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United States v. Herman

United States District Court, D. Vermont

December 14, 2015

UNITED STATES OF AMERICA
v.
GREGORY E. HERMAN, and FRANCIS M. PUTNEY

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE AND STATEMENTS (DOC. 29)

Christina Reiss, Chief Judge United States District Court

This matter came before the court on November 18, 2015 for an evidentiary hearing on Defendant Gregory E. Herman's Motion to Suppress Physical Evidence and Statements (Doc. 29). Defendant argues that the traffic stop of the vehicle in which he was traveling was unreasonably prolonged beyond the time necessary to issue a warning or ticket for speeding. For this reason, he contends that his and the operator's consent to search the vehicle were tainted by that illegality and cannot provide the basis for a warrantless search of the vehicle's contents and the admission of his Co-Defendant Francis M. Putney's statements.

The government counters that the traffic stop was itself lawful and was not unreasonably prolonged. It argues that during the traffic stop, law enforcement developed a reasonable suspicion that the vehicle's occupants were engaged in criminal activity either through information known to the law enforcement officer who stopped the vehicle or through the collective knowledge doctrine.

In a one count Indictment, Defendant is charged with knowingly and intentionally possessing heroin with intent to distribute on April 15, 2015, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C), 18 U.S.C. § 2. (Doc. 11.)

The government is represented by Assistant United States Attorneys Christina E. Nolan and Heather E. Ross. Defendant is represented by Assistant Federal Public Defender David L. McColgin.

I. Findings of Fact.

On April 15, 2015, the Vermont Drug Task Force ("VDTF") received information from a confidential informant ("CI") that an individual engaged in selling narcotics in the St. Johnsbury, Vermont area would be arriving at a White River Junction, Vermont bus station on a bus from New York.[1] The CI had previously participated in controlled buys for the VDTF and had provided accurate information regarding the target of an investigation. The CI described the suspected drug courier as a tall, slender black male who walked with a distinct limp and whose alias was "Murder." At the time, the VDTF was focusing its investigative resources on public mass transportation in Vermont after having seized approximately 14, 000 to 15, 000 bags of heroin; 200 grams of cocaine base; 200 grams of cocaine powder; and an undetermined number of prescription pills from individuals arriving by bus or train to destinations in Vermont.

As a result of the CI's tip, the VDTF conducted surveillance of the bus station on the date and time of the suspected drug courier's anticipated arrival. Vermont State Police ("VSP") Detective Sergeant Karl Gardner oversaw the surveillance team which was comprised of VDTF members who were undercover and dressed in plain clothes and uniformed police officers in the area who could pursue a suspect in a marked police cruiser. The surveillance team surrounded the bus station and prepared to videotape the arrival of passengers from the bus from New York.

At approximately 1:00 p.m., a Greyhound bus arrived from New York and a tall, slender black male with a discernible limp, later identified as Defendant, disembarked carrying a small bag.[2] Defendant went into a gasoline station and then proceeded to a black Toyota pickup truck where he got into the front passenger seat while a white male got into the operator's seat.

By checking the license plate number, the VDTF determined that the black Toyota pickup truck was registered to Robert Putney. This name had immediate significance to Detective Sergeant Gardner for several reasons. He was aware that VSP was investigating whether Robert and Francis Putney were heroin users who sold heroin out of the "Putney Garage"-a mechanic's garage which they owned with their father and which was located next to their residence in Graniteville, Vermont. Detective Sergeant Gardner was also aware that in the winter of 2015, VSP had conducted a "saturation patrol, " stopping individuals going to and from the Putney Garage for investigative purposes. In furtherance of this effort, VSP had developed a "spider web" depicting the Putney Garage and Robert and Francis Putney as the "targets" in the center of the web, and indicating the vehicles and individuals associated with them.

In addition to VSP's investigation of the Putney s, a December 3, 2014 email from VSP Detective Sergeant Daniel Trudeau to Detective Sergeant Gardner provided the following information:

From: "Trudeau, Daniel"
Date: December 3, 2014 at 11:25:27 AM EST
To: "Cochran, Wade" "Gardner, Karl" Subject: Putney Garage in Granit[e]ville
(Wade [Cochran], I just spoke to Karl [Gardner] about this a few minutes ago, but here is some dope tip)
Earlier this morning dispatch patched me through to a DMV Inspector ([name and phone number provided]). He said that they had received a tip from some guy [name and address provided] that there was drug activity at the Putney Garage on Cogswell Road in Graniteville. The tip was specifically in reference to heroin, though I wasn't exactly clear if the guys in the garage were just users or users/sellers. They are brothers I believe ... Francis and Robert Putney. DMV just wanted to pass along the info to us in case we were actively looking at them or wanted to. The garage is a State Inspection location. They advised there is obviously not much they can do other than randomly go in and observe that these guys can do State Inspections the appropriate way. I told them I would pass it along ...

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