Opinion
Criminal Action No. 04-720.
May 16, 2005
MEMORANDUM
Defendant Craig Mason presents a Motion to Suppress Evidence. Mr. Mason has been charged with one count of possession with intent to distribute cocaine in excess of five kilograms, 21 U.S.C. § 841(a)(1), and one count of possession of firearm in furtherance of drug trafficking crime, 18 U.S.C. § 924(c)(1). The Government has filed a response to this Motion. An evidentiary hearing was held before the Court on May 10, 2005 in which the Government called five witnesses: Detective David Kleinfeld of the Irvine, CA Police Department, Narcotics Division; Officer Alan Basewitz of the Pennsylvania State Bureau of Narcotics Investigation; Special Agent Merritt Gibson of the United States Drug Enforcement Agency; Trooper Parris Hamilton of the Pennsylvania State Police; and Supervisory Special Agent Philip Devlin of the United States Drug Enforcement Agency. The Government has filed a supplemental response following the hearing.
Mr. Mason makes two arguments in his Motion and added one more argument during the hearing. In his Motion, Mr. Mason asserts that the Government did not have reasonable suspicion of present criminal activity when agents stopped Mr. Mason's vehicle and detained him and that, even if the stop of the vehicle was legal, the Government did not have reasonable suspicion of present criminal activity to justify bringing a trained "drug-sniffing" dog to the vehicle. Finally, Mr. Mason also argues that the search warrant for Mr. Mason's vehicle was not supported by probable cause. Therefore, Mr. Mason seeks to suppress the handgun found on his person and the narcotics found in the trunk of the vehicle he was driving.
For the reasons explained below, the Court finds that the Government did have reasonable suspicion of present criminal activity when agents stopped Mr. Mason's vehicle and, therefore, the stop of the vehicle was reasonable under the Fourth Amendment. Further, the Court finds that the use of the trained dog by the Government did not implicate a "legitimate privacy interest," so the use of the dog by the Government did not constitute a Fourth Amendment search. Finally, the Court finds the issuance of the search warrant was supported by probable cause. Therefore, the Court denies the Motion and holds that the evidence at issue will not be suppressed.
I. FACTUAL BACKGROUND
This matter began during an investigation in California. According to Detective David Kleinfeld of the Burbank, California, Police Department, on August 27, 2004, a suspicious parcel was detected being sent from 5919 Kemble Street, Philadelphia, a city considered by narcotics agents as a drug receiving city, to Los Angeles, a city considered by narcotics agents as a drug supplying city. (Tr. 5/10/05 at 5, 1.18-7, 1.24). The exact destination address on the parcel was 6097 Fragrans Way, Woodlyn Hills, California. (Tr. 5/10/05 at 7, 1.5). The parcel had a handwritten label. (Tr. 5/10/05 at 5, 11.21-22). A trained "drug-sniffing" dog examined the parcel and "alerted" to the presence of narcotics. (Tr. 5/10/05 at 6, 11.13-17). The police attempted to do a controlled delivery, that is, a delivery where law enforcement agents monitor the delivery, but no one at the destination address accepted the package. (Tr. 5/10/05 at 8, 11.4-12). A search warrant was then sought and issued for the parcel. (Tr. 5/10/05 at 8, 11.21-22). Inside the parcel was approximately $150,000 in U.S. currency. (Tr. 5/10/05 at 9, 1.17). The currency was also examined by the "drug-sniffing" dog, who responded positively for the presence of a controlled substance on the money. (Tr. 5/10/05 at 37, 11.2-5).
As a result of this discovery, a search warrant was obtained and executed on August 30, 2004 at the 6097 Fragrans Way property. (Tr. 5/10/05 at 10, 11.16-22). Inside a storage unit within the garage connected to this residence, the agents found: large sheets of plastic, trash bags, tubs of grease, containers of liquid soap, boxes and some packing peanuts. (Tr. 5/10/05 at 11, 11.17-20). In the main residence, the police found a handgun, a reproduction of a Pennsylvania driver's license belonging to a Jabril Ali of Philadelphia, cancelled checks for the residence with the name Jabril Ali, and numerous blank air bills with the sender "ML, Inc." identified on the forms. (Tr. 5/10/05 at 12, 11.5-8; 13 11.10-11). The address for M L, Inc. was a public storage facility in California. (Tr. 5/10/05 at 14, 11.15-16).
Grease is apparently used, as is coffee, by some shippers of narcotics to attempt to mask the smell of the narcotics from the "drug-sniffing" dogs. (Tr. 5/10/05 at 38).
Surveillance commenced outside the M L public storage facility in an attempt to locate Jabril Ali. (Tr. 5/10/05 at 14, 11.20-21). During this surveillance, the police noted, on two different occasions, a truck from Expert Trucking. (Tr. 5/10/05 at 14, 11.22-23). The police then expanded their surveillance to include Expert Trucking's facility in Inglewood, California. (Tr. 5/10/05 at 15, 11.1-2). On October 5, 2004, Detective Kleinfeld, who was part of the surveillance, saw a man who appeared to him (based upon the previously recovered Pennsylvania drivers' license) to be Jabril Ali driving a U-Haul truck with an unidentified man as a passenger. (Tr. 5/10/05 at 15, 11.6-24). Detective Kleinfeld saw four to five large crates loaded onto the U-Haul truck and then followed the U-Haul truck as it departed. (Tr. 5/10/05 at 16, 11.6-10). Detective Kleinfeld witnessed the crates being unloaded at a public storage facility. (Tr. 5/10/05 at 16, 11.20-21).
On October 7, 2004, Detective Kleinfeld, now surveilling the storage facility where the crates had been taken, again saw Jabril Ali and the same unidentified man arrive at the storage facility with a U-Haul truck. (Tr. 5/10/05 at 18, 11.12-16). One of the crates was loaded onto the U-Haul and, with the police following the U-Haul, Ali drove the U-Haul to Expert Trucking. (Tr. 5/10/05 at 18, 11.18-23). The crate was unloaded at Expert Trucking. (Tr. 5/10/05 at 19, 1.1). After Ali and the unidentified man left, Detective Kleinfeld spoke with an employee of Expert Trucking, who informed Detective Kleinfeld that the crate was being sent to 5002B Wellington Street, Philadelphia, PA. (Tr. 5/10/05 at 19, 11.22-25). Detective Kleinfeld notified Officer Alan Basewitz of the Pennsylvania Office of Attorney General, Bureau of Narcotics Investigation, about the crate and his belief that the crate being shipped to Philadelphia contained narcotics. (Tr. 5/10/05 at 20, 11.11-12).
Officer Basewitz intercepted the crate before it reached 5002B Wellington Street. (Tr. 5/10/05 at 40, 1.22). The crate was a large home-made wooden crate that was both screwed and nailed closed, which, according to Officer Basewitz, was unusual. (Tr. 5/10/05 at 41, 11.7-11). The recipient information and description of contents were hand-written, which, according to Officer Basewitz, was also unusual. (Tr. 5/10/05 at 41, 1.19-50, 1.4). The crate was being sent to M L, Inc. and was listed as containing "auto parts." (Tr. 5/10/05 at 41, 1.20; 42, 1.18).
Rather than attempting a controlled delivery, the Government instead placed the 5002B Wellington Street location under surveillance. (Tr. 5/10/05 at 43, 1.21-44., 1.1). On October 11, 2004, DEA surveillance officers, along with local police, observed a messenger service pick up the crate and proceed to 5002B Wellington Street. (Tr. 5/10/05 at 44, 11.16-19). The door to the garage connected to 5002B Wellington Street had a sign for "ML, Inc." (Tr. 5/10/05 at 64, 11.13-14).
Defendant Craig Mason had been observed by DEA Special Agent Merrit Gibson waiting and walking outside of the Wellington Street property for at least an hour before the messenger service arrived with the crate. (Tr. 5/10/05 at 66, 11.9-10). Mr. Mason was outside the facility seated in his Nissan Maxima. (Tr. 5/10/05 at 66, 1.7). When the messenger arrived, he parked his delivery truck in front of 5002B Wellington Street and was met by Mr. Mason. (Tr. 5/10/05 at 66, 11.19-20). Mr. Mason went into the building and soon after the garage door opened. (Tr. 5/10/05 at 45, 11.4-6). From their vantage point, because the truck obstructed the view, the agents were unable to see what occurred inside of the garage or Mr. Mason going to his vehicle. (Tr. 5/10/05 at 60, 11.4-7).
Several minutes later, Mr. Mason went to his car parked near the garage and drove away. (Tr. 5/10/05 at 45, 1.11). No agents or officers observed Mr. Mason carrying a package to his car. (Tr. 5/10/05 at 60, 1.4). DEA Supervisory Special Agent Philip Devlin made the decision to order Mr. Mason's car to be pulled over. (Tr. 5/10/05 at 78, 11.4-5). Agent Devlin was concerned that Mr. Mason posed a "risk to the public" and, if he were to drive away, the Government would be in an "untenable tactical situation." (Tr. 5/10/05 at 79, 1.25-80, 1.2).
Trooper Parris Hamilton was one of the officers involved in pulling Mr. Mason over. (Tr. 5/10/05 at 72, 11.16-18). Trooper Hamilton, along with others, ordered Mr. Mason out of his vehicle. (Tr. 5/10/05 at 73, 1.1). Mr. Mason hesitated before getting out of his car. (Tr. 5/10/05 at 73, 11.1-2). Trooper Hamilton tapped on the window and again ordered Mr. Mason out. (Tr. 5/10/05 at 73, 1.2). Mr. Mason complied. (Tr. 5/10/05 at 73, 1.3). Trooper Hamilton noticed a bulge on Mr. Mason and conducted a frisk. (Tr. 5/10/05 at 73, 1.5). The frisk turned up a handgun fully loaded with "Kevlar penetrators" bullets. (Tr. 5/10/05 at 74, 1.12). Mr. Mason had a valid license to carry this weapon and is not facing charges relating to ownership of the weapon or the ammunition. (Tr. 5/10/05 at 76, 1.3).
After the stop, Mr. Mason was led back to 5002B Wellington Street in handcuffs. (Tr. 5/10/05 at 47, 1.24-48, 1.2). A "drug-sniffing" dog, Casey, was also brought to the location and gave a positive indication at the garage for the presence of a controlled substance. (Tr. 5/10/05 at 48, 1.9; 48, 1.19). Mr. Mason was asked to give his consent for a search of the garage and, after initially seeming reluctant and unwilling, he consented to a limited search of the garage and a search of the crate. (Tr. 5/10/05 at 49, 11.5-16). The officers found the crate inside the garage and already open. (Tr. 5/10/05 at 50, 11.8-9). Several small boxes containing plastic room fans were inside the crate, no drugs were found in the crate. (Tr. 5/10/05 at 50, 1.11).
Casey was then exposed to Mr. Mason's car and again "alerted" to narcotics, specifically, at the trunk of the car. (Tr. 5/10/05 at 50, 11.14-17). The agents then applied for a search warrant, supplying substantially the same information heretofore recounted in this memorandum. (Tr. 5/10/05 at 52, 11.12-15). A search warrant was issued. (Tr. 5/10/05 at 52, 1.15). A search of the trunk revealed a package containing approximately 10 kilograms of cocaine. II. LEGAL BACKGROUND
A person cannot be unreasonably seized or searched by the Government. U.S. CONST. amend. IV. A search occurs when "an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113 (1984). For the police to be justified in conducting an investigative detention, which is a seizure under the Fourth Amendment, the police must have a reasonable suspicion of a present unlawful activity. United States v. Henley, 469 U.S. 221, 226 (1985); Terry v. Ohio, 392 U.S. 1, 22 (1968). The stopping of a vehicle is an example of an investigative detention and can be made whenever an officer has reasonable suspicion of the commission of a traffic offense, even if the stop is a pretext for other law enforcement interests. Whren v. United States, 517 U.S. 806, 814-15 (1996); Delaware v. Prouse, 440 U.S. 648, 663 (1979). If the police do not have reasonable suspicion of the commission of a traffic offense, a traffic stop will be an unreasonable seizure unless the police can articulate reasonable suspicion of a present, non-traffic unlawful activity.
"Reasonable suspicion" is defined as "a particularized and objective basis for suspecting the particular person stopped of criminal activity" based upon the totality of the circumstances.United States v. Nelson, 284 F.3d 472, 478 (3d Cir. 2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). When formulating "reasonable suspicion," "the officers' experience and specialized training may allow them to make inferences and deductions from information that `might well elude an untrained person.'" Id. Further, "acts that in isolation may be `innocent in itself' or at least susceptible to an innocent interpretation, may collectively amount to reasonable suspicion."Id. at 480 (citing United States v. Arvizu, 534 U.S. 266, 274 (2002)).
An investigatory technique employed by police officers that does not infringe upon a person's reasonable expectation of privacy is not a search under the Fourth Amendment. Jacobsen, 466 U.S. at 113. The use of drug-sniffing dogs in areas that are otherwise in the public area "generally does not implicate legitimate privacy interests."Illinois v. Caballes, 125 S.Ct. 834, 838 (2005). Therefore, police use of a drug-sniffing dog is not a search, unless the dog and/or the police have in some other way, such as by entering a home, violated an individual's "legitimate privacy interest." Additionally, a vehicle that has legally been detained by the police can be subject to a drug sniff by a trained dog without it constituting a search. Caballes, 125 S. Ct. at 838 (drug sniff during lawful traffic stop is not a search); City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (drug sniffs at city drug interdiction checkpoints were not searches).
A search is reasonable if supported by a valid search warrant.See, e.g., United States v. Ward, 131 F.3d 335, 340 (3d Cir. 1997). For a search warrant to be valid it must be supported by probable cause, which is determined by reviewing the affidavit and considering the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 283 (1983). Probable cause is "a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238; United States v. Schecter, 717 F.2d 864, 869 (3d Cir. 1983). When evaluating whether an issued search warrant was supported by probable cause, the trial court should show "great deference" to the issuing magistrate's determination. United States v. Leon, 468 U.S. 897, 914 (1984). However, even if the Court were to find a warrant lacked probable cause, if the officers executing the warrant had a "good faith" belief in the validity of the warrant, the fruit of the search would not be excluded. United States v. Leon, 468 U.S. 897, 922 (1984).
III. DEFENDANT'S MOTION
Mr. Mason argues that the cocaine found in the trunk of his car and the gun found on his person should be suppressed because the Government did not have reasonable suspicion of present criminal activity to justify stopping Mr. Mason in his vehicle, and the Government was unjustified in using the drug-sniffing dog. Specifically, Mr. Mason argues that there is no evidence proffered that indicates the traffic stop was for a traffic violation nor is there evidence that the police had reasonable immediate suspicion of current illegal conduct.
Mr. Mason asserts that the Government's sole basis is the belief that criminal activity occurred in the garage at the Wellington Street location must have continued to the car. Mr. Mason argues that this theory has been rejected by several courts, citing Commonwealth v. Melendez, 676 A.2d 226, 228 (Pa. 1996). Further, Mr. Mason argues that the police originally targeted the garage, but only switched to a search of the vehicle when the search of the garage proved fruitless.
Finally, Mr. Mason contends that to deploy the drug-sniffing dog, the police must have reasonable suspicion to believe that criminal activity is taking place. However, counsel for Mr. Mason conceded during the hearing that the governing precedent, namelyIllinois v. Caballes, supra, does not require reasonable suspicion for use of a dog with respect to a car in a public area.
IV. DISCUSSION
Mr. Mason's suppression motion hinges upon the legality of stopping Mr. Mason's vehicle. If the stop was illegal, then frisking Mr. Mason which revealed his handgun and the eventual search, with a warrant, of the trunk of the vehicle which revealed the cocaine would have never occurred. Therefore, if the stop is illegal, the evidence would need to be suppressed as the "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488 (1963). It is therefore incumbent on the Court to determine if the Government had reasonable suspicion of a present illegal activity when they pulled Mr. Mason over just beyond the Wellington Street address.
The Government is not arguing that the officers had reasonable suspicion of any traffic violation by Mr. Mason. Rather, it argues that the totality of the circumstances leading up to the delivery of the crate and Mr. Mason's presence at and acceptance of the delivery of the crate prompted these officers to have reasonable suspicion that Mr. Mason was involved in present criminal activity, namely distribution of narcotics. The Government's theory is that the investigation in California would lead to reasonable suspicion that narcotics were being transported to Philadelphia in the crate addressed for delivery to 5002B Wellington Street. As Mr. Mason was apparently waiting for the delivery of the crate and accepted the delivery, the Government contends that they had reasonable suspicion that Mr. Mason was directly involved in the narcotics trafficking from California to Philadelphia.
The Court of Appeals for the Third Circuit in United States v. Nelson, 284 F.3d 472 (3d Cir. 2002), defined reasonable suspicion as "a particularized and objective basis for suspecting the particular person stopped of criminal activity" based upon the totality of the circumstances. Id. at 478. However, the Court of Appeals also clarified that the court must take account of the specialized knowledge and training of police officers and that a series of innocent or innocuous acts that individually are not suspicious may, as a whole, rise to the level of reasonable suspicion. Id. at 478, 481.
In this matter, the totality of evidence, while much of it individually might be either innocent at first blush or would not be recognizable by non-police officers as evidence of criminal activity, does, and, more to the point, did create in these narcotic officers reasonable suspicion that Mr. Mason was involved in criminal activity on October 11, 2004, prompting them to stop him. Furthermore, the use the trained "drug-sniffing" dog does not constitute a search, and the search warrant issued to search Mr. Mason's car was supported by probable cause.
A. Reasonable Suspicion of Narcotics in Crate
Initially, for the Government to have reasonable suspicion that Mr. Mason was involved in present criminal activity on October 11, 2004 when he was pulled over, the Government needed reasonable suspicion that the crate delivered to 5002B Wellington Street contained illegal narcotics. The investigation that led to discovery of the crate began in August 2004. In August 2004, as described above, the California police searched a parcel and a residence located at 6097 Fragrans Way. The large sum of cash, $150,000 in US currency, in the parcel and the various material at 6097 Fragrans Way led the police to the conclusion that narcotics trafficking was occurring. Specifically, the California police found at 6097 Fragrans Way packing supplies, tubs of grease (known to be used as a masking agent for the odor of narcotics), and shipping labels. None of this information in isolation would provide reasonable suspicion that narcotics were being bagged and shipped from 6097 Fragrans Way, but, as reported to the officer in Philadelphia, the totality of those circumstances would lead narcotics officers to such a conclusion.
The operation at 6097 Fragrans Way is not directly connected to the shipping of the crate. Instead, it provided two leads prompting the police's discovery of the crate. First, the police found a strong connection between Jabril Ali and 6097 Fragrans Way, namely canceled checks made out for the apartment in his name and a copy of his Pennsylvania driver's license. Second, the police found the shipping labels that listed ML, Inc. as the sender.
Although six weeks passed before the California police saw Jabril Ali on October 5, 2004 driving a U-Haul truck to the ML, Inc. location, the police still had reasonable suspicion that Jabril Ali was directly involved in narcotics trafficking and that the ML, Inc. was involved as the sender of the packaged narcotics. As such, when the police witnessed 4 to 5 crates being loaded onto the U-Haul truck being driven by Jabril Ali, they reasonably suspected that the crates contained some narcotics. When the crate at issue was more closely examined, the fact that it was being sent to Philadelphia (a city considered by law enforcement to import drugs), the handwritten information on the crate (rather than the more traditional printed label and bill of information), and the excessive protection of both nailing and screwing all signified to the trained narcotics officers that the crate was containing illicit material.
Pursuant to United States v. Nelson, supra, the Court finds that the foregoing information, as reported to the Philadelphia-based police, was sufficient for the police to find "a particularized and objective basis for suspecting" that the crate contained narcotics.
B. Reasonable Suspicion that Craig Mason was Involved in Drug Trafficking
Without the background about the crate and its expected delivery to Wellington Street, Defendant Craig Mason's actions on October 11, 2004 on Wellington Street certainly were innocent in appearance. Mr. Mason was parked on the street awaiting a delivery. He opened the garage for the delivery truck and then left soon after the crate was unloaded. None of these acts are suspicious in and of themselves. However, when viewed in the light that the police had reason to believe that the crate Mr. Mason was awaiting likely contained illegal narcotics, his actions become suspect.
Mr. Mason was clearly waiting for the delivery of the crate. He was outside of 5002B Wellington Street prior to the delivery and immediately met with the delivery person upon the truck's arrival. He also opened the garage connected to 5002B Wellington Street upon arrival of the delivery truck. Additionally, the name on the sign outside 5002B Wellington Street was ML, Inc. Although Mr. Mason's presence at the time of the delivery of a crate likely containing narcotics and his apparent connection to ML, Inc. do not alone prove that Mr. Mason was involved in the narcotics trafficking, they do create some reasonable suspicion that he was involved. This suspicion was heightened by Mr. Mason's time inside the garage with the crate. Admittedly, Mr. Mason was only inside the garage briefly, but that would seem to be enough time to open the crate and remove any drugs or confirm the contents.
The totality of the circumstances, namely the likelihood of narcotics in the crate and Mr. Mason's actions that implied knowledge of the contents of the crate, provided the Government with reasonable suspicion to temporarily detain Mr. Mason to investigate further any potential illegal acts.
C. Use of Trained Drug-Sniffing Dog
After the permitted search of the garage at 5002B Wellington Street and the crate (pursuant to Mr. Mason's consent) revealed no narcotics, Government agents used Casey, a trained drug-sniffing dog, to examine the crate. Casey gave a positive indication of narcotics in (or having been in) the crate. It is unclear whether Mr. Mason is challenging Casey's examination of the crate, but if Mr. Mason is raising such a challenge and presumably has standing to raise such a challenge, the Court finds that there is no basis for such a challenge.
Mr. Mason consented to a limited search of the garage and a search of the crate. It would be an odd interpretation of the law to assume that when a person gives permission for the police to perform a search, he is limiting the investigative techniques allowed by the police in that search. As the Court finds that the evidence shows (and Mr. Mason does not dispute this) Mr. Mason consented to the search of the crate, the Court holds the use of Casey to examine the crate was a completely lawful investigative technique that was a part of the search and was consented to by Mr. Mason.
Mr. Mason also challenges the legality of using Casey to examine Mr. Mason's car. The Supreme Court has made it clear that an examination by a trained drug-sniffing dog of a car that has been lawfully stopped is not a search under the Fourth Amendment.Illinois v. Caballes, 125 S.Ct. 834, 838 (2005); City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000). Because there was no Fourth Amendment search, Mr. Mason cannot argue the use of Casey was in violation of the Fourth Amendment.
D. Probable Cause for the Search Warrant
On October 11, 2004, the police submitted an affidavit of probable cause attached to an application for search warrant. The police sought a search warrant to search Mr. Mason's car. The affidavit contained the same basic facts as discussed above and that had provided the Government with reasonable suspicion to pull Mr. Mason over. In addition, the affidavit included Casey's positive indication of narcotics within the car.
In light of the Court's obligation to give "great deference" to the issuing magistrate's determination, United States v. Leon, 468 U.S. 897, 914 (1984), and the totality of the circumstances, especially Casey's positive indication of narcotics within the trunk of the car, the Court finds that there was "a fair probability that contraband or evidence of a crime will be found in a particular place," namely narcotics. Illinois v. Gates, 462 U.S. 213, 238 (1983). Therefore, the search warrant was supported by probable cause and the search of Mr. Mason's vehicle was performed with a valid search warrant.
V. CONCLUSION
For the foregoing reasons, the Court denies the Defendant's Motion to Suppress Evidence seized from the Defendant Craig Mason on October 11, 2004. An appropriate Order consistent with this Memorandum follows.
ORDER
AND NOW, this 16th day of May, 2005, upon consideration of Defendant Craig Mason's Motion to Suppress Evidence (Docket No. 12), the Government's Answer and Memorandum of Law in Opposition (Docket No. 13), the evidence and arguments presented in open court on May 10, 2005, and the Government's Supplemental Memorandum of Law in Opposition (Docket No. 27), it is hereby ORDERED that the Motion is DENIED and the evidence at issue is not suppressed.