United States District Court, D. Vermont
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
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