United States District Court, D. New Hampshire
STEVEN J. McAULIFFE, District Judge.
Defendant, Robert Pierre, moves to suppress evidence he says was obtained during an unconstitutional search and seizure of his person and automobile. Having considered the evidence presented at a suppression hearing, the briefs filed by the parties, and the argument of counsel, the court denies the defendant's motion to suppress evidence (document no. 12).
Findings of Fact
On February 1, 2014 at approximately 12:27 a.m., New Hampshire State Police Trooper Haden Wilber stopped a 2002 Volvo S60 in the vicinity of the University of New Hampshire, near Routes 4 and 155 in Durham. The car was being operated by the defendant, Robert Pierre, and it was registered in New Hampshire.
Trooper Wilber was sitting in his cruiser, perpendicular to the road, and was "monitoring... the flow of traffic." He watched the defendant's vehicle drive by at a distance of approximately 25 feet, traveling approximately 40 miles per hour. Trooper Wilber observed that the driver's side window was darkly tinted and he could not see the driver as the vehicle passed him. He testified that the window was much darker than those on other cars he observed. Suspecting that the defendant's window tinting violated New Hampshire law, the trooper pulled out and signaled the defendant to pull over, by activating his blue lights.
Trooper Wilber testified that as he caught up with the defendant's vehicle, it swerved to the right, sped up momentarily, then stopped abruptly. As he approached the car, the defendant opened his door and explained that the driver's side window would not roll down. Trooper Wilber observed Pierre, an African-American male in his 20s, seated behind the wheel. There were no passengers. Wilber testified that he smelled the "distinct odor of fresh marijuana" coming from inside the passenger compartment of the vehicle when the defendant opened the door.
Trooper Wilber asked Pierre for his license and registration, which he provided. Upon questioning, Pierre told Trooper Wilber that he had been at Chili's in Dover and was heading to a friend's house in Durham. Pierre was not nervous when they first spoke, and his car was clean and orderly. Wilber took Pierre's identification and returned to his cruiser to run a records check. The records check disclosed that Pierre possessed a valid driver's license, the vehicle was properly registered, and there were no outstanding warrants. The records check also revealed that Pierre had previously been stopped, on August 26, 2012, and that a search conducted at that time revealed a glass jar containing marijuana and a loaded 9mm handgun in his car. Pierre was charged, on that occasion, with being a felon in possession of a firearm in the Rockingham County Superior Court, Docket No. 13-CR-00206.
Based on his having smelled fresh marijuana, and given the circumstances of Pierre's prior arrest, Trooper Wilber returned to the vehicle and ordered Pierre out of the car to conduct a brief Terry search for weapons. Pierre readily complied. Trooper Wilber did not find a weapon but felt what he believed to be a "wad" of cash in Pierre's left pocket. Wilber asked Pierre if he recently got paid from work to which Pierre answered "no." Wilber then asked Pierre how he got the cash. Pierre declined to discuss his personal life. Trooper Wilber then asked Pierre how much money he had in his pocket. Pierre first estimated that he had $1, 000.00, then clarified that he had $1, 300.00 in his pocket.
After briefly questioning Pierre, Trooper Wilber informed him that he had smelled the odor of fresh marijuana coming from inside the passenger compartment of the car when Pierre opened the door. When confronted, Pierre's demeanor changed. He became "animated and nervous, " raised his voice, clenched his fists, and avoided eye contact. Pierre stated that he did not understand what was going on, and denied Wilber's request to search his vehicle.
Suspecting the presence of illegal drugs (marijuana), and over Pierre's objection, Trooper Wilber impounded (seized) the car. Pierre was not arrested and left the scene, apparently walking to a friend's house in Durham. While waiting for a tow truck, Trooper Wilber used his flashlight to look through the passenger's side window of the vehicle, which was also darkly tinted. He saw a small piece of plastic, the corner of a larger plastic baggie, on the floorboard. Trooper Wilber believed this to be a "corner bag" commonly used to package and distribute drugs. Additionally, Trooper Wilber reported that he walked to the vehicle's trunk after Pierre left the scene and could smell the odor of fresh marijuana emanating from the trunk.
When the tow truck arrived, Trooper Wilber escorted the vehicle to the New Hampshire State Police Troop A barracks. Trooper Gary Ingham and his canine partner, Grunt, performed a drug sniff on the exterior of the vehicle at the barracks, about seven hours after the stop. Grunt alerted on the trunk of the vehicle but not on the passenger compartment. Later in the day, at approximately 5:36 p.m., a state court judge issued a warrant to search the vehicle, and, at approximately 8:24 p.m., Trooper Wilber and another trooper executed that warrant. In the passenger compartment they found a black Guess jacket on the front passenger seat. In the jacket pockets they found 7 pills in a clear bag, a second clear bag containing cocaine, a third clear plastic bag containing either methylone and/or cocaine base, and a small scale. Inside the trunk, they found a black Adidas drawstring bag and a dark North Face backpack. Inside the closed Adidas bag was a black leather Gucci handbag with a zipper. Inside the zipped-up Gucci bag, they found nearly an ounce of fresh marijuana wrapped inside three separate plastic bags, which were inside another plastic bag. They also found approximately 2.5 grams of heroin and a tan, rock-like substance that was either cocaine base or methylone. In the backpack, they found a plastic bag containing methylone and/or cocaine base, two small digital scales, one containing marijuana residue, and a white trash bag containing a Taurus.22 caliber handgun.
The defendant was charged with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); one count of possession of a controlled substance with intent to distribute cocaine, cocaine base, and heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and one count of possession with intent to distribute methylone in violation of § 841(a)(1). The defendant moved to suppress all the seized evidence as the product of an unconstitutional seizure and search. The court held a hearing on the defendant's motion on January 29, 2015, during which the court called for additional briefing. The parties filed supplemental memoranda on February 13 and 17, 2015.
The defendant challenges the legality of the initial traffic stop, his detention, the seizure of his vehicle, and the search ...