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State v. Feliciano

Superior Court of Maine, Cumberland

May 5, 2019

STATE OF MAINE
v.
JOSE FELICIANO & MICHAELANGELO VELEZ, Defendants

          Attorney: VALERIE RANDALL

          State's Attorney: STEPHANIE ANDERSON.

          ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS

          Roland A. Cole, Chief Justice.

         PROCEDURAL BACKGROUND

         Defendants Jose Feliciano and Michaelangelo Velez are charged under Title 17-A M.R.S. § 1107-A(1)(F)(3) with unlawful possession of a scheduled drug (possession of over one pound to 20 pounds of marijuana). The defendants separately filed motions to suppress evidence obtained during a traffic stop and subsequent vehicle search that occurred on January 22, 2018. The motions were heard by the Court on September 13, 2018. The defendants appeared with counsel at the hearing. The State presented testimony from two witnesses. Defendant Feliciano called one witness at the hearing. The Court admitted Joint Exhibits 1 through 4 offered by the parties consisting of DVDs of the audio and video recordings made on January 22, 2018, with equipment in the police cruisers and on the persons of the State's witnesses present at the roadside stop.[1] State's Exhibits 1 through 3 consisting of snapshot photographs taken from the video recordings were offered and admitted without objection.

         Feliciano's motion to suppress was supported by a memorandum of law filed on April 4, 2018. As agreed and ordered by the Court after the hearing, both Feliciano and Velez filed memoranda of law on October 12, 2018, citing the evidence and stating their positions on the issues; the State filed a memorandum opposing both motions on November 2, 2018; and Feliciano filed a reply to the State's memorandum on November 9, 2018.

         FACTS

         The following facts are based on testimony and documentary evidence admitted at the hearing including the audio and video recordings made by equipment in the police vehicles.

         Maine State Police Trooper Patrick Flanagan was on patrol in his cruiser on 1-295 in the afternoon on Monday, January 22, 2018. A mist was falling. The road surface was wet. The speed limit on the highway had been reduced to 45 MPH due to weather conditions. Shortly before 1:00 P.M., Flanagan heard a report of a silver Mitsubishi with New York license plates driving southbound on 1-295 in Brunswick going very slowly in the passing lane and reportedly operated by a sleepy driver. Flanagan, traveling in the northbound lanes of the highway, spotted the vehicle in question as it came toward him going in the opposite direction. He observed that the windshield wipers were on but the headlights were off in violation of Title 29-A M.R.S. § 2067(1). He also observed that the vehicle was going 73 MPH in an area where the speed limit was normally 65 MPH. He activated his blue emergency lights and crossed over the median to reverse his direction. When Flanagan caught up to the vehicle, he saw activity in the rear seat area that he described as furtive movement. Responding to the blue lights, the vehicle pulled over to the side of the highway in Falmouth at 1:04 P.M.

         Flanagan approached the vehicle on the passenger side. He saw that there were three people in it, all young males; the driver, a passenger in the front, and a passenger in the rear who appeared to have been lying down on the back seat before the stop. Flanagan asked the driver if he knew why he was being stopped. When the driver answered no, Flanagan told him that he was being stopped for going 73 MPH in a 65 MPH zone and for failing to have the headlights on while using the windshield wipers as required under Maine law. He asked for the vehicle registration and identification from all three occupants. The driver produced a New York driver's license identifying him as defendant Jose Feliciano.[2] The passenger in front produced a New York identification card indicating that he was defendant Michaelangelo Velez. The passenger in the back seat had no identification document. He stated that his name was Matthew Rodriquez and, at Flanagan's request, wrote down his name, date of birth, and social security number on a piece of paper. Flanagan also asked them where they had started their trip. Feliciano stated that they were driving back to New York from Farmingdale, Maine, where they had been visiting his cousins. The behavior of the occupants seemed odd to Flanagan. The two passengers were inattentive and slow to react. They also giggled inappropriately and appeared to be nervous. Flanagan thought that they were either high or very tired.

         The initial conversation with the vehicle occupants lasted for about five minutes. Flanagan returned to his cruiser to run the license plate and records check on all three occupants. Using the radio, he requested assistance from another trooper with a drug-sniffing dog. He determined that Feliciano's license was active. He was unable to confirm the identity of the passenger in the back seat based on the name, date of birth, and social security number provided.

         Flanagan went back to the car and told them that he was unable to find a record corresponding to the information provided by the back seat passenger. He asked this person to confirm his full name and date of birth. He also asked the occupants if they were high or had ever been involved with drugs. They answered in the negative although one of the occupants stated that he used to smoke marijuana. This conversation lasted for about three minutes.

         Suspecting that "Matthew E. Rodriguez," the name given by the back seat passenger, was false, Flanagan returned to his cruiser at about 1:15 P.M. to continue to search for it. After several minutes, he went back to the Mitsubishi and explained that the stop was continuing because he was unable to find a record confirming the identity of "Rodriguez." Flanagan asked "Rodriguez" if he had been lying down in the back seat when Flanagan pulled them over. He also told the occupants that he had seen a lot of movement in the rear seat area when he stopped them. The back seat passenger assured him that "Rodriguez" was his real name.

         At that time, about fifteen minutes after the stop began, Maine State Police Trooper Jesse Duda arrived on the scene accompanied by his drug-detecting dog.[3] Duda had six years of experience as a trooper in the Maine State Police and five years with the Kennebec County Sheriffs Department. He parked his cruiser behind Flanagan's car. After a brief conversation with Flanagan, he led his dog through a sniff protocol, circling the Mitsubishi twice while the occupants waited inside the vehicle with their hands in sight of the officers. The dog was trained to detect the presence of cocaine, methamphetamine, crack, and heroin, and was not trained to detect marijuana. It did not indicate that there were any drugs in the defendants' car. During the sniff, which took about five minutes, Feliciano made noises that seemed to Duda to be intended to distract the dog. Duda believed that the front seat passenger, Velez, was very nervous because he stared straight ahead and avoided eye contact and the carotid artery in his neck was visibly pulsating.

         When Duda spoke with him through the open passenger side window, he denied being nervous.

         While Duda was talking with Velez through the open car window, about twenty minutes after Flanagan initiated the stop, he noted a strong odor of fresh marijuana coming from the back seat area of the vehicle. He then asked Feliciano to get out of the car and told Flanagan about the odor. Flanagan returned to the Mitsubishi to smell the odor. He agreed that it was a strong odor of fresh marijuana coming from inside the rear area of the car.

         Outside the car and out of earshot of the two passengers, Duda questioned Feliciano about his whereabouts during the trip to Maine. Feliciano told him that they had been visiting his cousins and his aunt Gloria in Farrningdale since Friday, they had no drugs in the car, and the only occupant who smoked marijuana was his cousin Matthew, the back seat passenger.

         Duda returned to the Mitsubishi to talk with the other two occupants. The back seat passenger said they were visiting his uncle Mark in Farrningdale. He said that they had attended the ...


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