64 (1st Cir. 2007) (quoting Adams v. Williams, 407 U.S. 143, 147 (1972)). This determination looks to “all the circumstances bearing upon the tip itself and the tipster's veracity, reliability, and basis of knowledge.” United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004). The First Circuit has adopted a variable approach to the quantum of support for an informant's testimony, stating: “[W]here informants are known, a lesser degree of corroboration can be required.” Barnes, 506 F.3d at 64. In adopting this approach, the First Circuit cited the Supreme Court's decision in Adams ...

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