Opinion
CR-21-864
11-09-2022
STATE OF MAINE v. WINSTON MCLEOD Defendant
ORDER ON MOTION TO SUPPRESS
By a Superseding Indictment dated February 7, 2022, Defendant Winston McLeod (hereafter "McLeod") is charged with three counts of Aggravated Trafficking in Scheduled Drugs (17-A, M.R.S. §1105-A(1)), two counts of Unlawful Possession of Scheduled Drugs (17-A, M.R.S. §1107-A(1)), Refusing to Submit to Arrest (17-A, M.R.S. § 751-B(1)(A)), and Operating Without a License (29-A, M.R.S. § 1251(1)(A). On January 26, 2022, McLeod filed a motion to suppress regarding evidence found in McLeod's jacket and the vehicle he was operating. He also challenges the probable cause for arrest. Hearing on the motion was held on August 9, 2022. At hearing, testimony was received from Tr. Watson and Corp. Russell, both with Maine State Police. Also admitted into evidence were the following State exhibits:
Ex. 1- CD with recording of Trooper Watson's Watchguard cruiser video;
Ex. 2- HETL Controlled Substance Analysis; and
Ex. 3- CD with recording of convenience store surveillance video.
These findings of fact are made based primarily on the testimony of Tr. Watson. The surveillance video (Ex. 3) did not contain any audio, and the audio in the recording of the officer's Watchguard cruiser camera (Ex. 2) contained very limited audio that was discernible.
On April 26, 2021, Tr, Watson was following up on an investigation and assisting DHHS in a matter in which a young child had been found in the presence of a couple who possessed crack cocaine. Tr. Watson travelled to the home on Frog Pond Road in Turner where the couple resided. Tr. Watson had prior intelligence that illegal were drugs often dropped off at the home, including by a person named "Donnie". As the trooper arrived at the residence he observed a white mini-van leaving the driveway. Suspicious of drugs being dropped off at this location due to the prior history he was aware of, Tr. Watson ran the plate number of the white van and learned it was registered to an individual with last name of "Barbioni", a name he also recognized as associated with drug activity and thefts in the region. The officer did not recognize the driver, who was a male in his 20's or 30's, as being a "Barbioni". The trooper decided to follow the vehicle to initiate contact with the operator.
Tr. Watson initially lost contact with the vehicle, but soon located it on Rt. 4 in Turner. He followed the vehicle a short distance as it pulled into a convenience store and parked in front of the gas pumps. Tr. Watson parked his cruiser a short distance away from the gas pumps, such that his vehicle was not blocking or obstructing the white mini-van. No lights or sirens were activated. Tr. Watson approached the operator just as the driver was exiting the driver's compartment of the van and asked the driver if he had a moment to discuss a matter he was investigating. He told the operator he was investigating a matter at the home he had just observed him leaving and inquired what he knew to occur there. Through this exchange, the operator identified himself as McLeod, and told the officer he did not have a license or identification on him, but provided the trooper with his date of birth and Social Security number, McLeod told the trooper he did not know the people who lived at the house, and was there to drop off a pair of sneakers to a person he did not know well, whose name was "Donnie". He further stated he ended up not dropping the sneakers off because Donnie told him it was a bad time. Tr. Watson found McLeod's explanation suspicious, particularly as a person named "Donnie" was indicated as a person who often dropped off drugs at the home.
While speaking with the trooper McLeod received a phone call. Tr. Watson observed McLeod retrieve a cell phone from a zippered bag. When McLeod opened the zippered bag, Tr. Watson observed multiple cellphones and a large amount of cash which he estimated at $1000. Those observations heightened Tr. Watson's suspicion of drug activity. The trooper commented on the cash and McLeod responded that he worked in construction. At that,Tr. Watson noted McLeod to be wearing clean clothes and sneakers, inconsistent with working in construction. McLeod then asked if he could go into the store to pay for his gas and use the restroom, which Tr. Watson allowed.
While McLeod was in the store, Tr. Watson ran the status of McLeod's license and learned he was under suspension. At that point, based upon the totality of the circumstances and observations made, Tr. Watson made a request for a K-9 to come to the scene to perform a drug sniff of the white mini-van. Corp. Russell, who was in a nearby town with his trained and certified K-9 named Gus immediately went in route to the location.
When McLeod exited the store, Tr. Watson engaged him again and they walked to the area near the trooper's cruiser. Tr. Watson told McLeod he had learned his license was suspended. He told McLeod he was not going to arrest him for that, but he would not be allowed to drive the mini-van. Tr. Watson then asked if McLeod would give him permission to search the vehicle. McLeod declined, and also indicated the vehicle was not his, but rather belonged to his mother. McLeod got the person he indicated was his mother, Mrs. Barbioni, on the phone, and she too declined to grant permission to search the vehicle. Tr. Watson told Mrs. Barbioni a K-9 was coming to the location to perform a drug sniff on the mini-van, and she could retrieve the vehicle after it was released. There is no evidence the women who owned the vehicle arrived at the scene before the K-9 arrived or the vehicle was searched. Tr. Watson acknowledged at hearing that at this point in time, he would not have allowed McLeod to leave and would have detained him until the drug sniff had been completed.
While waiting for the K-9 to arrive, McLeod indicated to Tr. Watson that he was getting cold. Tr. Watson offered to have McLeod sit in his cruiser. McLeod declined and requested to get his jacket from the mini-van. Tr. Watson told McLeod he could have his jacket, but he would need to retrieve it for him. Tr. Watson testified this was out of concern McLeod could locate a weapon in the vehicle, as weapons are often associated with drug activity, and also out of concern McLeod could tamper with potential evidence located inside the vehicle. McLeod did not object to Tr. Watson's requirement he retrieve the jacket for him.
Both Tr. Watson and McLeod walked to the passenger side of the min-van, where Tr. Watson opened the passenger door and picked up the jacket. After picking up the jacket, he manipulated it to feel for any hard items that could be a weapon. In doing so, he did not feel anything hard, but felt something "squishy", about the size of a tennis ball, which he did not believe was a weapon. However, in this process, as he held the jacket up and it flipped over, a pocket of the jacket opened, and Tr. Watson saw a clear plastic baggie that contained a white powdery substance he believed to be cocaine. He estimated it's content at 20 grams, a felony amount. Tr. Watson pulled the plastic baggie out of the jacket pocket and showed it to McLeod. McLeod responded "Oh Damn", and then said the drugs were not his, Tr, Watson then began to initiate a felony arrest based on the type and amount of drugs found, and instructed McLeod to put his hands behind his back and advised him he was under arrest. McLeod responded "no". As Tr. Watson reached for McLeod, McLeod ran away. Tr. Watson chased McLeod down the road and into the woods for a quarter of a mile before apprehending him. The trooper placed McLeod in handcuffs and walked him back to the convenience store. As Tr. Watson returned to the store with McLeod, other officers, including Corp. Russel with his K-9, had arrived.
The record is not precise how much time elapsed from when Tr. Watson decided to detain the vehicle for a K-9 drug sniff to when Corp. Russell arrived with his canine. But based on Corp. Russell's testimony that he heard Tr. Watson make the request over the radio, and that he immediately went in route to the location from an adjacent town and arriving just as Tr. Watson was returning from his run into the woods to apprehend McLeod, the court can infer, and find, it was not an unreasonably long time nor an unreasonable delay. In addition, the store surveillance video (Ex.3) shows a second Maine State Police cruiser arriving on scene just a few minutes after McLeod ran away, which was less than 15 minutes after Tr. Watson had asked for a K-9 to be brought to the location. This would be consistent with Corp. Russell's arrival.
Although the officers on the scene believed that they had probable cause to search the mini-van based on finding the drugs in the jacket and the arrest of McLeod, they still chose to have the K-9 perform a drug sniff on the vehicle. Corp. Russel was there with his canine 'Gus" who was trained and certified to recognize narcotics, including methamphetamine, cocaine, cocaine base, and heroin. Corp. Russel walked Gus around the car three times. The first lap was to become orientated. On the second lap, Gus became interested at the front driver door seam, which was slightly unlatched. At that location Gus's sniffing increased and he licked at the door seam. Corp. Russel walked Gus around the vehicle a third time, this time in the opposite direction. On this lap, Gus again became very interested at the driver side door seam, again with increased sniffing, licking, whining, and acting frustrated and agitated. Based on his training and experience handling Gus for 7 years, Corp. Russel recognized Gus's behavior and actions as indicating he was "in odor", meaning he was responding to an odor he was trained to detect, namely illegal drugs. Based on the positive indicators from Gus for the presence of narcotics, the officers proceeded to search the mini-van.
Before initiating the search, Corp. Russel drove the mini-van away from the gas pumps to a more open area of the convenience store parking lot. Tr. Watson and Corp. Russel conducted the search, beginning in the front seating compartment, working to the rear. Tr. Watson searched the passenger side and Corp. Russell searched the driver side. In the rear storage area of the mini-van a luggage container was found. Corp. Russell opened the luggage container and found Ziplock bags which were believed to contain crack cocaine, powdered cocaine, and Fentanyl. The suspected drugs were sent to HETL for testing. The testing confirmed the substances found in the Ziplock bags were 444 grams of cocaine, 354 grams of cocaine base, and 1.9 grams of Fentanyl, Discussion.
1. Did Tr. Watson have a sufficient articulable suspicion to detain McLeod to have a canine sniff for drugs performed on the vehicle?
Tr. Watson acknowledged that after he learned McLeod's license was under suspension and he had requested a K-9, he would not have allowed McLeod to leave. For discussion purposes, the court will view this as a detention following a stop.
To conduct a constitutionally permissible traffic stop, an officer must have, at the time of the stop, an articulable suspicion that criminal conduct has taken place, is occurring, or imminently will occur, and the officer's assessment of the existence of specific and articulable facts sufficient to warrant the stop must be objectively reasonable in the totality of the circumstances. State v. Donatelli, 2010 ME43,¶11; State v. Lux, 1999 ME 136, ¶8. The suspicion for the stop must be based on information available at the time of the stop and cannot be bolstered by evidence secured by the stop. State v. Nelson, 638 A.2d 720,722 (Me. 1994). The reasonable suspicion standard requires more than mere speculation. Id.
The court finds Tr. Watson had an articulable suspicion McLeod was involved in illegal drug activity. He observed the white mini-van leave a home known for recent drug activity, and the mini-van was registered to a name also associated with drug activity. Although the officer did not know or recognize the operator, McLeod, his suspicions of McLeod's involvement with drug activity were supported by the unlikely assertion he was at the residence to drop off a pair of sneakers to "Donnie", a name also associated with drugs at that location. McLeod having multiple phones and a significant amount of cash, items also associated with drug activity, further supported the trooper's articulable suspicion. The trooper also found McLeod's explanation for the cash suspect. In short, there were sufficient facts available to Tr. Watson to support his articulable suspicion that McLeod was involved in illegal drug activity, Tr. Watson's detention of McLeod to perform a canine drug sniff was reasonable. Also, at that time McLeod would not have been allowed to drive the vehicle away as it had been determined his license was under suspension.
The court also finds the scope of detention reasonable. Once a defendant is seized, the scope of subsequent police conduct must be justified under the second Terry prong and evaluated to determine whether it is reasonable under all the circumstances. State v. Hill, 602 A.2d 793, 795 (Me. 1992). This determination involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. State v. Donatelli, 2010 ME 43, ¶ 13. Detecting illegal drug trafficking are a valid public interest or concern. Id. The manner of the detention was reasonable. Tr. Watson was alone, he had not drawn his weapon, and his cruiser was not blocking McLeod's. On the other hand, because McLeod's license was under suspension, Tr. Watson had appropriately told him he couldn't drive the vehicle. Lastly, the length of detention and intrusiveness was not unreasonable. Although the timeline is not precise, not much time elapsed from when Tr. Watson told McLeod he was going to have a canine do a drug sniff until the time Corp. Russel arrived with his dog to perform the sniff. Again, McLeod was not in a position to legally operate the vehicle in any event, being under suspension. And there is no evidence that Mrs. Barbioni had arrived yet to retrieve her van. And canine sniffs are viewed as minimally intrusive. See Donatelli, ¶ 17; citing City of Indianapolis v. Edmond, 531 U.S. 32,40,121 S.Ct. 447 (2000).
2. Did Tr. Watson violate McLeod's Fourth Amendment rights by conducting a pat-down search of the jacket?
The court views this as an issue to be reconciled under Terry. The pat-down of the jacket occurred somewhat after the fact, for as discussed above, McLeod was already under detention to allow for the canine sniff. The pat-down of the jacket was generated by McLeod asking for possession of the jacket because he was cold.
Following Terry, the legitimacy of an investigatory search or seizure requires a two-step analysis. The court must first consider whether the officer's action was justified at its inception; and second, whether the action taken was reasonably related in scope to the circumstances which justified the interference in the first place. State v. Hill, 606 A .2d 793,794 (Me. 1992); State v. Storey, 1998 ME 161, ¶12; both citing Terry v. Ohio, 392 U.S. 1,20, 88 S.Ct. 1868, 1879 (1968). The scope of search allowed by a pat-down is confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. State v. Storey, 1998 ME 161, ¶ 12, quoting Terry v. Ohio, 392 U.S. 1,20, 88 S.Ct. 1868, 1879 (1968).
This case is somewhat factually different from typical jacket search cases, in that McLeod was not wearing the jacket when patted -down, and the jacket was not initially within his reach. (See State v. Storey, 1998 ME 161 (pat-down of pockets following a traffic stop); State v. LeBlanc, 347 A.2d 590 (Me. 1975) (search of jacket after having probable cause to arrest); and State v. Pagnani, 2018 ME 129 (search of jacket worn at time defendant was advised she was under arrest)). When initially waiting for the canine arrive, the jacket was well separated from McLeod, sitting inside the car, while McLeod stood outside the vehicles with Tr. Watson, When McLeod first stated he was cold, Tr. Watson offered McLeod to sit in his cruiser. McLeod denied that offer and requested to retrieve his jacket. Tr. Watson told McLeod he would have to retrieve the jacket for him. This was because Tr. Watson was legitimately concerned that if McLeod was allowed entry to the vehicle he could retrieve a weapon or destroy or conceal evidence in the vehicle.
Both Tr. Watson and McLeod walked to the passenger side of the van, and McLeod never objected to the trooper retrieving the jacket for him. Under these facts, there is no reason Tr. Watson would still not be afforded the protections afforded by a Terry pat-down when the defendant was about to be allowed access to clothing that could contain a weapon. The circumstances justifying the detention at its inception still exist. Had McLeod been wearing the jacket at its inception, the trooper could have performed a pat -down search for weapons. If anything, McLeod asking to retrieve the jacket from his car after being detained for a brief period only heightens the risk, as he has had time to further reflect on his situation. Tr. Watson patting down the jacket before giving it to McLeod did not violate McLeod's Fourth Amendment rights.
Per Terry, Tr. Watson was permitted to do a brief pat down of the jacket for weapons. In doing this brief pat down of the jacket, the white powdery substance in a plastic baggie in pocket of the jacket became plainly visible. Lastly, the court finds that under the facts as articulated above, McLeod consented, impliedly if not expressly, to Tr. Watson retrieving the jacket for him.
3. Did Tr. Watson's seizure of suspected illegal drugs from the jacket exceed the scope of the pat-down search?
The State argues the finding and seizure of the drugs from the jacket did not require a warrant because the drugs were in plain view. A warrantless search is, as a matter of law, unreasonable unless: (1) it is supported by probable cause; and (2) exigent circumstances exist requiring prompt search, without the delay occasioned by the need for a warrant; or (3) the search is pursuant to another recognized exception to the warrant requirement. State v. Leonard, 2002 ME 125, ¶ 12. However, when police lawfully enter a constitutionally protected area, and subsequently evidence of a crime comes into "plain view", such may be searched without a warrant. State v. Harriman, 467 A.2d 745,748 (Me. 1983). Under the plain view doctrine, if police are lawfully in a position from which they can view an object, its incriminating character is immediately apparent, and the officers have a lawful right of access, they may seize it without a warrant. State v. Storey, 1998 ME 161, ¶18, quoting Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301,2307 (1990) In this case, the trooper's sighting of the plastic baggie occurred as a result of the pat-down of the jacket. As stated, the scope of search allowed by a pat-down is confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. State v. Storey, 1998 ME 161, ¶ 12, quoting Terry v. Ohio, 392U.S. 1,20, 88 S.Ct. 1868, 1879 (1968).
In reaching these findings, the court has closely re-listened to Tr. Watson's testimony. On cross-examination he testified that he picked up the jacket and manipulated it for hard items that could resemble a weapon. He testified he did not feel anything hard, but did feel something squishy, the size a bit smaller than a tennis ball. He did not feel anything that led him to believe there was a weapon. But in this process, a white powdery substance in a plastic baggie became visible as a pocket of the jacket opened. The court finds the drugs in the pocket of the jacket were in plain view.
Although the trooper agreed with McLeod's counsel that "but for manipulating the jacket he would not have seen into the pocket", the court does not find that the trooper purposely manipulated the jacket to open the pocket. Rather, the pocket inadvertently opened, allowing the drugs to become visible in plain view. Tr. Watson's seizure of the drugs from the jacket pocket did not exceed the scope of the pat down search and the drugs were in plain view.
4. Was the arrest of McLeod illegal?
Law enforcement officers are authorized to make a warrantless arrest under certain circumstances, including when an officer has probable cause to believe that a person has committed a Class A, Class B, or Class C crime. 17-A M.R.S.A. § 15(1)(A)(2); State v. Lagasse, 2016 ME 158, ¶13. Probable cause exists where facts and circumstances within the knowledge of the officers and of which they have reasonably trustworthy information would warrant a prudent and cautious person to believe that the arrestee did commit or is committing the felonious offense. Id. Probable cause includes the collective information known to the police and is not limited to the personal knowledge of the arresting officer, and the test is an objective standard. Lagasse, at ¶ 14. The probable cause standard is flexible and based on common sense. State v. Flint, 2011 ME20,¶12; see Texas v. Brown, 460 U.S. 730,742, 103 S.Ct. 1535 (1983). Although requiring more than mere suspicion, probable cause can be satisfied on less than the quantum of proof necessary to establish a fact by a fair preponderance of the evidence. Id., see also State v. Lux, 1999 ME 136, ¶ 10.
Based on his training and experience, Tr. Watson believed the plastic baggie containing a white powdery substance seized from the jacket pocket was 20 grams or more of cocaine. These facts gave Tr. Watson probable cause to believe McLeod had committed a felony level drug crime, giving him probable cause to arrest. The arrest of McLeod was legal and based on sufficient probable cause.
5. Did the search of the vehicle violate McLeod's 4th Amendment rights?
Upon the arrest of McLeod for felony level drug possession, and his attempt to flee, probable cause existed to search the vehicle. But Tr. Watson had previously made a decision to detain the mini-van to conduct a canine drug sniff. The court has already found that such detention was reasonable and did not violate McLeod's rights. And notwithstanding the officers' belief they had probable cause to search the vehicle pursuant to arrest, they still chose to first conduct the canine drug sniff.
The existence of probable cause based on an alert by a drug dog depends upon the dog's reliability. United States v. Owens, 167 F.3d 739,749 (1st Cir. 1999), citing United States v. Race, 529 F.2d 12, 14 (1st Cir. 1976). In this case, the canine "Gus" was trained and certified to detect four types of illegal drugs, Corp. Russell had been Gus' handler since 2014, and Gus had been trained for narcotics detection since 2015. As a result of that seven years of experience working with Gus in narcotics detection, Corp. Russel had become familiar with the behavioral cues the dog exhibited for positive detection of narcotics. The court finds that Gus was reliable in his detection abilities.
Corp. Russel led Gus around the mini-van three times. The first time around was to orientate Gus to the vehicle. On both the second and third time around, Gus became frustrated and agitated at the driver side door jam, indicating he was in odor for illegal drugs. Based upon the behaviors Gus exhibited upon circling the mini-van three times, the court finds that Gus provided a reliable indication the mini-van contained illegal drugs. As a result of the indications given by the canine sniff, the officers had probable cause to believe the vehicle contained illegal drugs and probable cause to search. McLeod's rights were not violated by the search of the minivan.
In summary, the court finds that McLeod's Fourth Amendment rights were not violated by the search and seizure of drugs from his jacket or the mini-van, and were not violated by his arrest. Defendant's motion to suppress is DENIED.