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United States v. Grossman-Crist

United States District Court, D. Vermont

December 22, 2014




Defendant Jake Grossman-Crist is currently under indictment for conspiring to distribute marijuana and money laundering. The indictment results from an Illinois police stop and search of a trailer destined for Stowe, Vermont that contained 252 pounds of cannabis. The cannabis was seized by the Drug Enforcement Agency ("DEA") in Vermont. Grossman-Crist did not own the trailer or the truck pulling it, nor was he present at the scenes of the stop, search, and seizure. At all times relevant, he was waiting in Vermont for the shipment to arrive. He claims ownership of the cannabis, which was hidden in a compartment beneath a false floor of the trailer.

Grossman-Crist moves the court to suppress the items seized from the trailer's hidden compartment, claiming the seizure violated his Fourth Amendment rights. Grossman-Crist also moves for discovery of all Illinois State Police records concerning the training and performance of the drug-sniffing police dog, K9 Roman, who alerted to the presence of marijuana in the trailer; all records concerning the training and performance of the Illinois State Police trooper who stopped and searched the trailer with regard to working with dogs; and records of Illinois State Police communications concerning the driver's travels during the 72 hours preceding the stop. Grossman-Crist claims that K9 Roman's behavior did not give the Illinois police officers probable cause to search the trailer. The court DENIES Grossman-Crist's motions because it concludes that he had no reasonable expectation of privacy concerning the trailer where the cannabis was secreted.

I. Facts

The following facts are obtained from the Illinois State Police Report of the traffic stop, search, and seizure; the superseding indictment; and the parties' motions. (Docs. 43, 55, 74, 74-1.)

On March 24, 2014 Illinois State Police Trooper Veryzer stopped the driver of a Ford truck pulling an enclosed trailer on Interstate 80 for the moving violation of following too closely behind another vehicle. (Doc. 74-1 at 7.) The driver owned the truck and the trailer he was pulling. (Doc. 74 at 3.) A drug-sniffing police dog, K9 Roman, was brought to the scene and alerted to the presence of marijuana in the trailer. Officer Veryzer requested that the driver open the rear of the trailer, and the driver complied. (Doc. 74-1 at 8.) The trailer contained a Porsche. ( Id. ) Officer Veryzer, along with Illinois State Police Sergeant Thulen, searched the trailer and discovered it had a false floor above a hidden compartment, after which the officers handcuffed the driver. ( Id. ) Upon prying up a section of the false floor, Officer Veryzer smelled "the overwhelming odor of cannabis" and saw several vacuum-sealed packages containing cannabis buds. ( Id. ) Officer Veryzer placed the driver under arrest for cannabis trafficking. ( Id. )

The driver informed the officers that he was delivering the trailer and Porsche to Stowe, Vermont in exchange for $25, 000. ( Id. ) An Illinois state trooper brought the truck and trailer to the Geneseo Police Department where both underwent a further search. ( Id. ) Both the initial roadside search and the search at the police station occurred without a warrant. ( Id. )

Following his arrest, the driver cooperated with law enforcement and allowed the DEA in Vermont to monitor his communications with Grossman-Crist, who arranged the marijuana deliveries the driver was planning to make. The Illinois State Police then orchestrated a controlled delivery of the cannabis to its first destination - a Waterbury, Vermont grocery store parking lot on March 25, 2014. ( Id. ; Doc. 74 at 2.) The driver cooperated in this plan. The delivery in Waterbury led to the arrest of Eric Durand and defendant Trevor Burton. (Doc. 74 at 2.) The charges against Durand were subsequently dismissed. (Doc. 42.) Burton has pled guilty and is awaiting sentencing. (Docs. 64, 70.)

On March 26, 2014, Grossman-Crist directed the driver to a new delivery location. ( Id. ) The driver cooperated in making a second controlled cannabis delivery, which led to the arrest of Mark Girardi. ( Id. ) The controlled deliveries resulted in the seizure by the DEA of a loaded assault rifle, a.308 caliber rifle, a loaded semiautomatic shotgun, a handgun, two ballistic vests with ceramic plates, and one six-ounce bottle of chloroform. (Doc. 74-1 at 8.) After the controlled deliveries were completed, the false floor of the trailer was removed, and the DEA seized several vacuum-sealed bags containing around 252 pounds of cannabis as well as five pounds of "concentrated cannabis." ( Id. at 9.) Grossman-Crist was charged with conspiring to distribute marijuana and conducting financial transactions affecting interstate commerce involving proceeds from an unlawful activity (money laundering). (Doc. 43.)

Grossman-Crist moves to suppress the cannabis seized from beneath the floor of the trailer. He claims ownership of the cannabis that was secreted in the trailer's hidden compartment. (Doc. 55 at 4.) He alleges that he placed the cannabis in the trailer himself, that he entrusted the cannabis to the driver for transport to Vermont, and that he expected the cannabis to remain undisturbed until its scheduled delivery in Vermont. ( Id. ) The Government does not dispute these allegations.

II. Reasonable Expectation of Privacy Standard

The Fourth Amendment requires that evidence obtained through an unreasonable search or seizure be suppressed. Maryland v. Macon, 472 U.S. 463, 467-68 (1985). The Supreme Court in Rakas v. Illinois, 439 U.S. 128, 140 (1978), reformulated the inquiry into whether a defendant has "standing" to challenge a search or seizure on Fourth Amendment grounds into a substantive inquiry into "whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it." A defendant may challenge a warrantless search or seizure if the government physically intruded upon a constitutionally protected area of the defendant's, see United States v. Jones, 132 S.Ct. 945, 950 (2012), or if the defendant enjoyed a reasonable expectation of privacy in the area searched. Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring); Jones, 132 S.Ct. at 950 (noting that later cases adopted Justice Harlan's analysis).

Whether the defendant had a reasonable expectation of privacy in the area searched without a warrant depends upon two distinct factors. First, the challenger of the search or seizure "must demonstrate a subjective desire to keep his... effects private; and, second, the individual's subjective expectation must be one that society accepts as reasonable." United States v. Paulino, 850 F.2d 93, 97 (2d Cir.1988). The defendant bears the burden of showing that he had a reasonable expectation of privacy in the place searched. United States v. Sparks, 287 F.Appx. 918, 919 (2d Cir.2008). If the defendant meets this burden, then "the government has the burden of showing that the search was valid because it fell within one of the exceptions to the warrant requirement." United States v. Perea, 986 F.2d 633, 639 (2d Cir.1993).

A reasonable expectation of privacy has "a source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Rakas, 439 U.S. at 142 n.12. Society recognizes a lower expectation of privacy in an automobile than in a residence. United States v. Smith, 621 F.2d 483, 488 (2d Cir.1980). In determining whether society would find the defendant's expectation of privacy a reasonable one, "courts generally consider whether the defendant had any property or possessory interest in the place searched or the items seized." United States v. Mikelic, No. 3:10-cr-132 CFD, 2011 WL 1837844, at *4 (D. Conn. May 11, 2011). However, ownership of the item seized is not sufficient by itself to create a reasonable expectation of privacy. United States v. Salvucci, 448 U.S. 83, 91-92 (1980). "An illegal search only violates the rights of those who have a legitimate expectation of privacy in the invaded place.'" Id. (quoting Rakas, 439 U.S. ...

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