United States District Court, D. Vermont
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE (Doc. 23)
CHRISTINA REISS, Chief District Judge.
This matter came before the court on August 20, 2014 for an evidentiary hearing on Defendant Terrence Davis's motion to suppress evidence (Doc. 23). Burlington Police Department Detective Daniel Merchand and Sergeant Brian LaBarge (formerly Detective LaBarge) testified on behalf of the government. The parties completed their post-hearing evidentiary submissions on September 2, 2014, and their post-hearing briefing on September 12, 2014, at which point the court took the matter under advisement.
Defendant is charged in a one-count indictment with knowingly and intentionally possessing with the intent to distribute heroin, a schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). Defendant seeks suppression of all evidence seized during the execution of a search warrant for a hotel room at the University Inn in South Burlington, Vermont on February 23, 2012. Defendant asserts that Detective Merchand's affidavit in support of the search warrant (the "Affidavit") contained material factual misstatements and omissions which, if corrected, obviate a finding of probable cause. In addition, he contends that Detective Merchand acted either intentionally or recklessly in making the alleged misstatements and omissions in the Affidavit. The government opposes the motion.
The government is represented by Assistant United States Attorney Michael P. Drescher. Defendant is represented by Maryanne E. Kampmann, Esq.
I. Findings of Fact.
In 2012, Detective Merchand was a member of the Burlington Police Department and assigned to its drug unit. He has been a member of law enforcement since 1999 and has participated in over one hundred controlled buys.
On February 23, 2012, Detective Merchand organized, supervised, and participated in an attempted controlled buy through a confidential informant (the "CI"). The CI had never previously completed a controlled buy for law enforcement, but he had spoken to Detective Merchand once previously in 2011 by telephone. During the 2011 telephone call to Detective Merchand, the CI provided information to law enforcement but declined to participate in a controlled buy. At the time, the CI was either just getting out of or going into a substance abuse rehabilitation program. There is no evidence that the information the CI provided in 2011 proved useful or was corroborated.
On February 16, 2012, the CI came with his girlfriend to the Burlington Police Department and expressed fear that his life was in danger because he owed a drug debt to a group of heroin dealers known to law enforcement as "the Chicago group." The CI offered to assist law enforcement in exchange for consideration on his pending charges. The eleven pending charges against the CI included two charges for false information to a police officer.
Detective Merchand interviewed the CI, who provided information about a group of individuals who were selling drugs out of the University Inn in South Burlington, Vermont. The CI mentioned that a member of this group, "Philly, " was also staying at the Anchorage Inn in South Burlington. The CI told Detective Merchand that "Philly" was part of this group prior to his arrest in Connecticut. Detective Merchand knew that "Philly" was incarcerated at the time.
The CI also provided information about someone named "Tim" who drove a silver Honda with out-of-state plates. The CI provided Detective Merchand with the cell phone number for Tim. Detective Merchand did not attempt to contact "Tim" and concluded that a state subpoena for the cell phone records associated with Tim's cell phone number would take too long.
Although the CI was the sole source of law enforcement's information that, in February 2012, individuals were dealing drugs from the University Inn, Detective Merchand had previously received a tip from a staff member of the Anchorage Inn that certain individuals who had stayed there were "suspicious." The staff member provided Detective Merchand with identifications cards for two African-American males. Neither of these identification cards pertained to Defendant.
Law enforcement did not conduct surveillance at the University Inn between February 16, 2012 and Detective Merchard's next meeting with the CI. On the evening of February 22, the CI met with Detective Merchand and advised him that earlier that day he had purchased heroin from a person or persons staying at the University Inn. The CI claimed to have purchased the heroin on another person's behalf, but he did not identify this person or explain why he was purchasing heroin while cooperating with law enforcement. Detective Merchand testified that he did not know whether the information provided by the CI regarding this purchase was true. He nonetheless included it in the Affidavit. He arranged for the CI to participate in a controlled buy at the University Inn the following day.
On the day of the controlled buy, law enforcement searched the CI's person and clothing for drugs, contraband, and currency and found none. Law enforcement then provided the CI with $350 of pre-recorded funds in order to complete a purchase of heroin. While the CI was not compensated for the controlled buy, he was provided with $100 to pay off a drug debt he allegedly owed to the same individuals.
Detective Shawn Burke transported the CI to the University Inn, arriving at approximately 2:15 p.m. During the transport, the CI called a cell phone number to arrange a purchase. There is no evidence that Detective Merchand heard this communication or that it was recorded. The CI asked Detective Burke how many officers would be in the area during the controlled buy. Detective Merchand, who heard this exchange, did not find it unusual because "informants will ask questions about how things are going to take place because they're concerned about their safety and about being compromised as an informant." Doc. 29 at 18:8-11. The CI was dropped off in the University Inn parking lot.
Four officers surveilled the CI from various vantage points. Detective Merchand was located in his vehicle parked across the street from the University Inn, and he was "multi-tasking" as he conducted surveillance by "operating the radio, operating [his] telephone, taking notes about what was transpiring, " and "also videotaping." Id. at 11:20-22, 13:13-19. He turned off the video when necessary to make and take telephone calls so that "[t]here wasn't any rhyme or reason for the video, " id. at 13:16-17, and he attempted to direct the video camera towards both the CI and the suspects. Detective Merchand was the only officer who conducted video and audio surveillance. During the controlled buy, he had telephone contact with both Detective LaBarge and the CI. Because Detective Merchand was using a single cell phone, he could only talk to one person at a time, although he was able to put Detective LaBarge on speaker phone when he needed to do other things. The video recording introduced at the court's evidentiary hearing depicts only portions of the controlled buy and the CI is not always visible in it.
The CI wore a device on his person which recorded his verbal interactions and which transmitted those interactions to Detective Merchand. Detective Merchand testified that the device did not transmit every interaction due to "interference" and "feedback" and if the device was out of "range." Id. at 60:1-6, 16-25. Accordingly, Detective Merchand could not "always hear" what was being said by or to the CI. Id. at 60:16-21. Detective Merchand was the only officer at the scene who could listen to the transmission from the CI's recording device. The audio recording introduced at the court's evidentiary hearing captures only some of the CI's statements, virtually none of the target's statements during the controlled buy, and is inaudible or unintelligible in several parts.
Detective Burke was parked in the parking lot of the University Inn and was tasked with conducting surveillance from that location. Detective Chris Young initially obtained a room on the first floor of the University Inn, but he did not have eyes on the lobby. He later secured a room on the second floor, across from Room 207. Detective LaBarge, while dressed in plain clothes, followed the CI on foot from a distance.
A. The Surveillance Video.
From his vehicle, Detective Merchand videotaped some of the CI's movements. The video depicts the CI approaching the University Inn on foot, as a member of the surveillance team observes that the CI is "just hanging out by the trash cans." Doc. 30-1 at 2:4. The CI then walks behind a lattice next to the entrance to the University Inn. Detective Merchand remarks the CI "is entering the lobby way of the hotel." Id. at 2:8-9. Detective Merchand's investigative notes similarly reported that the CI was observed "entering the area of the south entrance." Def.'s Ex. E at 1. The video recording does not depict the CI entering any part of the University Inn and, in his testimony, Detective Merchand conceded that the CI never entered the building. Detective Merchand also conceded that during the time the CI stood behind the lattice, he was not clearly visible, although part of his body could be seen.
While standing behind the lattice, the CI states, "I am on foot now. My girl dropped me off so I am like, I didn't want her to see what was going on so I had her drop me off... so I am just like, waiting out here." Doc. 30-1 at 2:11-12. After hearing this statement from the CI, Detective Merchand states that it "[s]ounds like he is on the phone with the guy now." Id. at 2:14. The video then depicts the CI emerging from behind the lattice, holding a cell phone to his ear. Detective Merchand reports that the CI is "back out in front." Id. at 2:17.
Thereafter, the CI walks towards the University Mall, which was not a planned part of the controlled buy and was done without authorization. The video depicts three African American males walking from the direction of the mall. While two of the males walk away from the CL one male approaches the CI, and they appear to speak briefly.
The male is wearing jeans, a black hooded sweatshirt, and a black hat with a brim. The conversation between the CI and this male was not transmitted to Detective Merchand and is not contained on the audio recording. After the controlled buy, the CI told Detective Merchand that the male instructed him to wait inside the mall and told him that they would call him later.
Despite repeated orders directing the CI to remain outside of the mall, the CI entered the University Mall. This is also not depicted on the video. Detective LaBarge was behind the CI on foot at the time and testified that he followed the CI inside. For approximately ten to fifteen seconds, Detective LaBarge lost visual surveillance of the CI. When he found the CI near the Bon Ton store, Detective LaBarge directed the CI to call Detective Merchand, who spoke with the CI and told "him again [he wanted] him outside where [the officers could] keep eyes on him." Doc. 29 at 28:24-29:L
Meanwhile, the three African American males were observed walking towards the University Inn and entering it. The Affidavit recites that Detective Young saw the three males enter Room 207, located on the second floor. These events are not depicted on the video and are not recorded on the audio. It is unclear whether Detective Young and Detective Merchand were in radio contact at the time.
As the CI left the mall and walked back towards the University Inn, the video depicts him making what appears to be a series of cell phone calls en route. The content of these cell phone calls was not recorded. The officers note that the CI continues to look around and appears "paranoid and worried about the presence of police around him." Id. at 29:20-24. In his testimony, Detective Merchand acknowledged that the CI was more paranoid than "the usual CI." Id. at 30:16-17. The audio records the following exchange:
DETECTIVE MERCHAND: Alright. You still have eyes on him? He's coming back to the hotel. Says he's gonna do the deal with these guys here in the lobby.
DETECTIVE LABARGE: Well, I can see him walking. I am all the way over to the Sport Shoe Center and I can see him walking back towards that way but I don't know how far we can push him.
DETECTIVE MERCHAND: Alright. Well, I mean - I am...
DETECTIVE LABARGE: Hold on. Hold on. Let me step out - we should just run up on these bitches right now.
DETECTIVE MERCHAND: [Detective Young] got the room.
DETECTIVE LABARGE: Yeah. No shit. Exactly. We should run up on them right now. Cause they said all three of em out?
DETECTIVE MERCHAND: Yeah.
DETECTIVE LABARGE: He's making his way across ...