United States v. Alexander

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE (DOC. 16)

          Christina Reiss, Chief Judge United States District Court.

         On April 11 and May 1, 2017, the court held an evidentiary hearing with regard to Defendant Quincy Alexander's motion to suppress the fruits of his September 29, 2016 encounter with officers of the Burlington Police Department ("BPD"). (Doc. 16.) Defendant argues that he was seized without reasonable suspicion of criminal activity and arrested without probable cause. The government opposes the motion and maintains that the encounter with Defendant was consensual until law enforcement developed a reasonable suspicion to detain Defendant and later probable cause to arrest him. On June 8, 2017, the court took the motion under advisement after Defendant's counsel informed the court of his decision not to file supplemental briefing.

         Defendant is charged in a two-count Indictment with knowingly and intentionally possessing cocaine base with an intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and with possessing a firearm having previously been convicted of a felony in violation of 18 U.S.C. § 922(g)(1).

         The government is represented by Assistant United States Attorneys Michael P. Drescher and John J. Boscia. Defendant is represented by Assistant Federal Public Defender Steven L. Barth.

         I. Findings of Fact.

         On September 28, 2016 at approximately 5:00 p.m., BPD responded to a report of a drive-by shooting at a multi-unit residence located at 31 Hyde Street in Burlington, Vermont. Witnesses reported seeing an African-American male with a large build making cell phone calls outside the building immediately prior to the shooting.

         BPD officers subsequently found three bullet holes in the 31 Hyde Street building, one penetrating the front door of unit #7 on a trajectory towards unit #6, one lodged in an interior wall also on a trajectory towards unit #6, and a third in a second floor wall, just inches from an unoccupied crib where an infant usually sleeps. The trajectory for this third bullet also passed in close proximity to unit #6. There were no reported injuries. BPD officers identified the occupants of unit #6 as Darren McCray, Shelly Sanders, Leon Delima, David Rosario, and Chelsea Barber. They were aware of two recent assault and robberies at unit #6.

         A female who lived across the street from 31 Hyde Street stated that she had witnessed the drive-by shooting. She reported that three to four gunshots were fired from the passenger side of a maroon colored 2015 Ford Escape with tinted windows. Through a partially lowered driver's side window she saw a male operator of unknown age and race before the vehicle sped off. Because she worked in the automotive industry, she advised that she was very sure of the make, model, and year of the vehicle. She was also certain the vehicle did not have Vermont license plates, but she was less certain of the issuing state. She stated that the vehicle's out-of-state "colored" plates may have been from either Pennsylvania or New York. In response to her report, BPD disseminated a "be on the lookout" ("BOL") for a vehicle matching the description she provided.

         On the morning of September 29, 2016, BPD held a briefing on the drive-by shooting in which the BOL and details of the shooting were disseminated. Detective Dwayne Mellis was among the BPD officers tasked with canvassing local hotel parking areas, mall parking lots, and parking garages for a vehicle matching the BOL description. On the same day of the briefing, he located a vehicle that appeared to match the BOL description on the second level of a parking garage attached to a downtown Burlington mall that included a Macy's department store (the "Macy's garage"). The vehicle in question was a maroon Ford Escape with rear tinted windows and Illinois plates. Detective Mellis called BPD dispatch for a records check and determined that the vehicle was a 2016 Ford Escape registered to Hertz Rental Car. Although the vehicle was unoccupied when he first discovered it, he later observed an African-American male enter the vehicle. He contacted BPD Sergeant Paul Petralia to report the apparent vehicle match and the Illinois plate number, and then left his location to continue his canvass.

         Sergeant Petralia proceeded to the Macy's garage apparently dressed in plain clothes^[1] and carrying a holstered firearm. He arrived in an unmarked vehicle and parked a short distance away from the Ford Escape which was parked nose-in facing a guardrail. Sergeant Petralia ran the vehicle's plate number and determined that it belonged to a rental company. He noted that a male was seated in the driver's seat. He conferred with BPD Lieutenant Michael Warren by cell phone and they formulated a plan to make contact with the operator after Lieutenant Warren arrived on the scene.

         Minutes later Lieutenant Warren arrived in an unmarked vehicle at the Macy's garage dressed in plain clothes with a holstered and concealed firearm. For safety reasons, he and Sergeant Petralia decided to approach on either side of the Ford Escape with Sergeant Petralia approaching the passenger side while Lieutenant Warren approached the driver's side. When he reached the vehicle, Sergeant Petralia knocked on the passenger-side window, displayed his badge, and said words to the effect of: "We're the police. Could you roll down your window?" In response, Defendant rolled down the vehicle's windows, whereupon both Sergeant Petralia and Lieutenant Warren smelled the strong odor of burnt marijuana.^[2] From his vantage point, Lieutenant Warren observed a large pile of currency on the driver's side floor near Defendant's feet and two cell phones, one in Defendant's hand and the other on the passenger's seat.

         Lieutenant Warren asked Defendant if he would mind speaking to them outside the vehicle and Defendant consented by exiting the Ford Escape. Once outside the vehicle, Lieutenant Warren asked Defendant if he could pat him down for weapons. In response, Defendant raised his hands in the air and said something to the effect of "wow, okay." No weapons or contraband were detected on his person.

         The BPD officers advised Defendant that they were investigating a drive-by shooting and that there was a BOL for the vehicle involved which matched Defendant's vehicle. They asked Defendant for identification and he produced a New York operator's license identifying him as "Quincy Alexander." Sergeant Petralia immediately recognized Defendant's name as being associated with a December 27, 2015 fatal shooting on Church Street in Burlington. Defendant was present in the area of the shooting, as were 31 Hyde Street residents Leon Delima and Shelly Sanders. After the shooting, Defendant and Mr. Delima fled the scene and were later detained. Defendant was subsequently identified as an associate of the victim.

         Realizing that he had left his audio recording device in his vehicle, Lieutenant Warren went back to retrieve it. While doing so, he called Detective Jeffrey Beerworth, the lead investigator of the drive-by shooting, who advised that Quincy Alexander fled from the scene of the December 27, 2015 homicide on Church Street and that some of the individuals living at 31 Hyde Street had also been present at that homicide. With his audio recorder concealed in a notebook, Lieutenant Warren returned to the Ford Escape and recorded the remainder of the encounter in the Macy's garage.

         When the BPD officers called in Defendant's identification, they were advised that his operator's license was civilly suspended. They also learned from their conversation with Defendant that he had previously missed a court appearance and a bench warrant had issued for his arrest but was apparently vacated that morning when Defendant appeared in court. Because the presiding judge could not address his appearance in the morning, Defendant was told to come back to court in the afternoon. The BPD officers were aware that Defendant was facing a state court charge for providing false information to a police officer.

         When asked about the odor of marijuana, Defendant admitted that he had smoked marijuana that morning to "take the edge off his court appearance. Defendant further explained that he was from New York and had arrived in Vermont with his girlfriend a few days earlier and was staying at the Motel 6 in Colchester, Vermont. He stated he came to Vermont in order to clear up the bench warrant and some tickets and to obtain "bud" which the BPD officers credibly testified is a slang term for marijuana. Defendant advised that the Ford Escape was a rental vehicle and that his girlfriend, Elena Roberts, a public defender, had rented it for him to take to Vermont. Defendant used his cell phone to call Ms. Roberts so that she could speak to Sergeant Petralia. When Sergeant Petralia asked if she was in Vermont, Ms. Roberts advised him that she was in New York City and that Defendant had come up to Burlington the previous night to address some traffic violations. She confirmed that neither she nor Defendant consented to a search of the Ford Escape.

         After concluding his phone call with Ms. Roberts, Sergeant Petralia and Lieutenant Warren confronted Defendant regarding his inconsistent statements with respect to when he came to Vermont and with whom. In response, Defendant attempted to explain his relationship with Ms. Roberts, claiming she was his girlfriend and then claiming she was his wife and further explaining that he had another girlfriend named Erin from Winooski, Vermont. When the BPD officers asked Defendant about the two cell phones in the Ford Escape, he claimed that one phone was an old phone that only played music. The officers, however, observed the "old phone" receiving incoming calls.

         Throughout the encounter, Defendant continued to decline consent to search the Ford Escape and further declined consent to allow the officers to swab his hands for gunshot residue. He, however, confirmed that he had been in Burlington the ...