United States v. Harris

1

UNITED STATES OF AMERICA, Plaintiff, v. HASSAN HARRIS, Defendant.

No. 2:20-cr-00679 (BRM)

United States District Court, D. New Jersey

August 23, 2023

Not For Publication

OPINION

HON BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Hassan Harris's (“Defendant”) Motion to Suppress. (ECF No. 65). Plaintiff, the United States of America (the “Government”) filed an Opposition. (ECF Nos. 67). Having reviewed the parties' submissions filed in connection with the Motion and having held oral argument on June 13, 2023, for the reasons set forth below and for good cause having been shown, Defendant's Motion to Suppress (ECF No. 65) is DENIED.

I. Background

On June 23, 2020, Officers Ryan O'Grady and Ryan Killimett (collectively, the “Officers”) of the Union Township Police Department initiated the stop of a black Ford Taurus after noticing the vehicle was “heavily tinted.” (ECF No. 56 (Hearing Tr. 2) at 37:14-25.) A search of the license plate revealed the registered owner's license and registration was suspended. (Id.) The Officers continued to follow the vehicle which was traveling around fifty miles per hour in a thirty-five-mile-per-hour zone. (Id.) They activated their overhead lights, notified dispatch, and followed the vehicle for less than half of a mile until the vehicle pulled over on Springfield Avenue. (Id. at 38:1-14; 67:3-8.)

Once the vehicle was stopped on the shoulder, Officer O'Grady approached the driver side of the car. (Id. at 40:15-18.) Defendant opened the driver-side door because the window was not working at the time. (Id.) Officer O'Grady testified, at that time, he observed the smell of raw marijuana, but did not alert the driver so as not to alarm him. (Id. at 40:19-41:6.) Officer Killimett agreed that, while speaking with Defendant, he smelled raw marijuana emanating from Defendant's car and person. (Id. at 94:17-24.) Defendant “fumbl[ed] around” for his documentation, including in the backseat of the car, until Officer O'Grady asked him to exit the vehicle, out of a concern for the Officers' safety. (Id. 41:7-18.) His safety concerns included the vehicle's location in the narrow shoulder and his position in the “middle of the road.” (Id. 41:1924.) They re-positioned to the rear of Defendant's vehicle, between his car and the patrol car. (Id. at 42:4-7.)

Again, Officer O'Grady reported smelling marijuana near the trunk of Defendant's vehicle. (Id. at 42:8-14.) Officer O'Grady informed Defendant that he smelled marijuana and asked him about its origin. (Id. at 42:16.) Defendant responded that he had “just finished smoking” marijuana. (Id. at 42:17-21; 109:10-15.) Officer O'Grady mentioned the smell two or three more times. (Id. at 42:25-43:10.) Officer Killimett similarly reported smelling marijuana and noted a leafy, green residue on Defendant's shirt and pants. (Id. at 97:4-18.) The Officers explained to Defendant why they were proceeding with a search of Defendant's car and person, and Defendant appeared to understand. (Id. at 43:11-18.) Officer Killimett “phon[ed] in a PC search,” meaning he notified his supervisor the Officers planned to conduct a probable cause search. (Id. at 77:6-78:13.)

During the search of the car, the Officers found 110 wax heroin folds containing fentanyl^[1]in the back seat of the interior of the vehicle, and a fanny pack with a loaded handgun with a defaced serial number on the rear passenger seat. (Id. at 44:1-4.) During a search of the trunk, the Officers recovered 0.634 grams of raw marijuana in a sealed bag in the trunk. (Id. at 44:7-10; ECF No. 55 (Hearing Tr. 1) at 30:2-5.) On August 5, 2020, a federal grand jury returned a three-count Indictment, charging Defendant with: Possession of a Firearm by a Convicted Felon (Count One); Possession with Intent to Distribute Heroin and Fentanyl (Count Two); and Possession of a Firearm in Furtherance of a Drug Trafficking Crime (Count Three). (ECF No. 1.)

On October 15, 2021, Defendant filed an Omnibus Motion, which included a motion requesting that evidence obtained during a search of Defendant's vehicle be suppressed, or alternatively, that an evidentiary hearing be scheduled. (ECF No. 29 at 6-10.) The Government filed an Opposition on November 12, 2021, arguing, in part, that Defendant's request for suppression was baseless. (ECF No. 32.) On December 7, 2021, Defendant filed a Reply, reaffirming that an evidentiary suppression hearing was necessary. (ECF No. 35.)

The Court held a Frye and Evidentiary hearing on February 1 and February 17, 2023. (ECF Nos. 52, 54.) Defendant called David Leff (“Leff”) as an expert^[2] on the issue of the detection of the odor of marijuana, both in raw and burnt form, and the effect of different containers on the emanation of the odor. (Hearing Tr. 1 at 13:17-20.) Leff explained, in this case, Defendant was stopped on the side of a heavily-traveled, four-lane highway, and was questioned by the Officers while his car was still on and emanating exhaust. (Id. at 31:15-21.) Leff noted, from his review of the body camera footage, that the Officers expressed, ad nauseam, they smelled marijuana coming from the vehicle. (Id. at 31:21-32:1.) Eventually, Defendant responded to the Officers that he had been smoking. (Id. at 45:19.)

Leff explained, in the report, the Officers noted they smelled a strong odor of “raw marijuana from the interior of the vehicle.” (Id. at 35:4-11.) Ultimately, the amount recovered was “a very small amount,” a little more than a half of a gram. (Id. at 32:22-25.) It was in a smellproof, mylar packet, rolled up in a jacket pocket inside of the trunk. (Id. at 33:1-4; 33:16-20.) Leff testified there was no likelihood that a smell of raw marijuana emanated at all from the smell-proof bag. (Id. at 33:24-34:2.) In his opinion, “based on a totality of the circumstances and to a reasonable degree of professional certainty, there was no odor” of raw marijuana detected in the cab of the car. (Id. at 42:8-12.) He did concede, however, it was possible the Officers could have smelled burnt marijuana from where he was positioned, (id. at 44:20-21), which, at least at some point, was “in close range” about “two feet” away from the vehicle, (id. at 45:5-10). However, there was no evidence of burnt marijuana, paraphernalia, or smoking material in the ashtray of the car, either in the body cam footage or logged in the property receipt. (Id. at 49:11-18.)

Both Officers testified as fact witnesses at the hearings.^[3] Officer O'Grady conceded that, in his report, he only noted he smelled raw marijuana or the odor of marijuana, generally, and did not mention burnt marijuana. (Hearing Tr. 2 at 54:3-11.) However, in his training and experience, the smell of either raw or burnt marijuana can provide the basis for a search. (Id. at 47:1-10.) He testified both raw and burnt marijuana omit a pungent smell, which may remain in the air or on clothing and other items after it is removed from an area. (Id. at 47:18-48:16.) Officer O'Grady testified if both raw and burnt marijuana are in the same location, it may be difficult to determine which odor he is detecting, but he would be able to identify there was a smell of marijuana generally in the air. (Id. at 48:17-24.) Officer Killimett agreed, adding that raw marijuana can linger even longer than burnt marijuana. (Id. at 106:20-107:9.)

Following the hearings, on May 15, 2023, Defendant filed a Post-Hearing Brief in Support of Suppression. (ECF No. 65.) The Government filed a Response. (ECF No. 67.) Oral argument regarding Defendant's Motion to Suppress was held on June 13, 2023. (ECF No. 69.) Defendant filed a Supplemental Letter on June 14, 2023, clarifying some of the defense's positions that he mistakenly misrepresented at oral argument. (ECF No. 70.) This included that he erred in representing the “stop was appropriate” and the legality thereof should be conceded. (Id.)

II. Legal Standard

Federal Rule of Criminal Procedure 41(h) provides “[a] defendant may move to suppress evidence in the court where trial will occur, as Rule 12 provides.” Fed. R. Crim. Pro. 41(h). Rule 12 requires suppression motions be made prior to trial. Fed. R. Crim. P. 12 (b)(3)(C).

The Supreme Court “created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.” Davis v. United States, 564 U.S. 229, 231 (2011). “The Fourth Amendment forbids ‘unreasonable searches and seizures,' and this usually requires the police to have probable cause or a warrant before making an arrest.” Herring v. United States, 555 U.S. 135, 136 (2009). However, a traffic stop of a vehicle requires only reasonable suspicion of criminal activity, rather than probable cause. Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (citing Terry v. Ohio, 392 U.S. 1, 29 (1968)). A policeman who lacks probable cause, “but whose ‘observations lead him reasonably to suspect' that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to ‘investigate the circumstances that provoke suspicion.'” Id. The test for reasonable suspicion is an objective one-“as a general matter, the decision to stop an automobile is reasonable where . . . a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996); United States v. Delfin-Colina, 464 F.3d 392, 397 (3d Cir. 2006) (explaining police officers may perform investigatory traffic stops based on reasonable suspicion that an individual has violated a traffic law). Where a stop is not supported by reasonable suspicion, any evidence obtained as a result must be suppressed, absent some other exception. United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006).

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