United States District Court, D. New Hampshire
ORDER No. 2014 DNH 218.
STEVEN J. McAULIFFE, District Judge.
Defendants, Miguel Garcia, Robert Barter, and Janelle Evans move to suppress evidence they say was obtained during an unconstitutional search and seizure of their persons and an automobile belonging to Barter. Having considered the evidence presented at a suppression hearing, the briefs filed by the parties, and the argument of counsel, the defendants' motions to suppress evidence (document nos. 26, 27, & 28) are granted.
Findings of Fact
On August 13, 2013, New Hampshire State Police K-9 Trooper Brian Gacek ("Trooper Gacek") stopped Janelle Evans, Miguel Garcia, and Robert Barter, residents of Maine, at approximately 4:34 a.m. on Interstate 95 North near Greenland, New Hampshire. Trooper Gacek testified that he witnessed the vehicle commit two traffic lane violations.
Trooper Gacek had been sitting in a marked cruiser in a parking area to the immediate right of the Hampton toll plaza, which is fairly well lit. He testified that he was "bored" and "needed something to do" given the few cars on the road in the early morning hours. He noticed a car registered in Maine, with what appeared to be a driver and a male passenger in the front seat, go through the toll booth. The toll booth was some 50 to 75 yards from his position. After the car paid the toll, it passed uneventfully within 10-15 feet directly in front of Trooper Gacek's cruiser. Trooper Gacek, on a hunch,  pulled out of the parking lot and began following the car in the adjacent travel lane. He continually maintained a position in or near the car's blind spot, to the left and rear - something he testified that he does often while on patrol.
Trooper Gacek followed the car in that position for approximately 3 miles without observing anything unusual. Then, he says, the driver, Evans, drifted the vehicle slightly across the dashed white line into Trooper Gacek's travel lane, then back as the road curved. As the road straightened out again, the car's right tires drifted over the solid white fog line on the right shoulder of the road. Based on those minor traffic infractions, which Trooper Gacek said might suggest that the driver was tired or impaired, he activated his blue lights and pulled the car over. He turned on his spotlight to illuminate the area so he could better see what was in the car. When the spotlight was turned on, a second passenger sat up in the back seat.
Trooper Gacek approached the car on the passenger side. The passenger window was open. If he had not noticed before, when the car had passed within 10-15 feet of him, Trooper Gacek could then see that the driver was a Caucasian female and the passengers were Hispanic males, at least one of whom, the front seat passenger, displayed a number of tattoos.
Trooper Gacek asked the driver for her license and registration, explaining that he had pulled her over for traffic lane violations. He saw no furtive movements, saw no weapons, smelled no alcohol or marijuana, saw no drugs, and saw nothing else that would lead him to suspect that any criminal activity might be ongoing.
Evans told Gacek that she was tired. She produced her driver's license from her purse promptly and without any difficulty. Gacek observed that Evans seemed nervous and said that her outstretched arm was shaking as she reached across the passenger to hand him her license through the open window. Evans said she did not know where the registration was. The front seat passenger, Garcia, then reached into the glove compartment and handed it to Trooper Gacek, without looking at him. Garcia had not looked at Trooper Gacek since he approached the vehicle - something Trooper Gacek found odd. Trooper Gacek testified that he also thought Garcia was nervous, because, he said, Garcia's hand was shaking to the extent that the paper registration audibly fluttered. Noticing that the car was registered to a Robert Barter, not Evans, Trooper Gacek asked Garcia for his identification. Garcia handed him a Maine driver's license, his hand still shaking according to Trooper Gacek. The backseat passenger identified himself as Robert Barter, and he also produced a Maine driver's license.
Trooper Gacek asked the occupants where they had been and where they were headed. Evans told him that they had been in Dorchester, Massachusetts, visiting Garcia's aunt who was dying of cancer and that they were headed back to Bangor, Maine, to get Garcia to work by 9:00 a.m. According to Trooper Gacek, Dorchester is a "known drug area." Barter corroborated Evans' response and added that he planned to go home to Baileyville, some 2-3 hours north of Bangor, after dropping Garcia at work. He also added that the trip to Dorchester was something of a test drive after he had replaced the car's drive shaft.
Trooper Gacek took the defendants' identification and returned to his cruiser. Gacek is a trained K-9 officer, and he had his canine partner in the cruiser. The car was pulled over at 4:34 a.m. Although Trooper Gacek testified he had already decided to issue Evans a warning for the traffic violations (by 4:47 a.m.), when he returned to the cruiser he radioed Trooper Matthew Locke for back-up assistance, based, he said, on the defendants' nervous behavior and Barter's odd (at least in Trooper Gacek's mind) statement that the trip was also a test drive. He simultaneously ran records checks on Evans, Garcia, and Barter. Trooper Gacek's initial records check disclosed that the vehicle was properly registered to Barter, that Evans held a valid driver's license, and that there were no outstanding warrants for Evans, Garcia, or Barter.
Although the initial records check revealed nothing suspicious, Trooper Gacek ran additional criminal history and police intelligence checks on the defendants by phone. He learned that Garcia had been identified in several police investigations involving drugs and firearms, and may have been affiliated with the Hell's Angels gang, and that Barter's name had been mentioned in connection with several police drug investigations. Evans had no prior criminal history, and her name apparently did not appear in any police intelligence reports.
At that point, now 4:53 a.m., Trooper Locke arrived. Trooper Gacek gave Trooper Locke a brief explanation of what had transpired. He did not ask Trooper Locke to determine if Evans, or anyone else, was impaired by drugs or alcohol, though Trooper Locke was a certified drug recognition expert and that was ostensibly the primary reason Gacek summoned him. Before Trooper Gacek returned to Barter's car, he electronically issued Evans a warning, resolving the observed traffic lane violations for which he stopped the car. Approximately 19 minutes had passed since Trooper Gacek pulled the car over.
After issuing the warning, Trooper Gacek returned to the car and told Evans to get out. She complied. Trooper Gacek testified that he noticed no signs of possible impairment, and Trooper Locke, standing a few feet away where he could hear them talking, did not indicate to Trooper Gacek that he thought Evans was impaired in any way. Trooper Gacek told Evans he had given her a warning for the traffic violations, but he did not release her and the others to go about their business at that point. Instead, he again asked her where she had come from and where she was going. Evans reiterated her earlier explanation except she added that Barter was going to work in Bangor as well as Garcia. She told Trooper Gacek that Garcia was her boyfriend, that she had known Barter for only a couple of weeks, but that Garcia and Barter had known one another for years. At some point, Trooper Gacek asked Evans if there were drugs in the car. She denied that there were.
Trooper Gacek then ordered Garcia out of the car. Trooper Gacek patted Garcia down for weapons but found nothing. Trooper Gacek testified that "[e]verybody who gets out of a vehicle with my shift at night, we typically pat down." The pat-down apparently irritated Garcia, who seemingly was already upset by Gacek's attention since he was not the operator of the car, and the stop supposedly related to traffic infractions. Trooper Gacek testified that while he tried to talk with Garcia, Garcia shifted his weight from one foot to the other and turned his body on an angle in what Gacek characterized as "blading" or a "fightor-flight stance." Trooper Gacek also testified that Garcia yelled that the police had no reason to talk with him because he was not driving and had not committed any lane violations. Under questioning, Garcia confirmed that they had been in Dorchester visiting his sick aunt and denied there were illegal drugs in the car.
Trooper Gacek then directed Barter to get out of the car. Trooper Gacek patted him down as well, finding nothing. Trooper Gacek again questioned Barter about where they had come from and where they were going. Barter confirmed Evans' earlier explanation that they had been in Dorchester visiting Garcia's sick aunt and were headed to Bangor. He also reiterated that he'd recently changed the drive shaft in his car. He then said that he was going to work construction with Garcia in Bangor, a slight (by Gacek's own account), but not irreconcilable, difference from his original statement that he was going home after dropping Evans and Garcia in Bangor. When Trooper Gacek asked if he always worked with Garcia, Barter responded, "Sometimes." When Trooper Gacek pressed the point - that Bangor was a 2-3 hour drive from Barter's home, Barter did not respond. He denied having ...