United States District Court, D. Vermont
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE AND STATEMENTS (Doc. 14)
CHRISTINA REISS, Chief District Judge.
This matter came before the court on November 23, 2015 and December 7, 2015 for an evidentiary hearing on Defendant Marcus Delille's motion to suppress physical evidence and statements (Doc. 14). On December 11, 2015, the parties completed their post-hearing filings and the court took the motion under advisement.
Defendant is charged by Indictment with: Count One, possessing fifteen or more counterfeit access devices, knowingly and with intent to defraud, in violation of 18 U.S.C. § 1029(a)(3); and Count Two, possessing five or more false identification documents with intent to use, in violation of 18 U.S.C. § 1028(a)(3).
Defendant asserts that: (1) law enforcement unreasonably prolonged a traffic stop of the vehicle he was operating without a reasonable suspicion of criminal activity; (2) the traffic stop turned into a de facto arrest when he was directed to sit in a police cruiser and subjected to interrogation; (3) his subsequent consent to search the vehicle was not voluntary because he was coerced by law enforcement; (4) his statements were taken in violation of the Fifth Amendment; and (5) the government should be precluded from introducing statements, testimony, and reports by law enforcement because an audio recording of the traffic stop was not created. The government opposes the motion, arguing that the traffic stop itself was lawful and Defendant's further detention was reasonable, that Defendant does not have standing to contest the search of the vehicle, and that any failure to record the traffic stop was inadvertent and not grounds for suppression.
The government is represented by Assistant United States Attorney Gregory L. Waples. Defendant is represented by Federal Public Defender Michael L. Desautels.
I. Findings of Fact.
On April 23, 2015 at approximately 1:46 p.m., Trooper Matthew Steeves of the Vermont State Police ("VSP") was observing northbound traffic on Interstate 91 in a marked police cruiser located in a U-turn. He observed a vehicle traveling at a high rate of speed and using radar, determined that the vehicle's speed was ninety-seven miles per hour in an area with a posted speed limit of sixty-five miles per hour. He activated his cruiser lights and began pursuing the vehicle. The vehicle, a silver Dodge Charger with New York license plates, immediately left the passing lane, moved into the travel lane, and stopped partially in the roadway. Using his public address system, Trooper Steeves ordered the operator to move over to the breakdown lane so as not to create a traffic hazard. The operator complied with this order.
Trooper Steeves exited his cruiser and approached the vehicle. In doing so, he noted that the vehicle was a rental vehicle as evidenced by the bar code in its rear window. Trooper Steeves approached the passenger side of the vehicle for safety reasons. Trooper Steeves noticed that all four windows of the vehicle were down and he immediately smelled a strong odor of fresh burnt marijuana.
Defendant, the operator and sole occupant of the vehicle, had his license and the vehicle's registration in his hand when Trooper Steeves approached. He identified himself and presented Trooper Steeves with a Pennsylvania license. Trooper Steeves asked Defendant why he had initially stopped in the roadway. Defendant responded that when he saw Trooper Steeves pull out, he knew that he was going to be stopped. Defendant further advised that he was coming from Brooklyn and traveling to a mall in New Hampshire to buy a shirt. When Trooper Steeves questioned why Defendant would travel such a long distance for a shirt, Defendant replied that he was actually going to see a woman he met on Facebook. Defendant advised that he did not have any luggage in the vehicle because he was just going to take a trip "up and back."
Trooper Steeves saw what appeared to be marijuana flake on the carpet in the passenger foot well and streaks of what appeared to be marijuana flake on the passenger seat. He subsequently photographed the alleged marijuana flake. Trooper Steeves did not see any paraphernalia associated with marijuana in the vehicle, nor did he test the alleged marijuana flake or preserve it for evidentiary purposes. He conceded that he would not have arrested Defendant on the basis of the marijuana he saw in the vehicle. Trooper Steeves asked about marijuana in the vehicle, and Defendant responded that he did not have or use marijuana. Defendant also advised Trooper Steeves that the silver Dodge Charger was not his vehicle, but a rental vehicle that he had borrowed from his friend "Kevin." Trooper Steeves asked Defendant to provide him with a copy of the rental agreement and Defendant did so. The rental agreement stated that other than Kevin Pierre-Louis, there were no additional authorized drivers.
Trooper Steeves told Defendant that he would like to search the vehicle and advised Defendant that he could consent to the search or require Trooper Steeves to apply for a search warrant. When Defendant responded that he needed to talk to Kevin first, Trooper Steeves permitted Defendant to make a cell phone call. While Defendant was speaking on his cell phone, Trooper Steeves radioed for another unit to respond to the scene of the traffic stop.
After speaking with Kevin, Defendant advised that he did not want Trooper Steeves to search the vehicle. Trooper Steeves responded that they would need to tow the vehicle and request a search warrant. At this point, VSP Trooper Daniel Bennett arrived on the scene. As he approached the silver Dodge Charger on the operator's side, Trooper Bennett also detected the odor of burnt marijuana and saw what appeared to be marijuana flake in the foot well of the passenger side of the vehicle. Trooper Bennett recorded this observation on his body microphone.
Trooper Steeves asked if Defendant would exit the vehicle and consent to a search of his person and advised him that he could refuse this request. After obtaining Defendant's consent, Trooper Steeves searched him, and determined that Defendant had two wallets and three cell phones on his person, which did not immediately appear to be of interest. Trooper Steeves then asked Defendant to sit in the front seat of his cruiser while he ran his information. Other than searching Defendant, Trooper Steeves never touched Defendant or made any show of force prior to arresting him.
At Trooper Steeves's direction, Defendant sat in the front seat of the police cruiser without handcuffs or other restraints while Trooper Steeves ran his license and the vehicle's registration. Trooper Steeves advised Defendant that the odor of marijuana and the marijuana flake gave him probable cause to seize the vehicle and he read a consent card to Defendant to advise him of his options. Defendant again asked to call Kevin, which Trooper Steeves permitted. After calling and speaking to Kevin a second time, Defendant consented to a search of the vehicle. At approximately 2:17p.m., Defendant read a written consent card and signed it. The consent card states as follows:
I Trooper Steeves believe that I have probable cause to seize [a] 2015 NY GXM5610 Dodge Charger here under your control. I will be attempting to obtain a search warrant from a judge. You may choose to allow a search now or you may require that I attempt to obtain a search warrant from a judge. The choice is yours.
I freely give my permission to Trooper Steeves to conduct a complete search of the items listed above and their contents. I understand I do not have to allow this. No threats or promises have forced this consent.
Government's Exhibit 4.
While Trooper Steeves searched the Dodge Charger, Defendant was left in the cruiser with Trooper Bennett. Defendant advised Trooper Bennett that he thought he was in New Hampshire and that he planning to visit a woman in that state that he had met on Facebook. Defendant was laughing during a portion of this conversation and was removing items from his pocket. Trooper Bennett also did not touch Defendant or make any show of force. His conversation with Defendant was casual in tone and content and Defendant initiated some of the topics of conversation.
During the search of the Dodge Charger, Trooper Steeves located thirty-five credit cards for "Kenneth Reid" and "Jennifer Alvarez" and five identification cards or operator's licenses purportedly issued by Texas, Pennsylvania, New York, and California. The cards had different names on each of them and each bore Defendant's photograph. Thereafter, Trooper Steeves placed Defendant in handcuffs and advised him that he was doing so because Defendant was not being truthful about his identity.
Trooper Steeves completed his search and arrested Defendant. He then transported Defendant to a VSP barracks and permitted Defendant to call his Pennsylvania attorney. Following that conversation, Defendant advised that he did not wish to talk to Trooper Steeves. Trooper Steeves nonetheless requested Defendant's permission to search his wallets. Defendant consented to a search of his brown wallet, but not his black wallet. Defendant signed a written consent form for the brown wallet, and Trooper Steeves subsequently sought and obtained a search warrant for the black wallet. The search of the black wallet yielded additional allegedly counterfeit credit cards and a false identification card.
At Defendant's request and with the government's consent, the court continued its evidentiary hearing so that Defendant could present the testimony of Mr. Pierre-Louis by videoconference from his location in Brooklyn, New York. Mr. Pierre-Louis identified himself as Defendant's friend from high school and testified that the two speak on the phone daily or every other day and see each other often.
In April of 2015, Mr. Pierre-Louis rented a silver Dodge Charger from Enterprise Rental Car Company ("Enterprise") for a rental period starting on April 15, 2015 and expiring on April 22, 2015 because his personal vehicle was being repaired. Mr. Pierre-Louis credibly testified that on the morning of April 23, 2015, Defendant called him and asked to borrow his vehicle. According to Mr. Pierre-Louis, Defendant did not tell him why he wanted to borrow the vehicle or advise that he intended to travel to Vermont that day. Mr. Pierre-Louis testified that he did not ask for this information. Mr. Pierre-Louis was aware that Defendant had his own vehicle at the time, but he did not ask him why he was not using it. In the past, he had allowed Defendant to use his personal vehicle, but he had never previously allowed Defendant to use a vehicle rented in his name. Because Mr. Pierre-Louis had previously rented vehicles from Enterprise, he was aware that he could not permit someone else to drive the Dodge Charger without notifying Enterprise of that fact. Mr. Pierre-Louis did not allow any other individual to drive the Dodge Charger. In light of these facts, the court finds Mr. Pierre-Louis's testimony that he permitted Defendant to borrow the Dodge Charger without any discussion of its intended use not credible.
Mr. Pierre-Louis previously kept rental vehicles from Enterprise beyond the termination date of the rental agreement and knew that Enterprise would merely charge his credit card for any additional days. He disclaimed any knowledge of the marijuana flake in the Dodge Charger and noted that he had never seen Defendant smoke or possess marijuana. Although Mr. Pierre-Louis claimed passengers that he had transported in the Dodge Charger neither smoked marijuana nor showed marijuana to him, he nonetheless speculated that a passenger was the probable source of the marijuana in the vehicle.
Mr. Pierre-Louis spoke by cell phone to Defendant twice during the traffic stop. In the first call, Defendant advised that he had been pulled over for speeding and "the cop wanted to search the car and do I give permission. He said that he got pulled over doing [ninety-seven] or [ninety] something." (Doc. 30 at 18:18-20.) Defendant advised Mr. Pierre-Louis that "the cops noticed weed on the floor" and asked ifMr. Pierre-Louis gave permission to search the vehicle. Mr. Pierre-Louis told Defendant to consent to a search of the vehicle. In the second cell phone call, Defendant ...