United States District Court, D. Vermont
UNITED STATES OF AMERICA, Plaintiff.
ROBERTO PABON, Defendant.
ORDER ON MOTION TO SUPPRESS
GARVAN MURTHA, District Judge.
Defendant Roberto Pabon is charged with possession of heroin with the intent to distribute. 21 U.S.C. §§ 841(a), 841(b)(1)(C). He moves under the Fourth and Fifth Amendments to the United States Constitution to suppress physical evidence and statements obtained by the Government as the result of his seizure and arrest on March 21, 2014. (Doc. 19.) The Government opposes this motion. (Doc. 22.) The Court held an evidentiary hearing on January 6, 2015 and heard testimony from Brandon Oxley, Dr. James Rademacher, Sergeant Eric Albright, and Trooper Lewis Hatch. (Doc. 25.) Following the hearing, Pabon and the Government filed supplemental briefs. (Docs. 32, 35, 36, 38.) For the reasons stated below, the Court DENIES the Motion to Suppress.
Around 1:00 a.m. on March 21, 2014, Trooper Richardson of the Vermont State Police ("VSP") pulled over a rental car driven by Jaiden Paige in which Pabon was a passenger. The police ostensibly stopped Paige for breaching a stop line at a traffic light, but the stop was also part of an ongoing drug investigation. Less than a week earlier police had pulled over a different car containing Pabon, Paige and $8, 500 in cash, whom police identified as involved in drug trafficking. Thus, on March 21, the VSP were operating on information indicating Paige was a known drug dealer who brings "people and sometimes females" who body-pack narcotics from Connecticut to the Rutland, Vermont area. (Def. Ex. A, ¶ 7.)
At the March 21 stop, the VSP held the car for approximately 44 minutes before conducting a canine sniff search, which alerted on the passenger door. During this time the VSP questioned Paige and Pabon, and searched Paige's person and Paige's vehicle with his consent. Trooper Richardson also contacted Trooper Lewis Hatch who was familiar with the investigation of Paige. VSP detained Pabon and Paige, but did not read them Miranda rights.
At the Rutland barracks, police attempted to make Pabon sit on a chair so a drug sniffing dog, K9 Gunny, could sniff the seat for traces of drugs. Pabon refused. The VSP also took Pabon to the restroom, but he did not use it. Trooper Hatch obtained a search warrant from Judge William Cohen of the Rutland Superior Court authorizing an x-ray of Pabon's abdomen. Later that morning, at 7:45 a.m., police transported Pabon to Rutland Regional Medical Center ("RRMC") for an x-ray. Pabon asked for a lawyer and an officer told Pabon an attorney had called on his behalf, but that he was not allowed to speak to an attorney at that time.
While Pabon was in transit, Trooper Hatch took K9 Gunny to the cell, where he alerted for narcotics. The dog's head snapped upon initial entry, and after entering and exiting Pabon's cell several times, barked, indicating the presence of the odor of narcotics.
At RRMC, radiologic technologist Brandon Oxley took and reviewed x-rays of Pabon's abdomen. He testified he told Trooper Hatch, "I don't know if this is normal or not but I'm going to get it checked right away." (Doc. 26 (Suppression Hr'g Tr.), at 14). Subsequently the attending physician, Dr. Rademacher, found no evidence of a rectal foreign body. (Id. at 27.) Dr. Todd Gregory also reviewed the x-rays and concluded they were "negative" for drugs. (Def. Ex. J.) That afternoon, at approximately 2:45 p.m., the VSP took Pabon back to the barracks.
Unsatisfied with the conclusions of Dr. Rademacher and Dr. Gregory, Troopers Hatch and Perkins reviewed the x-rays themselves and identified knots and bags consistent with body packing. Trooper Perkins asked Sergeant Eric Albright, who has extensive experience in body-packing cases, to review the x-ray, and Sergeant Albright immediately opined the x-ray showed three masses that appeared to be "plastic bags with knots in them and contained within a white mass consistent with narcotics." (Def. Ex. G.)
Based on the reviews of the x-ray by Sergeant Albright, Oxley, and the doctors, Trooper Hatch sought a warrant to perform a CT scan on Pabon from Judge Cohen, but in the absence of additional evidence Judge Cohen declined to issue a warrant. (Suppression H'rg Tr. at 81.) Trooper Hatch then returned to the barracks with the intent of releasing Pabon. (Id.)
During Trooper Hatch's absence, however, further evidence emerged. At the barracks, the VSP denied Pabon the opportunity to call his attorney on the basis he was not under interrogation. Pabon grew upset, banged his head against the cell bars, and passed out. The VSP took him to RRMC for treatment of a possible head injury. Concerned that leaked drugs may have caused Pabon's lethargy, the treating physician, Dr. Hartman, reviewed Pabon's x-rays and determined they were equivocal for narcotics present inside Pabon's abdomen. See Def. Exh. A, ¶¶ 33-34.; Def. Exh. H, at 000083 (Hartman stated he reviewed Pabon's x-rays and found them "equivocal for foreign body in the patient's rectum"). Pabon refused to allow Dr. Hartman to perform a CT scan of his pelvis to determine if any body-packed bags were leaking.
Based on K9 Gunny's alert, Sergeant Albright's interpretation of the x-rays, the doctors' interpretation of the x-rays, and Dr. Hartman's review of the x-rays, Judge Cohen granted a warrant for a CT scan at approximately 9:15 p.m.
Pabon was transferred back to RRMC and a radiologist performed a CT scan, which at 10:22 p.m. Dr. Hartman concluded showed foreign objects consistent with body-packing. Some time after midnight on March 22, Pabon passed packages of narcotics induced by ...