United States v. Mikelic

UNITED STATES OF AMERICA

v.WOLFE MIKELIC

3:10-cr-132 (CFD)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Dated: September 19, 2011

RULING ON MOTION TO SUPPRESS & MOTION FOR FRANKS HEARING

The defendant, Wolfe Mikelic, is charged with conspiracy to distribute and possession with intent to distribute marijuana.¹ Mikelic has moved to suppress (1) evidence seized during a search of a leased storage unit in Branford, Connecticut; (2) evidence seized from Mikelic's car following his arrest on January 29, 2010; and (3) oral statements that Mikelic made following his arrest.² Mikelic has also moved for a Franks hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The Court held an evidentiary hearing on June 29, 2011. The Court's findings of fact and conclusions of law follow.

I. Findings of Fact

On January 27, 2010, Officer Michael Paleski of the Branford Police Department in Connecticut was contacted by Detective Lieutenant Carroll of his department regarding a motorvehicle stop of a rental car that had occurred that day in Nebraska. During that stop, the Nebraska State Patrol seized $100,000 in cash as well as apparent drug ledgers, a bill of lading and other shipping receipts, photographs of large marijuana fields, and a car rental receipt from the rental car operated by Bret Battistelli.³ At the time, Officer Paleski was on assignment with the New Haven Drug Task Force of the federal Drug Enforcement Administration ("DEA"). Lieutenant Carroll showed Officer Paleski several emails that he had received from the Nebraska State Patrol. Attached to those emails were copies of the ledgers, shipping receipts, the bill of lading, and photographs seized during the Nebraska stop.⁴ The bill of lading and the shipping receipts contained a delivery address for a number of recent deliveries to a warehouse at 4 Sycamore Way, Unit 7A, in Branford. Officer Paleski believed that, based on the information provided by the Nebraska State Patrol, the Branford warehouse may have been used as a shipping and distribution point for substantial quantities of marijuana.

The following day, January 28, 2010, Officer Paleski and Detective Paul Perrotti of the Branford Police Department began investigating the Branford warehouse, and Lieutenant Carroll initiated twenty-four hour surveillance of the warehouse. Officer Paleski also submitted an administrative subpoena for utility subscriber information for Unit 7A. The response to that subpoena revealed that "Wolfe Mikelic" from New York was the subscriber for that location.The response to that subpoena also included contact information for Mikelic, including the phone number (914) 475-2401, which matched a number found in Battistelli's cellular phone by the Nebraska State Patrol.⁵ Officer Paleski subsequently drove to the Branford warehouse. Officer Paleski observed two buildings, each with seven rental storage units of similar size. Unit 7A had front and rear bay doors, a front door, and a side door.

Officer Paleski and Lieutenant Carroll arranged for a dog and his handler from the East Haven Police Department to conduct a perimeter "sniff" search of the Branford warehouse unit on January 28. Officer Paleski and Lieutenant Carroll met East Haven Police Officer David Cari and his dog, "Daro," in the parking lot near the Branford warehouse. Officer Paleski followed Officer Cari and Daro around the perimeter of Unit 7A. Neither the officers nor the dog entered the unit; rather, they remained in public areas around the exterior of the unit throughout the perimeter search. The dog alerted to the presence of drugs three times—at the front bay door, the front door, and the rear bay door. Officer Cari indicated that given the weather conditions (cold and windy) and the dog alerting on three occasions, it was his belief that there was a significant amount of narcotics inside the storage unit.

The next day, January 29, 2010, Officer Paleski and Detective Perrotti prepared an affidavit and application for a State of Connecticut Superior Court Search and Seizure Warrant for the storage unit. While they were drafting the application for the search warrant, Detective Tobin of the Branford Police Department, who was conducting surveillance of Unit 7A, called Officer Paleski and informed him that a light-colored Mercedes with New York license plates had just arrived at the warehouse. The vehicle subsequently left the warehouse and drove acrossthe street to the parking lot where Detective Tobin was conducting surveillance. The operator—later identified as Mikelic—parked his car next to Detective Tobin's car, got out of his car, looked into Detective Tobin's vehicle, and then entered "Humphrey's," a nearby restaurant. Officer Paleski left the Branford Police Department and drove out to the parking lot. Officer Paleski then reported the license plate number to Branford Police Dispatch, and learned that the vehicle was registered to "Wolfe Mikelic."

After requesting additional surveillance of the warehouse, Officer Paleski and Detective Perrotti drove to the Connecticut Superior Court in New Haven, Connecticut, and obtained a signed search warrant for the Branford warehouse unit. The warrant was issued at 2:03 p.m. on January 29, 2010.

While Officer Paleski was obtaining the search warrant, DEA Agent Jon Rubinstein was dispatched to supervise the surveillance of the Branford warehouse. When he arrived at the warehouse, at approximately 1:00 p.m., Agent Rubinstein observed Mikelic walking around the storage unit.⁶ Shortly thereafter, a New England Land Air delivery truck pulled into 4 Sycamore Lane and parked in the rear of Unit 7A.⁷ Several large crates were unloaded from the delivery truck into Unit 7A.

After delivering the crates, the New England Land Air delivery truck left the Branford warehouse, as did Mikelic in his Mercedes; Lieutenant Carroll followed the truck and AgentRubinstein followed Mikelic.⁸ Mikelic drove to a nearby restaurant—"The Chowder Pot"—and parked his car in the restaurant parking lot. Agent Rubinstein followed Mikelic into the parking lot, parked his car near Mikelic's, and approached Mikelic's vehicle with his badge displayed and his weapon drawn. Two other officers also approached Mikelic's vehicle at that time. The officers ordered Mikelic to exit his vehicle, and Mikelic complied. Immediately upon exiting his car, the officers frisked Mikelic, handcuffed him with his hands behind his back, and placed him in the back of one of the agents' cars.

Agent Rubinstein joined Mikelic in the back of the agent's car and asked Mikelic where he came from and what was delivered to his Branford warehouse. Mikelic responded "you know where I just came from" and "you know what was delivered." Agent Rubinstein then asked Mikelic if there was anything in his car that he would be concerned about; Mikelic denied having any contraband in his car and gave Agent Rubinstein permission to search his car. Agent Rubinstein reconfirmed with Mikelic his consent for the officers to search his car. Agent Rubinstein and another officer subsequently searched the Mercedes and found a package containing heat sealed packages of cash, totaling $40,000, in the tire well of the trunk. Upon being confronted about the cash, Mikelic stated that he forgot the cash was there.

After finding the cash, Agent Rubinstein advised Mikelic of his Miranda rights, pursuant to a DEA Advice of Rights card (DEA Form 13A). A portion of that advice of rights was: "You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you beforeany questioning if you wish. Do you understand?" Upon being advised of his rights, Mikelic indicated that he understood his rights, and that he wanted to answer some questions but also stated that he also wanted to talk to his lawyer.⁹ Agent Rubinstein told Mikelic that he could speak with his lawyer and would make arrangements for him to do so, but Rubinstein did not call a lawyer for Mikelic at that time.

Agent Rubinstein also informed Mikelic that a search warrant had been obtained for his Branford warehouse unit. Mikelic responded that he had the keys to the warehouse unit and that, rather than having law enforcement officers break the door to gain entry, he preferred to give Agent Rubinstein the keys. Finally, Agent Rubinstein asked Mikelic how much marijuana the New England Land Air delivery truck had just delivered to the warehouse and Mikelic indicated that less than 200 pounds had been delivered. Mikelic was then driven to the Branford Police Department to be processed for an arrest and further interviewed.

While Mikelic was being transported back to the Branford Police Department, Officer Paleski and other law enforcement officers entered Unit 7A pursuant to the search warrant issued by the Connecticut Superior Court. The officers used the keys that Mikelic gave Agent Rubinstein to gain entry to the storage unit. The officers found and opened three wooden crates that contained heat sealed bags of marijuana and shipping papers. The officers also found a floor scale, a heat sealer, and plastic bags in a room inside the storage unit.

After being processed for his state arrest for possession of marijuana,¹⁰ Mikelic was brought to an interview room in the Branford Police Department. Officer Paleski, Detective Perrotti, and Agent Rubinstein were present. Mikelic's handcuffs had been removed, and he was seated at a table. Agent Rubinstein asked Mikelic if he needed to be advised of his Miranda rights again, but Mikelic declined, stating that he still understood his rights. The officers proceeded to question Mikelic and Agent Rubinstein asked if Mikelic would consent to law enforcement officers searching his New York residence. Mikelic stated that there was approximately $30,000 in cash and some marijuana inside his residence and consented to Agent Rubinstein's...