Opinion
UNIFIED CRIMINAL DOCKET No. CR-16-3494
07-17-2017
STATE OF MAINE v. JASON GRAVES, Defendant
STATE OF MAINE
CUMBERLAND, ss. ORDER
Before the court is a motion by defendant Jason Graves to suppress the results of a search during the early morning hours of June 16, 2016 of a vehicle in which he was a passenger. A hearing was held on June 27, 2017.
The court finds the following by a preponderance of the evidence:
Sometime around 11:30pm on June 15, 2016 New Hampshire State Trooper Brian Gacek stopped a red Chevrolet Cobalt sedan with Maine license plate 9672 UQ heading north on Interstate 95 south of the Hampton NH toll station. His stop was based on some drifting between lanes and the fact that he ran the registration, which indicated that the license plate belonged on a different vehicle. The legality of that stop is not challenged in the motion to suppress. In the course of that stop Trooper Gacek spoke to the driver of the vehicle, Robert Robinson, and the front seat passenger, Jason Graves, the defendant in this case.
During the course of his initial interaction with Robinson and Graves, Trooper Gacek observed a baggie with the corner cut off frequently used to package drugs - and noticed that both occupants were very nervous. Robinson said they were coming from Connecticut but initially could not answer where in Connecticut, then mentioned Hartford. By this time Gacek had discovered that the registration was in order but he had formed a reasonable articulable suspicion that there were illegal drugs in the vehicle. As a result, he spoke to Robinson outside of the car, and Robinson then stated that he had been to Connecticut to pick up a small pit bull puppy from someone named "Frenchie," who knew Graves's girlfriend. At this point Robinson also said he had been to several towns in Connecticut (but this time omitted Hartford) and told Gacek that he had had a drug problem but had been clean for 5 years. Gacek then spoke separately to Graves, who contradicted Robinson by stating that neither he nor his girlfriend knew "Frenchie."
Gacek also observed a large open bag of Skittles and multiple sodas, which in his experience can be an indication of drug use because addicts consume high sugar foods to ease the effects of coming down from being high.
The car had been registered the previous day by Graves's girlfriend using a pre-existing plate number. That change of registration had not yet been entered into the database available to Gacek when he ran the registration.
Gacek asked for consent to search the vehicle, which Robinson gave both orally and in writing. Gacek did not find any drugs but found a Burger King bag on the floor of the passenger compartment, where Graves had been seated, which contained baggies with used needles and baggies containing a powdery substance that looked like drug residue. In the course of the search both Graves and Robinson changed their stories - acknowledging that they had not picked up the puppy but had instead gone to Connecticut to sell Robinson's track. When Gacek said he did not believe that story, Robinson said he had transferred his truck to pay off a drug debt.
When Gacek searched the vehicle, he did not find any drugs. No canine was available, and Gacek decided not to make an arrest based on the residue that he had observed, so he allowed Robinson and Graves to proceed. However, Gacek thereafter communicated by text with Maine State Police Sgt. Kevin Rooney. In his texts Gacek identified the vehicle by model, color and license plate and informed Rooney that he had seen needles and drug residue. He stated that he was convinced he had missed drugs in the vehicle. In a subsequent phone call Gacek did not provide all the details of his interaction with Robinson and Graves, but Gacek did state that their stories had been inconsistent and they had been very nervous.
Sgt. Rooney went out to mile marker 36 on the Turnpike in Saco. At around 1:36 am on June 16, he observed the red Cobalt sedan travelling north and began following it. Although he observed some driving that he considered odd, he did not observe any traffic violations. However, he also ran the registration while following the vehicle and learned that the vehicle seemed to have an expired registration and that the license plate appeared to belong on a different vehicle. For that reason, Rooney activated his blue lights at around 1:38 am.
When he first observed the vehicle, it seemed to be following another car too closely even though there was very little traffic. Once he followed it, it changed lanes and began to drive approximately 10 miles below the speed limit.
Technically, the detention of the vehicle commenced approximately 30 seconds later, when the vehicle came to a halt at the side of the road. See Arizona v. Johnson, 555 U.S. 323, 332 (2009).
Rooney did not know that the vehicle had been registered the previous day using a pre-existing plate number because that information was not available when he ran the registration and had not been communicated to him by Gacek. Graves does not challenge the legality of Rooney's initial stop.
After the vehicle stopped, Rooney approached the vehicle and asked for driver's license and registration. Within several minutes he ascertained that the car was properly registered to a third party. However, based on the information he had received from Gacek and Rooney's own observations that both occupants of the vehicle were extremely nervous, Rooney reasonably suspected that there were drugs in the vehicle. He asked the driver, Robinson, to step out of the vehicle, conducted a pat-down search, and inquired where the vehicle was coming from. Robinson stated that he had been to Connecticut and had sold a truck there to a Dominican or Puerto Rican named "Frenchie." Robinson added that his vehicle had been searched by a law enforcement officer in New Hampshire and stated that Sgt. Rooney could also search the vehicle if he wanted to.
That the vehicle was registered to a third party was consistent with Rooney's suspicion, because he was aware that persons transporting narcotics often used vehicle belonging to others in an attempt to avoid any vehicle forfeiture in the event narcotics were discovered in the vehicle.
Robinson voluntarily gave his consent to search - consistent with the previous consent to search he had given in New Hampshire - and he did so almost immediately. The cruiser camera video of the stop (State's Ex. 3) has almost no audio because Rooney left his microphone in the cruiser. It indicates that Robinson exited the vehicle at Sgt. Rooney's request less than two minutes after Sgt. Rooney first approached the vehicle, that Rooney's initial discussion with Robinson lasted approximately a minute, and that consent was given at that time within three or four minutes after the stop. There is a brief snippet of audio from the cruiser camera video which confirms that, after initially conversing with Robinson, Rooney briefly returned to the cruiser approximately three and a half minutes after the stop and advised the dispatcher by radio that he was going to conduct a search of the vehicle. This timing is also consistent with Rooney's report (Defense Ex. 2).
There was a delay in performing the search for two reasons. The first was that Rooney was alone with the two occupants of the vehicle and for officer safety reasons did not want to perform the search until another officer was present. The second and more important reason was that Rooney decided to employ a dog in the search, and no dog was immediately available. Rooney asked for a dog approximately three minutes after he had informed dispatch that he was going to conduct a search. The closest available dog and handler was at the Portland Police Department, and within five minutes, according to State's Ex. 3, there was a radio message that a Portland canine was en route. Neither Graves nor Robinson objected that the search was taking too long.
In the interim Rooney continued to question Robinson, who stated that he was an opiate addict but had not used in a while. Approximately nine minutes after the stop Sgt. Rooney told Robinson, who had been standing with Rooney between the red Cobalt and the State Police cruiser, to stand in front of the red Cobalt. He then asked the passenger (defendant Graves) to exit the vehicle and patted him down. Before he did so, he asked Graves if he had anything on his person and Graves stated that he had a package of diabetic needles in his pocket. When asked if he was diabetic, Graves said he was not.
Graves removed the package of needles and stated that Sgt. Rooney could search him. In Graves's pockets Sgt. Rooney found some papers and unused baggies that appeared to be the kind used for packaging drugs. He then patted down Graves and found nothing more but again noted that Graves was extremely nervous, that his hands were shaking, and that he was tensing up while Rooney performed the pat down. At that point, Sgt. Rooney was still alone with the two occupants of the vehicle and with a legitimate concern for officer safety, Sgt. Rooney handcuffed Graves.
See United States v. Fornia-Castillo, 408 F.3d 52, 64 (1st Cir. 2005) (use of handcuffs does not necessarily transform valid Terry stop into de facto arrest). Graves was handcuffed approximately 11 minutes after the stop and two minutes after Graves exited the vehicle.
Waiting for the second officer and the canine, Sgt. Rooney questioned Graves, whose story was inconsistent with the statements previously given by Robinson. State's Ex. 2 shows that for much of this time, Rooney and Graves appeared to be conversing in an amiable fashion, and at one point Rooney gave Graves a cigarette.
Specifically, Graves stated that he and Robinson had been to Connecticut to sell a truck and to pick up the puppy in the vehicle, although Robinson had previously stated that he had owned the dog for several months. While he was waiting for the canine, Sgt. Rooney went back to speak with Robinson, who acknowledged that contrary to his earlier statements he had transferred the truck to pay off a drug debt. Subsequently, Sgt. Rooney questioned Graves about the inconsistency between what Graves had said and what Robinson had said about the puppy, and Graves acknowledged he had lied.
State's Ex. 3 indicates that the second officer, Sgt. Hare, arrived on the scene approximately 25 minutes after the stop, at around 2:00am. State's Ex. 3 also shows that Portland canine officer arrived approximately 10 minutes later - 33 minutes after the stop - and began a search with the canine at approximately 2:15am - 37 minutes after the stop. The Portland police dog showed significant interest in the front passenger compartment of the vehicle and on the front right side of the vehicle, and that caused Sgt. Rooney to reach into a recess behind the glove compartment, where he found a package wrapped with packing tape. As he opened the package, coffee grounds spilled out. In Sgt. Rooney's experience, drugs are often wrapped in coffee grounds because it is believed that this will interfere with the ability of canines to detect the odor of drugs. Inside the package, there were three white balls in plastic baggies, which appeared to be cocaine, cocaine base, and heroin. These were subsequently field tested and came back positive.
In the meantime the puppy in the red Cobalt had to be removed from that vehicle and the Portland canine officer had to be briefed on the situation.
The State offered evidence as to the reliability of the Portland dog, which does not appear to be contested by the defense.
Discussion
The State has the burden of demonstrating by a preponderance of the evidence the validity of the search undertaken by Sgt. Rooney, including whether there was a voluntary consent to search. The State has met that burden in this case.
The defense contention that the search of the vehicle in this case violated the Fourth Amendment is based on the U.S. Supreme Court's decision in Rodriguez v. United States, 135 S.Ct. 1609 (2015). Rodriguez ruled that a traffic stop becomes unlawful if it is prolonged beyond the purpose of the original stop in order for the police to perform a dog sniff. 135 S.Ct. at 1615-16. In this case, the defense argues, the justification for the stop was the apparent registration problem and once that was quickly resolved, any further extension of the stop requires suppression of the drugs that were eventually found.
However, as the Supreme Court noted in Rodriguez, the issue in that case was whether police routinely could "extend an otherwise-completed stop, absent reasonable suspicion, in order to conduct a dog sniff." 135 S.Ct. at 1614 (emphasis added). Moreover, the Rodriguez decision did not suppress the evidence found in the stop but remanded in order to determine whether "reasonable suspicion of criminal activity justified detaining Rodriguez beyond completion of the traffic infraction investigation." 135 S.Ct. at 1616-17.
In this case, Sgt. Rooney had a reasonable articulable suspicion - based on what he had learned from Gacek bolstered by what he had observed in his initial interaction with Robinson and Graves - that Robinson and Graves were transporting drugs. Reasonable articulable suspicion may be based on the collective knowledge of law enforcement agents. State v. Carr, 1997 MR 221 ¶ 7, 704 A.2d 353. Rooney's suspicion was based on the presence of used needles as reported by Gacek, the presence of what appeared to be drug residue as reported by Gacek, the existence of inconsistencies between their stories as reported by Gacek, and the extreme nervousness observed by both Gacek and Rooney himself. This was at least sufficient to allow some brief further inquiry.
Thereafter, almost immediately after asking Robinson to exit the vehicle, Sgt. Rooney obtained Robinson's consent to search the vehicle. This occurred within three or four minutes after the initial stop. Consent to search obtained after the reason for the initial traffic stop has been resolved has been found valid if, at the time of the request for consent, there is reasonable suspicion of drug activity. See United States v. Figueroa-Espana, 511 F.3d 696, 702-03 (7th Cir. 2007); United States v. Sanchez, 507 F.3d 877, 881-82 (5th Cir. 2007), judgment vacated and remanded on other grounds, 553 U.S. 1029 (2008); United States v. Contreras, 506 F.3d 1031, 1035-36 (10th Cir. 2007); United States v. Ellis, 497 F.3d 606, 613-14 (6th Cir. 2007); United States v. Gallardo, 495 F.3d 982, 987-88 (8th Cir. 2007); United States v. Simms, 385 F.3d 1347, 1353-55 (11th Cir. 2004); LaFave, Search & Seizure (5th ed. 2016) § 9.3(e) at n.306.
This was permissible under Pennsylvania v Mimms, 434 U.S. 106, 110-11 (1977). --------
In this case, Sgt. Rooney did not have to request consent because Robinson (the driver of the vehicle) volunteered consent to search the vehicle. This was offered so promptly as to dispel any inference that consent was coerced because Robinson thought his vehicle would not otherwise be allowed to leave.
Once consent was obtained, Sgt. Rooney was allowed to detain the vehicle long enough to perform the search so long as he was acting diligently and reasonably. See United States v. Sharpe, 470 U.S. 675, 686-87 (1985); United States v. Rosborough, 366 F.3d 1145, 1150-51 (10th Cir. 2004) (general consent did not limit duration of search); United States v. Alcantar, 271 F. 3d 731, 738 (8th Cir. 2001) (consent search of an hour upheld where neither occupant of vehicle objected to the duration of the search). Courts have upheld detentions longer than the 37 minute detention in this case when officers have not been dilatory but there has been a delay in obtaining a drug dog. See, e.g., United States v. White, 42 F.3d 457, 460 (8th Cir. 1994) (hour and 20 minute delay caused by remote location of drug dog); United States v. Frost, 999 F.2d 737, 741-42 (3d Cir. 1993) (one hour wait). In this case Sgt. Rooney acted diligently in requesting a dog shortly after consent to search was obtained, and a Portland canine was dispatched within live minutes. It was only because it took the canine officer approximately 27 minutes to travel to the scene from Portland that the search was delayed.
The defense argued at the hearing that Sgt. Rooney did not act with sufficient diligence because he could have requested a drug dog before the stop. However, the red Cobalt could have exited I-95 at any point before reaching Saco, and Robinson might not have consented to a search. Sgt. Rooney could not have been expected to have a drug dog waiting at roadside in Saco - and therefore unavailable if needed in Portland - for a vehicle that might never have arrived and a search that might never have happened.
The defense also argues that detaining the vehicle for 37 minutes amounted to a de facto arrest. If consent had not been given, this argument would have some traction, given that Graves was handcuffed approximately 10 or 11 minutes after the stop. However, the detention of Graves and Robinson resulted from Robinson's consent to search, which was given within four minutes of the initial stop. Accordingly, the court does not need to consider whether a de facto arrest occurred in this case or whether Sgt. Rooney had probable cause - as opposed to reasonable articulable suspicion - for a de facto arrest.
Finally, the defense does not appear to challenge that Sgt. Rooney was entitled to rely on the consent of Robinson, who as the driver had an appropriate relationship to the vehicle. See State v. Kremen, 2000 ME 117 ¶ 10, 754 A.2d 964. The defense also does not appear to challenge that the general consent, once given, extended to the entire car including the recesses of the glove compartment, and to the wrapped package found there. See United States v. Ross, 456 U.S. 798, 821 n.28 (1982); United States v. Rosborough, 366 F.3d at 1150-51 (general grant of permission to "go ahead" and search extended to the entire car).
Defendant's motion to suppress is denied. Dated: July 17, 2017
/s/_________
Thomas D. Warren
Justice, Superior Court