U.S.A v. Mckreith

708 F.Supp.2d 216

UNITED STATES of Americav.Martin McKREITH.

No. 3:09CR117 (MRK).

United States District Court D. Connecticut.

March 8, 2010.

Nora R. Dannehy, S. Dave Vatti, U.S. Attorney's Office, Hartford, CT, Peter D. Markle, U.S. Attorney's Office, New Haven, CT, for United States of America.

Gerald Lewis Harmon, Meriden, CT, for Martin McKreith.

RULING AND ORDER

MARK R. KRAVITZ, District Judge.

In this case, involving 33 individuals, Defendant Martin McKreith has been indicted on charges of conspiracy to possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 846; and possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 18 U.S.C. § 2. Mr. McKreith has now moved to suppress two kilograms of cocaine found in a car he was driving on April 8, 2009. See Mot. to Suppress [doc. # 702]. There are three issues raised by the motion: first, whether the police stop of the car that Mr. McKreith was driving was pretextual; second, whether the search of the interior of the car was based on probable cause; and third, whether a warrantless search was justified under the “automobile exception” even where the car was under the control of the police for all practical purposes. The Court held an evidentiary hearing on the suppression motion on February 18, 23, and 24, 2010. Four witnesses testified at the hearing. Based upon the briefs submitted by the parties and the evidence presented at the evidentiary hearing, the Court concludes that the stop of the car that Mr. McKreith was driving on April 8, 2009, was valid and not pretextual, that the search of the interior of the car was based upon probable cause, and that no search warrant was required. Therefore, the Court DENIES Mr. McKreith's Motion to Suppress [doc. # 702].

I.

The facts giving rise to Mr. McKreith's suppression motion are largely undisputed. In connection with an investigation of Peter Maylor, one of Mr. McKreith's co-defendants, officers associated with the Drug Enforcement Agency (DEA) obtained an order allowing law enforcement officers to wiretap Mr. Maylor's phone. Mr. Maylor was believed to be a large distributor of drugs in the Hartford area. In approximately December 2008, there were calls to Mr. Maylor's phone from a person who had subscribed to a phone that listed 35 Love Lane in Hartford as its address. That is where Mr. McKreith lived.

On April 8, 2009, case agents investigating Mr. Maylor intercepted approximately ten phone calls between Mr. Maylor and Glenn Smith (another co-defendant, also indicted for conspiracy to distribute narcotics), during which the two apparently discussed driving down to New York to pick up drugs. The calls also suggested that Mr. Maylor and Mr. Smith intended to find a third person to drive a second car back from New York. Agents also intercepted a call between Mr. Maylor and the phone subscribed to Mr. McKreith, during which Mr. Maylor told Mr. McKreith that Mr. Maylor would pick up Mr. McKreith at his house.¹ Surveillance of Mr. Maylor was established, and agents observed Messrs. Maylor and McKreith proceed to Mr. Smith's residence in Mr. Maylor's Nissan Titan. The three of them then drove to the Bronx, where agents observed what they believed to be a drug transaction with co-defendant Luis Montas, a known supplier of Mr. Maylor. At some point, Mr. McKreith left Messrs. Maylor and Smith, and the agents concluded that he was driving back to Hartford in a separate car that probably contained the drugs that were purchased from Mr. Montas. In fact, agents intercepted a call between Messrs. Maylor and McKreith in which Mr. McKreith indicated that he had successfully picked up the separate car, and Mr. Maylor instructed him to drive back to Connecticut. Certain agents followed Messrs. Maylor and Smith back to Connecticut, although they lost those two in or around Stratford. Other agents returned to Hartford and Newington to see if they could locate Mr. McKreith.

Based on the timing of the activities in New York and the phone call between Messrs. Maylor and McKreith, it appears that Mr. McKreith left New York to return to Hartford at approximately 4:00 p.m. Slightly before 7:00 p.m. that evening, two agents observed Mr. McKreith leaving 35 Love Lane in Hartford in a Mercury Villager minivan that was known to belong to Mr. Smith. The agents lost sight of the Villager shortly thereafter. Other agents searched the Northeast section of Hartford for the minivan, and eventually DEA Task Force Officer Bellizzi located the Villager on Garden Street in Hartford, not far from Love Lane. The Villager was backing out onto Garden Street below Albany Avenue, and Officer Bellizzi was able to pull up directly behind it. At or around the same time, Detective Pillai of the Hartford Police Department turned onto Garden Street and saw Officer Bellizzi's car and the Villager. The Villager proceeded north on Garden Street, but when the car got to Albany Avenue the light was red. Nevertheless, according to both Officer Bellizzi and Detective Pillai, the Villager proceeded through the red light and across Albany Avenue, nearly hitting a car proceeding down Albany Avenue according to Detective Pillai.

Based on DEA radio transmissions among the team members, either Detective Laureano, also of the Hartford Police Department, or Detective Pillai called for a Hartford police officer to stop the Villager because of the traffic violation.² Hartford Police Officer Morrison was in the vicinity at the time, and he pulled onto Garden Street and caught up to the Villager across Albany Avenue. The Villager then took a left onto Mather Street, at which point Officer Morrison-who had been informed that the Villager had run a red light-activated his lights and pulled the Villager over. Officer Morrison asked for Mr. McKreith's drivers license, registration and insurance card. The car was registered to Mr. Smith not to Mr. McKreith. In any event, when Officer Morrison provided information to the dispatcher regarding Mr. McKreith, he learned that there was an outstanding warrant for Mr. McKreith's arrest for parole violations. Officer Morrison then returned to the car in which Mr. McKreith was sitting and asked him to step out of the car so Officer Morrison could place him under arrest.

At or around the same time, Detective Pillai, Officer Billizzi, Detective Laureano, and Detective Plourde, a narcotics canine officer, arrived at the scene. The canine officer arrived within five minutes of the stop. The dog was escorted around the exterior of the vehicle, but it is unclear whether she alerted to the presence of narcotics on the driver's side of the van or simply showed some interest in that area. In any event, the officers allowed the dog to enter the interior of the vehicle, and she alerted to an area behind the driver's seat. Detectives Pillai and Billizzi then looked where the dog was alerting and found a hidden compartment. Inside the compartment were two bricks of what was later determined to be cocaine-a total of two kilograms.

II.

As an initial matter, the Court notes that during the pre-hearing briefing on this motion, the Government stated that the dog had alerted during the walk-around of the exterior of the minivan, and was only allowed to enter the vehicle after a positive alert. Therefore, because an exterior walk-around by a canine is not a search for Fourth Amendment purposes, and because an alert during an exterior walk-around provides probable cause for a search, the Government argued that the search of the Villager was lawful. See Illinois v. Caballes, 543 U.S. 405, 410, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (exterior walk-around does not implicate Fourth Amendment); United States v. Collins, 206 Fed.Appx. 23, 24 (2d Cir.2006) (summary order) (canine's positive alert on the exterior of a vehicle provides probable cause to search the vehicle).

However, during the hearing it became less clear whether the dog actually alerted before entering the minivan. Detective Plourde could not remember whether the dog alerted to the exterior of the van, and he also testified that he was not so concerned with the exterior walk-around because he intended have the dog enter the Villager whether she alerted or not. According to Detective Plourde, he believed such action was justified as part of a search incident to Mr. McKreith's arrest. Detective Plourde also testified that the other officers-who testified that the dog alerted on the exterior of the Villager-were not sufficiently trained or acquainted with his canine to be able to tell an alert from mere interest.

Based on Detective Plourde's testimony, the Government has wisely decided not to rely on the dog's alleged alert to the exterior of the car. Instead, the Government claims that they had probable cause, based on the totality of the circumstances, to search the car once it was stopped for a traffic violation, and that they did not need a warrant to do so. Mr. McKreith argues that the stop was pretextual; that no probable cause existed for the search; and that even if probable cause did exist, the officers were required to obtain a warrant before conducting the search. The Court addresses each of these issues in turn.

Automobile Stop

Both sides agree that where officers have probable cause to believe that a traffic violation has occurred, police may stop a vehicle. As the Supreme Court held in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), “as a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Id. at 810, 116 S.Ct. 1769; see also, e.g., United States v. Dhinsa, 171 F.3d 721, 724 (2d Cir.1999) (“[A] police officer who observes a traffic violation may stop a car without regard to what a ‘reasonable officer’ would do under the...