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United States v. Mayo

United States District Court, Second Circuit

November 6, 2013




Co-Defendants Thomas Savard and Willie E. Mayo, Jr. are charged with knowingly and willfully conspiring to distribute heroin, a Schedule 1 controlled substance, in violation of 21 U.S.C. § 841(a)(1). Indictment, ECF No. 30. The charges resulted from the discovery of 83 grams of heroin following a stop and search of Savard's vehicle by state law enforcement. Upon discovery of the heroin, police seized Mayo's cell phones and federal agents later searched the phones without a warrant. Savard filed a motion to suppress evidence obtained from the stop of his motor vehicle, his subsequent interrogation by law enforcement, and the search of his vehicle. Mayo joined Savard's motion to suppress and additionally filed a motion to suppress any evidence discovered through the warrantless search of his cell phones. For the reasons stated below, the Court DENIES the motion to suppress the evidence seized during initial stop and the search of the vehicle, ECF No. 49. The Court finds that the warrantless search of Mayo's cell phone was in violation of the Fourth Amendment, but DENIES Mayo's motion to suppress the evidence, ECF No. 50, based on the good faith exception.


I. Initial Stop of Vehicle

On March 27, 2013, Co-Defendant Savard was driving north on I-89 through Williamstown, Vermont in a Cadillac with Co-Defendant Mayo and two other passengers (both co-defendants in this proceeding, but not parties to these motions). Aff. Sergeant Eric Albright ("Albright Aff.") 1, ECF 53-1. At approximately 9:30 a.m., State Police Sergeant Eric Albright observed the Cadillac encroaching onto the divider line. Albright also observed the Cadillac's driver operating what appeared to be a cell phone at the steering wheel. Due to the vehicle's encroachment and the driver's use of his phone while driving (an apparent violation of Vermont's law against texting while driving), Sergeant Albright put on his emergency lights and directed the vehicle to pull over.

Sergeant Albright approached the Cadillac on the passenger's side and asked for the operator's documents. He observed "several indicators of criminal activity" through the open passenger-side window, including what appeared to be a small amount of marijuana on the center console and "blunt guts"[1] in the console and in the lap of a passenger in the back seat. Id. When Albright asked clarifying questions about the passengers and their journey, the occupants of the vehicle did not answer immediately and acted in an evasive manner. Albright also noticed that the front seat passenger tried to block his view into the car. Based on these observations, Albright was "highly suspicious of the occupants in [the] vehicle" and suspected criminal activity. Id. at 2. He asked Savard to accompany him to the police cruiser for further questioning; Savard consented.

II. Detention and Interrogation of Savard

Once in the police cruiser, Sergeant Albright immediately called dispatch for backup. Recorded Motor Vehicle Stop State Trooper Video/Audio Recording ("Recording") Tr. 5:14, ECF No. 54-1. He then proceeded to question Savard. Albright learned in the course of questioning that Savard and his passengers were returning from Brooklyn, New York where they had gone out to a night club for one passenger's birthday. However, Albright observed that Savard was dressed in a "tattered, dirty pair of sweatpants." Albright Aff. 2. Savard told Albright that they had spent the night at the residence of one of the other passengers but could not identify his last name. Albright also asked Savard about the marijuana in the center console; Savard denied that there was any marijuana in the vehicle. He nonetheless admitted that he had a history of drug abuse, and that he had cooperated with Burlington Police in another drug investigation. During the interrogation in the police cruiser, Albright did not permit Savard access to his cell phone or to call his lawyer and refused Savard's requests to tie his shoes and to exit the vehicle to urinate. He informed Savard that he was not under arrest and that he would be permitted to exit the vehicle as soon as another officer arrived at the scene.

Finding that Savard's answers further supported his suspicions of illegal activity, Albright asked if he could search the Cadillac. Savard initially refused. At that point, Albright had determined that he had probable cause to seize the vehicle and apply for a search warrant. Thus, Albright told Savard that he would seize the vehicle and apply for a warrant from a judge to search it if Savard refused to give consent. He told Savard that he could allow Albright to search the vehicle then, or wait for him to seek a warrant. Savard then consented to a search. Albright read a Consent to Search card aloud to Savard, and Savard signed the card granting Albright consent to search the vehicle.[2] Backup arrived shortly after Savard signed the consent form.

III. Search of Vehicle and Cell Phones

Upon receiving consent to search the car, Albright returned to the Cadillac where he questioned the three remaining passengers while the backup officer remained with Savard. These passengers were identified as Co-Defendants Mayo, Denzlie Boston, and Samantha Freda. Albright directed the three passengers to exit the vehicle and asked for consent to search their individual persons. All three consented and were searched; no incriminating evidence was found. Mayo, Boston, and Freda then waited on the side of the road while Albright searched the car. While searching the vehicle, Albright found "green leafy plant material, " additional "blunt guts" on the rear seat, and what he suspected to be a "marijuana roach." Albright Aff. 2-3. He also found a backpack containing three empty heroin bags and a metal spoon. Hidden behind the lining in the trunk, he found a square package wrapped in brown packaging tape "consistent with how narcotics are packaged in bulk." Id. at 3. He opened the package to find smaller wax paper bags also consistent with packaging for heroin. The wax paper bags contained a tan powder that appeared to be heroin. Suppression Hr'g Tr. 42:13-16, Sept. 12, 2013. At the time, Albright estimated that the vehicle contained about a kilo of heroin. He proceeded to place all four occupants of the vehicle under arrest. Albright seized four cell phones from the vehicle along with multiple charging cords, including two of Mayo's cell phones, both smartphones.[3]

The following day, DEA Task Force agents at the State Police Barracks in Middlesex, Vermont used a Cellebrite machine[4] to download the contents of Mayo's phones, including the cell phone number, a contacts list, text messages, call records, and assorted images. Def. Mayo's Mot. Suppress & Mot. Join Co-Def. Savard's Mot. Suppress ("Mayo Mot.") 2-3, ECF No. 50. Before the agents examined the phones, they contacted the U.S. Attorney's Office to confirm that the case would be prosecuted federally. It is Vermont state law enforcement's policy to obtain consent or a warrant for all cell phone searches, according to the Government's witness. Suppression Hr'g Tr. 11:25-12:6, 13:14-20, Sept. 30, 2013. The federal investigators did not obtain a warrant to search the contents of the phones; instead, they maintain that it was a search incident to lawful arrest and that no warrant was necessary.


The motion to suppress filed by Co-Defendant Savard challenges (1) the initial stop of the vehicle as unsupported by reasonable suspicion; (2) his subsequent detention and interrogation in the police cruiser as unlawful restraint; and (3) his consent to search the vehicle as the involuntary product of police coercion. Co-Defendant Mayo joins in this motion and additionally challenges the warrantless search of his cell phone after the initial seizure. The search of the vehicle and the search of the cell phones will be addressed separately below.

I. Vehicular Stop, Detention, and Search

A. Initial Stop

The Fourth Amendment establishes a constitutional right against "unreasonable searches and seizures." U.S. Const. amend. IV.[5] A police officer "seizes" a vehicle and its occupants within the meaning of the Fourth Amendment whenever he or she executes a vehicular stop, however brief; therefore, the stop must be reasonable under the circumstances. Whren v. United States, 517 U.S. 806, 809-10 (1996). Traffic stops are presumptively reasonable under the Fourth Amendment where the officer has reason to believe that a traffic infraction has occurred. Brendlin v. California, 551 U.S. 249, 249 (2007). In this case, the initial stop of the vehicle was adequately supported by Albright's observance of two traffic infractions: he saw Savard veering over the lane divider (a violation of Vt. Stat. Ann. Tit. 23, § 1038) and operating what appeared to be a cell phone while driving (a possible violation of Vt. Stat. Ann. Tit. 23, § 1099, Vermont's law against texting while driving). These infractions were sufficient to support the initial stop of the vehicle. It is immaterial whether Sergeant Albright had additional subjective motivations for making the stop. See Wren, 517 U.S. at 813 (finding that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis"). Therefore, the initial stop of the vehicle was not an unreasonable seizure in violation of the Fourth Amendment and the evidence derived therefrom is not excluded on these grounds.

B. Detention in Police Cruiser

Savard's subsequent detention was also reasonable. A brief stop may be extended for investigatory purposes if the officer has "reasonable suspicion supported by articulable facts that criminal activity may be afoot." United States v. Swindle, 407 F.3d 562, 566 (2d. Cir. 2005) (quoting United States v. Sokolow, 409 U.S. 1, 7 (1989) (internal quotations omitted)). This reasonable suspicion must be supported by objective, articulable evidence. Terry v. Ohio, 392 U.S. 1, 27 (1968). By the time Albright detained Savard and invited him back to the police cruiser for questioning, he had viewed illegal substances in the ...

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