United States District Court, D. Vermont
JOINT RULING ON MOTIONS TO SUPPRESS
(Docs. 44, 45, 67)
J. GARVAN MURTHA, District Judge.
Defendants Kenneth Trapp and Danielle Goding are charged with conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 841(a)(1), 846. (Doc. 19.) Trapp moves to suppress evidence obtained as a result of a vehicle stop in Fair Haven, Vermont on April 23, 2013, arguing his Fourth Amendment constitutional rights were violated. (Doc. 44.) Goding moves to suppress evidence and all statements obtained as a result of a vehicle stop on I-87 in New York State. (Docs. 45, 67.) The government opposes both motions. (Docs. 48, 49, 68.) The Court held an evidentiary hearing on December 16, 2013, and heard testimony from New York State Police Investigator Warren J. Law and Trooper Jason Miller, Vermont State Police Trooper Andrew Todd, and Federal Bureau of Investigation ("FBI") Special Agent Christopher Destito. Trapp, Goding, and the government filed additional briefing following the hearing. (Docs. 57, 61, 62, 67, 68.) For the reasons below, the Court denies Trapp's and Goding's motions.
The following facts are taken from the evidence presented at the December 16 hearing and other documents submitted as evidence by the parties. The Court also viewed the video of Vermont State Police Trooper Todd's traffic stop recorded by his dashboard camera. Gov't Ex. 6. On April 23, 2013, at approximately 2 p.m., FBI Special Agent Destito called New York State Police Investigator Law. Suppression Hr'g Tr. at 9, 11, Dec. 26, 2013 ("Hr'g Tr."). Destito told Law he had been conducting an investigation and advised that a taxi carrying a male suspected of drug dealing would be approaching the outlet stores off Exit 20 in Lake George, New York, to meet with another person. Id. at 9-10. Law drove to the outlet stores and contacted New York State Trooper Miller, asking him to look out for a taxi coming from Vermont. Id. at 11, 105. Miller, who then was attending to a car accident on Route 149 in New York, called Law back and said such a taxi had just passed him. Id. at 11. A few minutes later, Law saw the taxi pull into the outlet stores' parking lot and watched a man get out. Id. at 11-12. Law recognized the man as "Kenny Trapp" because about one month earlier, Law and Miller had "dealt" with Trapp during a traffic stop of a taxi in which Trapp was a passenger. Id. at 12. In that stop, the officers found Trapp in possession of a small amount of marijuana and $1, 499 in cash. Id.
Law watched Trapp exit the taxi carrying "a small little bag... almost like a shopping bag." Hr'g Tr. at 13. He observed Trapp go in and out of various outlet stores. Id . Law then saw a "black livery with New York City style plates" pull into the parking lot near the Polo outlet store. Id. at 14. The town car's front license plate was hanging down. Id. at 15. Law watched a black woman with blond hair and a bright blue hat exit the town car. Id . The woman, later identified as Danielle Goding, walked into the Polo outlet. Id. at 16, 25. Trapp also went into the Polo outlet, although Law does not remember who entered first. Id. at 16. Trapp and Goding then separately exited the store a few minutes later. Id. at 17. Law observed Trapp with what appeared to be a Timberland shopping bag, which he had carried into the Polo outlet, but no longer noticed the "black bag." Id .; see id. at 32-33. Goding also had bags in her hand as she exited the store. Id. at 17.
At this point, a "Tri County" taxi pulled into the parking lot. Hr'g Tr. at 17-18. Trapp put his bags in the trunk and got into the cab. Id. at 18. Law called Destito, who asked him to follow Trapp's taxi. Id. at 19, 56. Law followed it onto Route 9, Route 149, and then Route 4 into Vermont. Id. at 18-19. Destito had also given Law Vermont State Trooper Andrew Todd's cell phone number. Id. at 19. Destito had called Todd shortly before 5 p.m. on April 23, 2013, and told him he was working on an "ongoing drug investigation" and "wanted to coordinate" Todd with a New York State Trooper "in terms of a vehicle that was coming en route to Vermont" after "something that took place in Lake George, New York." Id. at 64, 65 (quoting Todd's testimony).
Law called Todd and advised him of his location. Hr'g Tr. at 19. According to Todd, the "gist" of what Law told him was that a drug transaction had taken place near the outlets and the person involved was in a taxi en route to Vermont. Id. at 90. Todd was sitting in his car just east of the New York state line on Route 4 in Vermont when the taxi drove by. Id. at 65-66. When Law saw Todd's cruiser enter the highway, he made a U-turn and headed back to New York. Id. at 20. Todd observed the taxi make "several violations" - speeding, illegal lane change, failure to use directional signals, and tailgating - before pulling it over. Id. at 66. He told the taxi driver about the moving violations and his "general" concerns about the connection between interstate taxi travel and drug trafficking. Id. at 67. The driver then consented to a search of the taxi "as well as his property and person." Id.
Next, Todd told the passenger in the taxi, Kenneth Trapp, about the impending vehicle search (based on the driver's consent) and asked him to exit the taxi. Hr'g Tr. at 67. Trapp complied. Id . Todd informed Trapp that a K-9 unit, which had arrived moments after Todd pulled the taxi over, would also conduct a search. Id. at 69, 93. Todd asked Trapp for consent to search his shopping bags in the trunk, but Trapp refused. Id. at 69, 71. Todd did an initial search of the taxi - not including Trapp's bags - and then the K-9 unit followed. Id. at 70. The drug dog, Maximus, id. at 93, hopped inside the taxi to sniff around at the handler's instruction. See id. at 71 ("I know [the handler] made the dog, that he searched the inside of the vehicle, I'm not sure if exactly he did the search of the outside of the car." (quoting Trooper Todd)). Todd did not find any contraband but Maximus "alerted to the presence of narcotics both where Mr. Trapp [had been] sitting and where his property was in the trunk." Id. at 71-72. Based on Maximus' alert, Todd detained Trapp, seized his shopping bags, then applied for and received a warrant to search Trapp's belongings. Id. at 72-73; Gov't Ex. 4. Todd later uncovered 1, 200 bags of heroin in Trapp's bags. Hr'g. Tr. at 73.
Meanwhile, Trooper Miller had arrived to assist Law in his surveillance at the outlets. Hr'g Tr. at 105. After observing Danielle Goding get back into the black town car outside the Polo outlet, Miller followed the car onto Route 9 and then southbound on I-87. Id. at 105-106. Law, who was then following the taxi carrying Trapp into Vermont, had "advised [Miller] to make a car stop... if he could" on the black town car carrying Goding. Id. at 20. Both Law and Miller had observed, back at the outlets, that the black town car's front license plate was secured by one screw and was hanging down at an angle. Id. at 15, 118, 119. Law had also informed Miller, to some extent, of his previous surveillance of Goding and Trapp at the Polo outlet and suspicions of drug activity. Id. at 20, 105-06.
Miller then pulled over the black town car based on its unsecured license plate. Hr'g Tr. at 107. During his conversation with the driver, Miller smelled burnt marijuana in the vehicle and asked both the driver and the female passenger, Goding, to exit the car. Id. at 108. Based on the marijuana odor, Miller believed he had probable cause to search the car and its contents. Id. at 109. Inside a plastic bag in the backseat, Miller found a watch box containing approximately $14, 000 in cash. Id. at 110, 128. Goding told Miller the money was hers, she worked as a baker, and that she had come up to the outlets to shop. Id. at 111. He did not believe this story because she had a Polo outlet job application with her and also wore "very long press-on" nails that "looked like they just recently had been painted." Id . Miller did not find any evidence of marijuana after searching the town car. Id. at 120.
After finding the money, Miller contacted Law and told him about the marijuana odor and cash. Hr'g Tr. at 21. The police then transported both the driver and Goding back to the Queensbury, New York, barracks. Id. at 21, 112, 121. Because the marijuana odor was still present at the barracks, Miller requested that a female officer search Goding. Id. at 112. The officer found marijuana on Goding's person. Id. at 112, 124. Miller issued Goding an appearance ticket for unlawful marijuana possession, which she later pled guilty to in New York state court and paid a fine. Id. at 112, 23-24. Miller also received a "supporting deposition" from the driver of the town car. Id. at 113; Gov't Ex. 2. In it, the driver admitted he knew the license plate had been hanging by one screw. Gov't Ex. 2. According to the driver, Goding paid him $500 in cash to drive to the Lake George outlets that morning. Id . The driver stated Goding had paid him to drive to the outlets three or four other times in the past. Id.
Goding was then detained in a locked interview room at the request of Agent Destito, who was en route to the barracks with Drug Enforcement Agency ("DEA") Special Agent Thomas Doud. Hr'g Tr. at 24-25, 35-36. Before they arrived, Law asked Goding some preliminary questions and did not believe her answers. Id. at 37-38. Goding thought Law was kidding when he told her there was a federal investigation. Id. at 38. According to Law, Goding "basically said that I don't believe you and I'm not - I don't want to talk to you anymore.'" Id . Law told Destito and Doud about the topic of his interview with Goding when they arrived approximately two and a half hours later. Id. at 38-39. It was Law's own decision not to advise Goding of her Miranda rights during his interview with her. Id. at 130. He chose not to do so because he was not "asking about the marijuana which she was under arrest for[;] [he] was just asking about the money she had in her possession." Id. at 57.
Destito and Doud arrived at the barracks around 9 p.m. and were given Goding's personal belongings, including her cell phone. Hr'g Tr. at 133. According to Destito, Law told him Goding had given inconsistent or not credible answers regarding the origin of the money, but Law did not specifically tell him that Goding had said she did not want to speak to Law further. Id. at 138-139, 142. Doud verbally advised Goding of her Miranda rights and she agreed to speak with them. Id. at 134, 140. Destito believed he had probable cause to arrest Goding. Id. at 135. The agents tried to look at her phone, but it was password-protected and Goding declined to give them her password. Id. at 134-135. After the interview, in which Goding said she would not admit she was involved in transporting drugs because she was afraid of being killed, Goding and Trapp, who also incriminated himself in an interview before stating he did not want to speak further, were both transported to Vermont for their appearance in federal court the next day in Burlington. Id. at 139; see Doc. 1-1 at 5, 7 (affidavit of Agent Doud). Destito gave Goding's phone to another agent in the Burlington FBI office and, two weeks later, that agent circumvented the password and downloaded the contents of the phone. Id. at 135-136.
The initial burden of production and persuasion generally rests upon the defendant at a suppression hearing. United States v. Arboleda , 633 F.2d 985, 989 (2d Cir. 1980). "The defendant must present a prima facie case showing a Fourth Amendment violation, i.e., that a government official, acting without a warrant, subjected her to either an arrest or a search and seizure." United States v. Bayless , 921 F.Supp. 211, 213 (S.D.N.Y. 1996) (citing cases), aff'd, 201 F.3d 116 (2d Cir. 2000). "[O]nce [the defendant] establishes a basis for his motion, the burden rests upon the [g]overnment to prove, by a preponderance of the evidence, the legality of the actions of its officers." United States v. Wyche , 307 F.Supp.2d 453, 457 (E.D.N.Y. 2004). "Thus, [w]hen [the government] has acted without a warrant, the ultimate burden of persuasion is then upon the government to show that its evidence is not tainted.'" Bayless , 921 F.Supp. at 213 (quoting United States v. Bonilla Romero , 836 F.2d 39, 45 (1st Cir. 1987).
The Fourth Amendment protects the "right of the people to be secure in their persons... against unreasonable searches and seizures." U.S. Const. amend. IV. This protection extends to vehicle stops. Whren v. United States , 517 U.S. 806, 809-10 (1996). Probable cause or reasonable suspicion of a traffic violation, even a minor one, provides a sufficient basis under the Fourth Amendment for a law enforcement officer to make a traffic stop. United States v. Stewart , 551 F.3d 187, 191 (2d Cir. 2009). A law enforcement officer may also "briefly detain a person if the officer has a reasonable suspicion that criminal activity may be afoot.'" United States v. Bayless , 201 F.3d 116, 132 (2d Cir. 2000) (quoting Terry v. Ohio , 392 U.S. 1, 30 (1968)). Reasonable suspicion should be based on specific and articulable facts objectively indicating unlawful conduct. Id. at 132-33 (internal citations omitted). The Court considers the totality of the circumstances and evaluates those circumstances "through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training." Id. at 133 (internal citations omitted).
Under the automobile exception to the Fourth Amendment warrant requirement, police may also conduct a warrantless search of a vehicle if probable cause exists to believe it contains contraband or other evidence of a crime. United States v. Gaskin , 364 F.3d 438, 456 (2d Cir. 2004) (internal citations omitted). This may include containers within the vehicle. California v. Acevedo , 500 U.S. 565, 580 (1991). Probable cause exists if the facts and circumstances are sufficient to lead a person of reasonable caution to believe evidence of a crime will be found in the place searched. Gaskin , 364 F.3d at 456-57 (internal citation omitted). "[C]ourts recognize that experience and training may allow a law enforcement officer to discern probable cause from facts and circumstances where a layman might not." Id. at 457 (internal citation omitted). Certainty is not required; the police only need a fair probability that contraband or evidence of a crime will be found. Id . (citing Illinois v. Gates , 462 U.S. 213, 238 (1983)).
If a traffic stop is lawful, "passengers and drivers have no Fourth Amendment interest in not being ordered out of the stopped vehicle." Mollica v. Volker , 229 F.3d 366, 369 (2d Cir. 2000). Thus, the police may order both passengers and driver out of a lawfully stopped car as a "matter of course." Maryland v. Wilson , 519 U.S. 408, 410 (1997). This includes a taxicab. See United States v. Gaines , 457 F.3d 238, 243 (2d Cir. 2006) ("[I]f the stop was reasonable, [the officer] was authorized to order [the passenger in the back seat] to get out of the cab." (citing Wilson , 519 U.S. at 415)). Non-owner passengers in a vehicle generally do not have a reasonable expectation of privacy in the vehicle. Rakas v. Illinois , 439 U.S. 128, 148-49 (1978); see United States v. Paulino , 850 F.2d 93, 97 (2d Cir. 1988). Accordingly, a passenger does not have a reasonable expectation of privacy in a cab's trunk, but may hold one as to personal property - bags, for example - within that trunk. United States v. Perea , 986 F.2d 633, 639, 642 (2d Cir. 1993); see Bond v. United States , 529 U.S. 334, 338-39 (2000) (holding that bus passenger has reasonable expectation of privacy in luggage).
During a traffic stop, the police may ordinarily use "a well-trained narcotics-detection dog" outside a lawfully stopped car without implicating "legitimate privacy interests." Illinois v. Caballes , 543 U.S. 405, 409 (2005). In other words, an exterior sniff is not a search, see id., and the police need not first obtain consent or establish probable cause. An interior sniff is different. Although the Second Circuit appears not to have directly addressed it, other circuits have found a drug dog's entrance into a car's interior implicates the Fourth Amendment unless he instinctively jumps inside without prompting from his handler. See United States v. Pierce , 622 F.3d 209, 212-14 (3d Cir. 2010) (citing cases); United States v. Sharp , 689 F.3d 616, 620 (6th Cir. 2012) (same). Of course, like any search, a driver may consent to an interior sniff. Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973) (noting that consent is a well-established exception to the "requirements of both a warrant and probable cause"); see United States v. Chin, 5:13-cr-28, 2013 WL 5406239, at *3 (D. Vt. Sept. 26, 2013) (driver consents to drug dog's sniff inside vehicle). And, as long as the dog is reliable, his alert establishes probable cause to search. Florida v. Harris , 133 S.Ct. 1050, 1057 (2013).
A. Trapp's Motion to ...