United States District Court, D. New Hampshire
As Amended October 10, 2014.
For Miguel Garcia, Defendant: Jonathan R. Saxe, LEAD ATTORNEY, Federal Defender's Office, Concord, NH.
For Robert Barter, Defendant: James D. Gleason, LEAD ATTORNEY, Gleason Law Office PLLC, Henniker, NH.
For Janelle Evans, Defendant: Michael J. Iacopino, LEAD ATTORNEY, Brennan Caron Lenehan & Iacopino, Manchester, NH.
For USA, Plaintiff: Terry L. Ollila, LEAD ATTORNEY, U.S. Attorney's Office (NH), Concord, NH.
Steven J. McAuliffe, United States 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 ...