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United States v. Marsh

United States District Court, D. Vermont

April 8, 2016



Honorable J. Garvan Murtha, United States District Judge

I. Introduction

Defendants Kassim Marsh, Aliquan Umstead, and Jahlil Marsh (collectively, “Defendants”) are charged in a second superseding indictment with conspiracy to distribute heroin and cocaine and distribution of heroin in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C) in this multi-defendant case. (Doc. 18 (Counts 1, 3-4, 7, 10, 13-15, 17).) Umstead moves to suppress evidence obtained during a September 23, 2013 vehicle stop on Interstate 91 near Hartland, Vermont, and to dismiss the indictment or, in the alternative, suppress evidence and exclude testimony regarding a May 27, 2014 search of Adam Brown’s house, arguing his Fourth, Fifth, and Fourteenth Amendment constitutional rights were violated. (Doc. 126.) Kassim Marsh and Jahlil Marsh joined Umstead’s motions and incorporated his arguments. (Docs. 130, 131.) The government opposes the motions. (Docs. 135, 140, 143.) The Court held an evidentiary hearing on January 21, 2016, and heard testimony from Vermont State Police (“VSP”) Sergeants Michael Studin and Eric Albright. Umstead and the government filed additional briefing following the hearing. (Docs. 176, 177.)

For the reasons stated below, the Court denies Defendants’ motions.

II. Background

The Court finds the following facts from the evidence presented at the January 21 hearing, and from other documents submitted as evidence by the parties, including a cruiser camera video. At approximately 5:40 in the evening on September 23, 2013, Sergeant Studin stopped a car he had observed cross the white fog line for almost ten seconds on a straight stretch of Interstate 91. Studin has been a VSP Sergeant since July 2003. He inquired if the female driver was sleepy and observed a male passenger in the front, and four male passengers in the back. He requested her paperwork and identification from the passengers; he never received a current insurance card for the vehicle or identification of the occupants other than the driver’s license and Umstead’s Vermont Human Resources Services identification card--a card Studin had not before encountered. Umstead explained the card was issued to him upon his release from jail in Vermont.

Sergeant Studin testified he observed smoke rising from beneath a backseat passenger that smelled of clove and burnt marijuana and marijuana flake on the envelope the frontseat passenger retrieved from the glovebox. He asked how much marijuana was in the car; the driver and front passenger answered none and a backseat passenger answered it was all gone because they had smoked it.

The passengers identified themselves as Tysheed William, Khamil Marsh, Jahlil Marsh, Kassim Marsh, all from Newark, New Jersey, and Aliquan Umstead, from Springfield, Massachusetts. The occupants gave varying responses regarding their destination, including a friend’s house and a hotel in South Burlington. They were traveling from Putney to Burlington because Khamil Marsh had a hearing for a possession of heroin charge in state court at 2:30 on September 24. Sergeant Studin found it odd the others would be traveling to the court hearing for support and that they were traveling the day before so they may incur a hotel expense.

Sergeant Studin advised the driver he would be issuing her a warning. She agreed to exit the car and accompany him to his cruiser. While in the cruiser, she told Sergeant Studin she was not staying in Burlington and would be returning to Brattleboro, Umstead had been arrested in Brattleboro in May for possession of cocaine, and the passengers did not have clothing or bags in the car. She refused consent to search the vehicle.

In under five minutes, two other troopers, Sergeant Eric Albright and Trooper Dustin Robinson, had arrived to assist with the traffic stop. Sergeant Albright has been a VSP trooper for 21 years. Sergeant Studin told Sergeant Albright the names of the occupants and he recognized William’s name from a prior encounter. Sergeant Albright inquired whether he had a tattoo of red lips on his neck which Sergeant Studin verified. In the prior encounter, the officers had determined his real name to be Tyrone Cromer. Sergeant Studin ordered him to exit the vehicle and he confessed to providing a false name, explaining he was on probation in New Jersey and was not allowed to leave the state.

The officers contacted Megan Sheridan of the Vermont State Police Drug Task Force because Sergeant Albright, who regularly interacted with her as part of his regular duties, knew she had been investigating the five men for approximately six months. She informed them that, because of the ongoing investigation, she did not want them arrested except for Cromer, who had provided a false name, but they should search the car. Sergeant Studin requested and Trooper Robinson performed an exterior scan of the vehicle with his canine that did not result in a positive alert. Sergeant Studin decided to seize the car and apply for a search warrant. He asked for and received permission to search the passengers, finding two pieces of a marijuana blunt in Umstead’s pocket with the same odor he smelled earlier in the stop. Sergeant Studin arrested Cromer and transported him to the Rockingham State Police barracks; the others were given a courtesy ride to a gas station.

At the garage in the barracks, Trooper Robinson’s canine positively alerted to the front driver’s door and the right rear quarter panel. Based on Sergeant Studin’s affidavit, a state court judge issued a warrant. A search of the car revealed a small bag of marijuana in the sunglass compartment, a small piece of smoked blunt under the driver’s seat, five cell phones, and over 1, 000 bags of heroin, Cromer’s New Jersey identification card, and cash in other bags in the trunk.

III. Discussion

A. Motions to ...

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