United States v. Whitlock

UNITED STATES OF AMERICA v. JAVON WHITLOCK, Defendant.

Case No. 2:20-cr-00017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

April 16, 2021

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS

(Doc. 26)

Pending before the court is Defendant Javon Whitlock's motion to suppress evidence obtained as a result of a March 30, 2019 warrantless, non-consensual search of a vehicle rented in Defendant's name. (Doc. 26.) Defendant argues that the search violated the Fourth Amendment to the United States Constitution because law enforcement lacked probable cause to search the vehicle. He further contends law enforcement did not have reason to believe that evidence of crimes for which his passengers were arrested would be found in a vehicle he rented and operated. On February 12, 2021, the government opposed Defendant's motion and Defendant replied on March 18, 2021. On March 19, 2021, the court held an evidentiary hearing, at which time the court took the pending motion under advisement.

Defendant is charged in a one-count Indictment with possession with intent to distribute 28 grams or more of cocaine base, a Schedule II controlled substance, and heroin, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B); 18 U.S.C. § 2.

The government is represented by Assistant United States Attorney Nathanael T. Burris. Defendant is represented by Jared L. Olanoff, Esq., and Paul S. Volk, Esq.

I. Findings of Fact.

The parties agree that there is no material dispute as to the facts which are derived from the parties' briefs and police cruiser camera footage.

On March 21, 2019, a Drug Enforcement Administration ("DEA") investigation into drug trafficking between Massachusetts and Vermont resulted in an indictment charging Sir Michael James and Stephany Guerrero-Rodriguez with conspiracy to distribute heroin, cocaine base, and cocaine in February, 2019. A federal magistrate judge issued arrest warrants for Mr. James and Ms. Guerrero-Rodriguez. On March 26, 2019, the DEA obtained a search warrant for location data associated with a cellular phone number used by Mr. James.

On March 30, 2019, law enforcement, who were monitoring Mr. James's cell phone location data, observed that the phone was traveling north on I-91 near the Vermont-Massachusetts border. DEA Special Agent Timothy Hoffmann ("SA Hoffmann") contacted Vermont State Police ("VSP") Sergeant Richard Slusser to assist with the execution of the federal arrest warrants and requested that he stop the vehicle, which SA Hoffmann believed contained Mr. James and possibly Ms. Guerrero-Rodriguez. He also provided a description of Mr. James.

At 5:29 p.m., SA Hoffmann observed a black Nissan Sentra (the "Sentra") pass Exit 2 northbound on Interstate 89 in Vermont. Location data indicated that Mr. James's cellular phone was in the same area. SA Hoffmann relayed his observation to Sergeant Slusser, and at 5:37 p.m., Sergeant Slusser observed the Sentra pass the area of Exit 3 northbound on Interstate 89 with three occupants. He stopped the vehicle in the area of Mile Marker 27. Sergeant Slusser identified the driver as Defendant, and confirmed that Defendant had rented the Sentra in Massachusetts. The front passenger was identified as Mr. James and the rear passenger was identified as Ms. Guerrero-Rodriguez.

Sergeant Slusser told Defendant that he stopped him for going six miles per hour over the speed limit but that it was "not enough to write you a ticket for." (Doc. 29-4 at 1:44.) He asked for Defendant's license and registration. As he reviewed this documentation, he advised that he smelled "a little weed" and asked if the occupants had been smoking to which they replied that they had not. Id. at 2:24. Sergeant Slusser asked why he could smell weed if they had not been smoking and asked the occupants howmuch marijuana they had to which Mr. James replied that he had seven grams. Sergeant Slusser told Mr. James that possession of marijuana was "decriminalized in the state" and that it was "not an arrestable offense," id. at 2:44, but that it had to be secured properly and that if he could smell it, it was probably not secured properly. Sergeant Slusser asked Mr. James to exit the vehicle, stating that he would need to see how much marijuana he had, but that he could lawfully possess up to an ounce. Sergeant Slusser asked Mr. James what pocket the marijuana was in. Mr. James replied that it was not in his pocket but was in the vehicle. Sergeant Slusser then placed Mr. James in handcuffs.

SA Hoffmann, a federal DEA agent, arrived on the scene and approached the Sentra, aiming a rifle at the front driver's side window. Mr. James, still in handcuffs, was placed in Corporal Mark Busier's police cruiser. Law enforcement officers removed Defendant and Ms. Guerrero-Rodriguez from the vehicle, handcuffed them both, and placed them in separate police cruisers. SA Hoffmann began searching the interior and trunk of the Sentra. He did not ask for consent before doing so. However, the search began only after Sergeant Slusser stated that he smelled marijuana and Mr. James admitted that he possessed it and that it was in the vehicle.

While SA Hoffmann searched the trunk of the vehicle, he stated that there was "weed in the car," to which Sergeant Slusser responded "we're not going to do anything with it." Id. at 8:16. Sergeant Slusser then showed SA Hoffmann Defendant's driver's license and SA Hoffmann stated, "I don't have anything on him." Id. at 8:40. SA Hoffmann informed Sergeant Slusser that he was "just going to toss this car real quick, see if we got anything in here." Id. at 9:09.

SA Hoffmann, Sergeant Slusser, and DEA Agent Brandon Hope searched the Sentra's trunk and interior for approximately seven minutes. Thereafter, SA Hoffmann read Mr. James his Miranda rights and Mr. James waived his rights and agreed to speak with SA Hoffmann. Mr. James stated that "the package" was near the Sentra's center console. Agent Hope subsequently removed a plastic panel under the Sentra's dashboard and below its stick shift and found approximately 221 grams of cocaine base and 2,100 bags of heroin contained in several socks, as well as 17.2 grams of marijuana.

Defendant was placed under arrest and transported to the VSP barracks where he spoke to SA Hoffmann and Special Agent Adam Chetwynd and gave consent to search his cellular phone.

II. Conclusions of Law and Analysis.

A. Whether Law Enforcement Unlawfully Seized Defendant.

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" absent "probable cause, supported by oath or affirmation[.]" U.S. CONST. amend. IV. "Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of [the Fourth Amendment]." Whren v. United States, 517 U.S. 806, 809-10 (1996). "[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution." Illinois v. Caballes, 543 U.S. 405, 407 (2005). "'[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause.'" United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). "In evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria." United States v. Sharpe, 470 U.S. 675, 685 (1985).

Defendant contends that he was unlawfully seized when he was removed from his vehicle, placed in handcuffs, and detained in a police cruiser because law enforcement did not have an arrest warrant for him and Sergeant Slusser informed Defendant that he did not intend to write him a ticket. He argues that the officers therefore "had no justifiable grounds to prolong the stop by seizing and detaining" him. (Doc. 26 at 4.)

"[P]assengers and drivers have no Fourth Amendment interest in not being ordered out of [a] stopped vehicle[,]" Mollica v. Volker, 229 F.3d 366, 369 (2d Cir. 2000), because "an order to exit a vehicle during a lawful stop amounts only to a de minimis intrusion on [a defendant's] liberty." United States v. Weaver, 975 F.3d 94, 101(2d Cir. 2020). However, "[o]nce the purpose of an ordinary traffic stop is completed, the officer may not further detain the vehicle or its occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention." United States v. Perez, 440 F.3d 363, 370 (6th Cir. 2006) (internal quotation marks and citation omitted). Defendant's detention was thus lawful only if there was a constitutional justification for it beyond the initial traffic violation. See Florida v. Royer, 460 U.S. 491, 500 (1983) (holding that "an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop"). The government offers two bases for Defendant's continued detention and the search of the Sentra. First, it argues that because law enforcement had arrest warrants for Defendant's passengers, the search of the Sentra was a search incident to their arrest and Defendant was properly detained while that search was underway. Second, the government argues that pursuant to the automobile exception, the smell of marijuana provided probable cause to search the vehicle and detain Defendant during its search.

B. Whether the Search of the Sentra was a Search Incident to Arrest.

"Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few...