WILLIAM K. SESSIONS, III, District Judge.
Defendant Michael Foreste is charged with knowingly and intentionally possessing with the intent to distribute a mixture or substance containing a detectible amount of Oxycodone, a Schedule I controlled substance. Foreste filed a motion to suppress evidence seized from his person in a search incident to arrest, asserting that he was subject to an unreasonable investigatory detention and a subsequent de facto arrest. For the reasons stated below, the Court denies the motion to suppress.
I. Factual Background
On April 2, 2012, Michael Foreste was a passenger in a rental car driven by Telly Cesar traveling north on I-91 in Massachusetts when Trooper Rachel Loiselle of the Massachusetts State Police pulled the vehicle over for speeding. Loiselle testified that she initially became suspicious of Foreste and Cesar when she asked Cesar for his license and registration. Cesar mumbled his response, and when she asked Cesar to repeat himself, Foreste answered for him. Foreste then explained the details of their trip without being asked by either Loiselle or the trainee trooper working with her. Foreste's "overly communicative" behavior struck Loiselle as "odd." Tr. 75.
Loiselle contacted Sergeant Eric Albright of the Vermont State Police to request information on Foreste because he is a Vermont resident and the rental car was registered in his name. Foreste gave Loiselle a rental agreement for the vehicle which was over a month past its expiration date. Loiselle contacted dispatch and asked the officer to investigate the agreement with the rental car company. While waiting for the results of the call, Loiselle returned to the vehicle to explain the reason for the delay. Foreste then gave her another rental agreement with a more recent expiration date. The car rental company informed the dispatch officer that the rental agreements were fine as long as the car was eventually returned. The trainee trooper Loiselle issued a citation for speeding and Loiselle released the car before Albright called back.
Albright contacted Detective Dan Merchand with the Burlington Police Department to get more information about Foreste after Loiselle called. Merchand told Albright that according to a confidential informant Foreste was a "kilogram level cocaine and Oxycontin dealer in the Burlington area." Gov't's Opp'n to Mot. to Suppress 1, ECF No. 20 [hereinafter Gov't Mot.]. Albright then called Inspector Mark Heberts from the Vermont Department of Motor Vehicles. Heberts is a canine handler who works with narcotics certified canine named Corrie. Albright asked Heberts to "start to head in [Albright's] direction" so that he would be "prepar[ed] to have whatever tools [he] might deem necessary in the course of an investigation like this at roadside." Tr. 11, ECF No. 31. Albright also called Special Agent Thomas Doud of the Drug Enforcement Administration to "see if he had any information on [Foreste or Cesar]" because Merchand was investigating Foreste "in conjunction with Special Agent Doud." Albright was unable to reach Doud and left him a voice mail. Albright then drove toward I-91 near Guilford expecting to encounter Foreste.
Albright observed Foreste's vehicle roll through a stop sign while exiting the parking lot of the Welcome Center in Guilford. Albright followed the vehicle onto I-91. He then noticed "an item hanging off of the rearview mirror...." Albright stopped the vehicle at approximately 1:40 p.m. after following the vehicle for one to two miles. Albright approached the vehicle on the passenger side and spoke to Cesar and Foreste. Cesar provided his driver's license and Foreste provided the rental agreement for the vehicle. Albright noticed that Cesar's "speech was somewhat mumbled and difficult to hear." Tr. 17. He also "observed what [he] believed to be marijuana chafe or material on Mr. Cesar's lap, in the groin area of his pants." Tr. 17. Albright "ordered [Cesar]from the car to further investigate whether or not he was in possession of narcotics and/or under the influence and operating the vehicle as such at that point." Tr. 19.
Cesar and Albright "step[ped] to the rear of the car" where Albright asked Cesar if he had anything that could hurt Albright. Tr. 20. Cesar stated that he did not. Tr. 20. Albright and Cesar then sat in the front seat of Albright's vehicle while Albright checked Cesar's license, looked at the rental agreement, and checked for warrants. Tr. 20. Albright asked Cesar about his trip, and Cesar told him that he and Foreste were traveling "from the area of Valley Stream, New York" to Bristol, Vermont. Tr. 20. Albright gave Cesar a written warning for the failure to stop at the stop sign and the obstructed windshield violation. Cesar gave Albright permission to speak with Foreste, and Albright and Cesar exited the police car. Tr. 20.
Albright spoke with Foreste about his trip with Cesar. Foreste "also indicated that they were coming from the Long Island area." Tr. 23. Albright "explained to [Foreste] that [he] saw what [he] believed to be marijuana on Mr. Cesar's lap" and asked Foreste if Cesar "possessed some marijuana in the car or had been smoking earlier." Tr. 23. Foreste told Albright that "there was absolutely no way that he did or that he had been." Tr. 23. At 1:52 p.m., Albright asked Foreste for consent to search the vehicle and he refused. After Foreste denied consent, they "were kind of in a holding pattern" because Albright was waiting for Inspector Heberts to arrive. Tr. 25. At that time, Foreste began to exhibit "some physical changes" indicating nervousness. Tr. 23. Albright also noticed "a white residue on the hairs and membrane inside [Foreste's] nostrils consistent with... having ingested narcotics nasally." Tr. 35. Albright spoke to Agent Doud at 1:54 p.m. Doud told Albright that "he had information that Mr. Foreste was involved in cocaine and Oxycontin distribution in the Burlington area." Tr. 25. Doud also told Albright that narcotics canines had positively alerted to the odor of narcotics on three rental cars returned by Foreste in the past few months. Tr. 25. After speaking with Doud, Albright informed Foreste that a narcotics canine was on its way.
Heberts arrived at 2:18 p.m. Heberts and Corrie "perform[ed] an exterior scan of the vehicle." Tr. 28. Heberts told Albright that Corrie had "alerted to the presence of narcotics odors coming from the vehicle." Tr. 28. According to Heberts's affidavit, Corrie alerted to a number of locations on the vehicle, including the passenger window where Foreste was seated. Gov't Ex. 2. Albright again requested consent to search the vehicle, and Foreste again refused. Albright asked Foreste to "exit the vehicle for the purposes of securing the vehicle for the warrant application." Tr. 28. Albright asked for consent to search Foreste's person, which was denied. At that point, Albright "detained him in handcuffs for the purpose of applying for a search warrant for his person as well." Tr. 28.
Albright detained Foreste and Cesar in separate holding cells at the state police barracks for approximately four hours while waiting for the search warrant to issue. Def.'s Mot. to Suppress 3, ECF No. 16 [hereinafter Def.'s Mot.]. Foreste was handcuffed to the wall of the cell and monitored via video surveillance. Tr. 63. The search warrant was issued at 6:05 p.m. Tr. 38. Albright commenced a search of the vehicle at 6:20 p.m. and found "prescription drugs that were not in their designated container." Def.'s Mot. at 3. The prescription drugs were in a pill bottle bearing Foreste's name. Def's Mot. at 3. Albright called Detective Merchand again and "asked him if there was any other information about where Mr. Foreste hid any narcotics." Tr. 45. Merchand "checked with his informant" and called Albright back to tell him that Foreste "frequently" hid the narcotics "taped to his legs or his thighs." Tr. 45. Albright "officially" arrested Foreste and searched him incident to the arrest between 6:50 and 7:00 p.m. Albright found two bags containing approximately 654 Oxycodone pills "in [Foreste's] boxer briefs." Tr. 45.
II. Reliability of Canine Alert
After the suppression hearing, the Supreme Court issued its decision in Florida v. Harris, 133 S.Ct. 1050 (Feb. 19, 2013), which established the appropriate standard for determining whether a positive alert by a canine during a traffic stop provides probable cause to search a vehicle. Under Florida v. Harris , a court should find probable cause to search when the State "produce[s] proof from controlled settings that a dog performs reliably in detecting drugs" and the defendant does not contest the State's showing. 133 S.Ct. at 1058. The Court stated that a defendant "must have an opportunity to challenge such evidence of a dog's reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses." Id. at 1057.
In Harris, the State established the canine's reliability by presenting evidence that the canine had "successfully completed two recent drug-detection courses and maintained his proficiency through weekly training exercises." Id. at 1058. On cross-examination, the defendant focused on the canine's field performance. In particular, the defendant challenged the search of his vehicle because none of the drugs that the canine was trained to detect were found in the vehicle. The Court held that the defendant did not rebut the ...