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United States v. Livingston

United States District Court, D. Vermont

June 3, 2016

UNITED STATES OF AMERICA
v.
FELICIA LIVINGSTON

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS (DOC. 30)

          Christina Reiss, Chief Judge.

         This matter came before the court on May 5, 2016 for an evidentiary hearing with regard to Defendant Felicia Livingston's motion to suppress (Doc. 30). At the hearing, Drug Enforcement Agency ("DEA") Agent Adam Chetwynd and DEA Case Agent Timothy Hoffman testified on behalf of the government. Defendant did not testify or call any witnesses.

         Defendant argues that the DEA lacked probable cause for her warrantless arrest because the information from a confidential source ("CS1") was both insufficiently reliable and consisted only of a general description that would not cause a person of reasonable prudence to identify her as a suspected drug courier. The government opposes the motion, arguing that CS 1 provided reliable information on prior occasions, the DEA corroborated key components of CSl's information on the day in question, and CS1 's description of the suspected drug courier was sufficiently particularized to provide probable cause for Defendant's arrest.

         Pursuant to a two count Indictment, Defendant is charged with one count of conspiracy to distribute cocaine and heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(B-C), 846. The government is represented by Assistant United States Attorney Michael P. Drescher and Assistant United States Attorney Kunal Pasricha. Defendant is represented by Richard C. Bothfeld, Esq.

         I. Findings of Fact.

         In September 2015, an individual known as "Unc" was the target of an ongoing DEA investigation into a drug trafficking organization that Agent Hoffman described as "more sophisticated . . . with larger quantities of heroin being distributed in Vermont from New York." (Tr. 5/5/16 at 42:25-43:2.) The DEA had made multiple seizures in the course of the Unc investigation, including seizures that yielded approximately 200 grams of heroin and 200 grams of cocaine base. The quantities seized appeared to vary based on the dates and times that drug couriers traveled from New York City to Vermont.

         On or about September 2, 2015, DEA agents investigated a tip from CS1 that Unc was staying at La Quinta hotel in South Burlington, Vermont, and would soon be traveling to New York City to obtain illegal narcotics. CS1 had provided reliable information on prior occasions, [1] and was communicating with DEA Agent Brandon Hope who acted as CSl's "handler[.]" (Tr. 5/5/16 at 56:25-57:1.)

         Thereafter, DEA agents partially corroborated CS1 's tip by determining that Unc had registered room 117 at La Quinta in the name of Gilbert Cruz, and that he had traveled to the Bronx where he was staying at a Days Inn hotel. DEA agents observed Unc at the Bronx location, and verified that he had rented a room under another name they knew to be associated with him. CS1 advised that he/she was traveling with Unc back to Vermont. In the early morning hours of September 3, 2015, DEA agents observed Unc returning to La Quinta and entering room 117.

         CS1 told Agent Hope that Unc would send a drug courier to Vermont with the narcotics that Unc had purchased. CS1 advised that the courier would arrive on a Greyhound bus in Burlington, Vermont on the morning of September 3, 2015. CS1 described the courier as an African-American woman known as "Snoop, " who had "manly features" and who was "larger" or "larger in stature" and would be traveling alone[2] and carrying a large load of narcotics. (Tr. 5/5/16 at 11:20-22, 60:12-15.) Agent Chetwynd credibly testified that he did not believe CS1 had personally observed the drug courier.

         In anticipation of the drug courier's arrival, DEA agents conducted surveillance at the Greyhound bus station, which was located at the Burlington International Airport. Agent Chetwynd was part of the team conducting surveillance at the bus station, while Agent Hoffman was positioned at La Quinta. Between the hours of 7:00 a.m. and 8:00 a.m., the DEA agents surveilled the arrival of a Greyhound bus from New York City and identified no one matching CSl's description of the drug courier. As a result, the DEA surveillance team left the bus station and returned to La Quinta. CS1 subsequently advised Agent Hope that the drug courier had missed the bus and would arrive on a bus later that same day. Agent Hope relayed this information to the DEA surveillance team.

         On September 3, 2015, several Greyhound buses from New York City arrived at the Burlington bus station. According to Agent Chetwynd, someone in the DEA's office checked the bus schedules, but neither he nor Agent Hoffman could recall whether they knew how many buses would arrive that day, or whether the drug courier was expected to be a passenger on the next bus to arrive after the bus she had missed or on a different bus.

         Between approximately 1:00 p.m. and 2:00 p.m., DEA agents surveilled the arrival of a Greyhound bus from New York City at the Burlington bus station. Agent Hope radioed that he had spotted a woman matching the drug courier's description disembarking from the bus. He described her as wearing a black jacket and multi-colored (blue and gray) camouflage pants. As he received this dispatch, Agent Chetwynd also saw the woman in question and concluded that she matched CSl's description. He watched as the woman briefly entered the airport terminal for a matter of seconds and then exited from the doors across from the airport's taxi stand. He did not consider her brief entrance into the airport terminal suspicious. Agent Chetwynd exited his vehicle, approached the woman, identified himself as a federal agent, and told her she was under arrest. The woman was subsequently identified as Defendant. A search incident to her arrest yielded distribution quantities of heroin and cocaine base concealed in Pringles containers located in the bags she was carrying. Defendant was thereafter provided Miranda warnings, waived her Miranda rights, and made incriminating statements.

         At the suppression hearing, Agent Chetwynd could not recall whether there were other African-American females on the same bus as Defendant, or whether all passengers on the bus had disembarked before he and Agent Hope identified Defendant as the drug courier. Agent Chetwynd, however, recalls that he saw no one else matching CS1 's description.

         Agent Chetwynd identified Defendant in the courtroom. He noted that, with the exception of her clothing and hairstyle, her appearance was unchanged from the time of her arrest. Defendant's height and weight were not provided to the court, nor was there any attempt to describe Defendant for the record. The court advised the parties that it was having difficulty concluding that Defendant matched CS1 's description of a woman with "manly features" and "of large stature." (Tr. 5/5/16 at 75:25-76:3.)

         II. Conclusions of Law and Analysis.

         A. ...


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