Opinion
Criminal No. 01-25-P-H
July 23, 2001
Brian Goodine, Peter E. Rodway, Esq. aka, Dwayne Goodine, Rodway Horodyski, Portland, Me.
U.S. Attorneys, JONATHAN A. TOOF, OFFICE OF THE U.S. ATTORNEY, PORTLAND, ME.
RECOMMENDED DECISION ON MOTION TO SUPPRESS
Defendant Brian Goodine, charged with conspiracy to distribute and possess with intent to distribute cocaine base and possession with intent to distribute and aiding and abetting the possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A) and 846 and 18 U.S.C. § 2, seeks to suppress an out-of-court identification made by Special Agent Katherine Barnard of the Maine Drug Enforcement Agency. Motion to Suppress Identification ("Motion") (Docket No. 28) at [2]-[4]. I recommend that the following findings of fact be adopted and that the motion be denied.
I. Proposed Findings of Fact
On March 15, 2001 Barnard, operating undercover, purchased crack cocaine from co-defendant Ricardo King, from whom she had previously made such purchases. She met King by arrangement in a parking lot in Old Orchard Beach. As was their custom, she drove to the site and, when King arrived, she got out of her car and entered the vehicle he was driving. On this occasion, unlike her other purchases from King, King was accompanied by a male passenger in the front seat. Barnard got into the back seat and asked who the male passenger was. King informed her that the passenger was his brother, and the passenger turned to look at Barnard but did not speak to hear. She completed her purchase, reentered her own car, and left. The transaction took no more than five minutes.
On March 19, 2001 Special Agent Boyle of the Maine Drug Enforcement Agency asked Barnard, who had not been involved in the arrest of the defendant that day at the Holiday Inn Express in Saco, Maine, to look at some photographs. She met with Boyle and looked at eleven digital photographs of four individuals. She recognized King and also identified Goodine as the man who had been sitting in the front seat of King's vehicle during her purchase of crack cocaine on March 15, 2001.
Barnard knew at the time she viewed the photographs that King had been arrested. She knew that the photographs were of people who had been arrested that day in Saco. When Boyle handed her the photographs, he only asked her to look at them. When she wrote a report about her review of the photographs, she did not mention that she had seen a series of photographs.
II. Discussion
Eyewitness identification of a defendant at trial is barred following a pretrial identification by photograph "only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). If the procedure was impermissibly suggestive, the identification may nonetheless be admitted provided it is determined to be reliable in the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 199 (1972).
[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Id. at 199-200. "[R]eliability is the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The Biggers factors are to be weighed against the corrupting effect of the suggestive identification itself. Id.
The circumstances under which Barnard viewed the photographs were somewhat suggestive. It is not necessary to determine whether they were impermissibly suggestive, however, because, assuming arguendo that they were, see generally United States v. Bouthot, 878 F.2d 1506, 1514 (1st Cir. 1989), application of the Biggers factors compels a conclusion that the identification was reliable and the likelihood of misidentification was low. In this case, Barnard testified that, out of concern for her own safety, she slid to the center of the back seat of King's vehicle so that she could see both men in the front seat, and that Goodine turned to look at her. As a trained law enforcement officer, Barnard was "not a casual or passing observer," Manson, 432 U.S. at 115, and both her opportunity to view Goodine and her degree of attention weigh in favor of reliability of her identification. Barnard's written report concerning the transaction described Goodine only as a black male, which he clearly is, but the accuracy of this description has little value due to its lack of specificity. Barnard's level of certainty in her identification of Goodine when she viewed the photographs and at the hearing was high. The length of time between the crime and the viewing of the photographs was only four days. As I stated on the record at the hearing, I found Barnard's testimony to be entirely credible. Considered as a whole, the Biggers factors direct a conclusion that the identification was reliable and not likely to be erroneous. The evidence presented does not begin to suggest "a very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384.
The facts surrounding the identification at issue here cannot be distinguished from those set forth in United States v. Maguire, 918 F.2d 254 (1st Cir. 1990), for any relevant purpose. In that case, a police officer was shown photographs of five white males and was told that the photographs depicted known associates of two individuals already arrested in connection with a bank robbery; the officer had seen four white males acting suspiciously in the vicinity of the bank immediately after the robbery. Id. at 258-59, 263. The next day, the officer was shown six photographs. Id. at 263. On both occasions the officer picked out the photograph of the defendant as one of the men he had seen. Id.
The First Circuit held that both identifications satisfied the reliability index set out in Biggers.
III. Conclusion
For the foregoing reasons, I recommend that the defendant's motion to suppress Barnard's identification be DENIED.
NOTICE
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days after being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.
RECOMMENDED DECISION ON MOTIONS TO SUPPRESS
Defendants Brian Goodine and Gary Julien, charged with conspiracy to distribute and possess Fwith intent to distribute cocaine base and possession with intent to distribute and aiding and abetting the possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A) and 846 and 18 U.S.C. § 2, seek suppression of evidence found in and near the hotel room in which they were arrested on March 19, 2001. Defendant Goodine's Motion to Suppress Evidence ("Goodine Motion") (Docket No. 19) at [4]-[5]; Motion to Suppress and Motion to Join Defendant Goodine's Motion to Suppress Evidence (Docket No. 20) at [1]-[2]. An evidentiary hearing was held before me on July 19, 2001. I recommend that the following findings of fact be adopted and that the motions be denied.
I. Proposed Findings of Fact
On March 14, 2001 Ricardo King rented Room 206 in the Holiday Inn Express in Saco, Maine. Brian Goodine stayed in that room with King that night and every night thereafter until March 19, 2001. On March 16, 2001, Gary Julien came to the room and spent the night. He left the next day but returned with a friend, Bertram Leslie, on March 18, 2001. Both Julien and Leslie stayed in the room the night of March 18, 2001. Julien was "just visiting" on both occasions. He brought some clothes with him when he stayed the second time.
The manager of the Holiday Inn Express called the Saco Police Department several times to report that her employees had reported a strong odor of marijuana coming from Room 206 and that the occupants of the room would not allow housekeeping personnel to enter the room. At some point, the Saco police checked the registration numbers of the vehicles used by the occupants of that room and learned that both were rental vehicles. This information was known to the Saco police by 9:30 a.m. on March 19, 2001. Following another call from the manager that afternoon, Detective Sergeant David Loranger of the Saco police decided to visit the room. His intent was to placate the manager. A roller hockey tournament was taking place near the hotel and Loranger expected to find partying college students in the room. He took another plainclothes detective and two uniformed officers with him.
Loranger arrived at the hotel at approximately 2:40 p.m. and took a courtesy key to Room 206 from the manager. Only Rooms 206 and 225 were occupied on the second floor. As the officers approached Room 206 there was a very strong odor of marijuana. Loranger walked to the door of Room 225, which was at the opposite end of the hall from Room 206, and noted that the odor had almost completely dissipated when he reached Room 225. One of the officers put a piece of black tape over the peephole in the door of Room 206. Loranger could hear voices inside the room. He knocked and received no response. He knocked again and announced, "Police." He then heard rustling noises in the room and the flushing of a toilet. Loranger believed at that point that the occupants of the room were trying to destroy evidence of criminal activity. He tried to use the courtesy key to enter the room, but the internal security lock was engaged, rendering the key useless. He then knocked and kicked on the door. He knew that the door could not be opened by kicking it. None of the officers had yet drawn their weapons.
After the passage of a total of approximately 45 seconds from the time of the initial knock, Ricardo King opened the door, stepped back and gestured with his hands at his sides in a manner that Loranger perceived as an invitation to enter the room. Loranger saw Goodine and Julien beside an open window at the far end of the room and another male in a corner. None of the occupants of the room made any effort to block the officers' entry. Marijuana smoke was thick inside the room. The occupants of the room were moving around. Out of concern for their safety, the officers drew their weapons upon entering the room and directed the occupants to get down.
On the floor between the two beds in the room Loranger noticed two bags of what he believed to be crack cocaine. He was not able to see this area from the doorway; only after he entered the room did these bags come into plain view. All four occupants of the room were arrested for possession of scheduled drugs, a violation of Maine law. Loranger took King into the bathroom, where King told him that the toilet had been flushed after Loranger knocked because King had been going to the bathroom. Loranger noticed green leafy material and tan paper in the toilet; the paper had plant residue in it. He did not mention the material in the toilet in his written report.
Detective Pellerin, who had accompanied Loranger, directed Loranger's attention to items on the ground below the open window. When Loranger went outside the building, he noticed that the window to Room 206 was the only window that was open on that side of the building. The outside temperature was slightly above the freezing mark. On the ground directly below the window the officers found scales, marijuana, cocaine, razor blades, an ashtray and plates.
Loranger contacted the Maine Drug Enforcement Agency and asked an agent to obtain a search warrant for the room. The room was sealed until the search warrant was received, whereupon it was searched. Exhibit C to the Government's Objection to Defendants Goodine and Julien's Motions to Suppress ("Objection") (Docket No. 24) is an inventory of the items taken from the room.
II. Discussion
A. Standing
The government initially took the position that neither Goodine nor Julien had standing to object to the search of the hotel room or the area outside the window. Objection at 4-5. At the hearing, the government withdrew this argument with respect to Goodine but pressed it as to Julien.
[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society."
Minnesota v. Carter, 525 U.S. 83, 88 (1998), quoting Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12 (1978). "The burden of proving a reasonable expectation of privacy lies with the defendant. The defendant must demonstrate a privacy expectation in both the item seized and the place searched."
United States v. Mancini, 8 F.3d 104, 107 (1st Cir. 1993). A defendant who offers no evidence of personal interest in a hotel room registered to another beyond being present at the time of the search has not met this burden. United States v. Irizarry, 673 F.2d 554, 556 (1st Cir. 1982).
Here, the evidence establishes that Julien was a guest in the room registered to King, albeit under an alias, on two nonconsecutive nights, including the one immediately preceding the arrest and search. The only reasonable interpretation of the evidence is that Julien was King's guest in the room. That is sufficient to provide him with a reasonable expectation of privacy in the room and thus with standing to contest the search. Minnesota v. Olson, 495 U.S. 91, 98 (1990); United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991); United States v. Brooks, 1997 WL 327087 (W.D.Va. June 11, 1997), at *2.
B. Probable Cause
The defendants contend that the officers lacked probable cause to enter Room 206 and that their initial search of the room was therefore illegal. Goodine Motion at [2]-[4]. Goodine relies on Johnson v. United States, 333 U.S. 10 (1948), a case in which he asserts the facts are "strikingly similar" to those present here, Goodine Motion at [3]. In Johnson, police recognized a strong odor of burning opium coming from a particular hotel room. 333 U.S. at 12. They knocked and identified themselves. Id. After a slight delay accompanied by some "shuffling or noise" in the room, the defendant opened the door, stepped back, and allowed the police to enter. Id. While rejecting the defendant's contention that odors alone can never provide sufficient evidence to constitute probable cause for a search, id. at 13, the Supreme Court held that the search was invalid because the officers were required to obtain a search warrant given the fact that, inter alia, "[n]o evidence or contraband was threatened with removal or destruction," id. at 15. The government does not address Johnson in its opposition, but does cite both older and more recent case law.
The distinction between the facts in this case and those presented in Johnson is a critical one. Here, before the officers entered Room 206, but after they had announced their presence, Loranger heard the toilet flushing. He knew from his training and experience that this was a means frequently used to discard illegal drugs. Coupled with the strong odor of marijuana coming from the room and the sound of movement after the officers had announced their presence, the flushing would lead a reasonable police officer to conclude that evidence or contraband was indeed threatened with removal or destruction. See United States v. Delguyd, 542 F.2d 346, 351 (6th Cir. 1976) (rustling noises and flushing of toilet inside apartment after officers announced their identity outside door allows reasonable person to conclude that evidence being destroyed and supplies exigent circumstances to justify warrantless entry). See also United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (need to invoke exigent circumstances exception to warrant requirement particularly compelling in narcotics cases, because evidence can be so quickly destroyed).
The defendants also argue that there was no probable cause for issuance of the search warrant because it was based on an affidavit that reported that drugs had been found in Room 206 during the initial entry. Motion at [4]-[5]. Because I conclude that the cocaine on the floor between the beds in Room 206 was not discovered in the course of an illegal search or arrest, this contention must also fail.
III. Conclusion
For the foregoing reasons, I recommend that the defendants' motions to suppress the evidence taken from Room 206 in the Saco Holiday Inn Express and from the ground outside the open window in that room be DENIED.
The defendants do not assert a right to have the evidence seized from the ground below the open window suppressed on any basis other than that argued with regard to the entry without a search warrant into Room 206 itself.
NOTICE
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days after being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.