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United States v. Tanguay

United States District Court, D. New Hampshire

April 27, 2017

United States
v.
Eric Tanguay Opinion No. 2017 DNH 083

          ORDER

          Joseph A. DiClerico, Jr. United States District Judge

         Eric Tanguay is charged with possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Tanguay moves to suppress all evidence obtained from a vehicle that he was driving when he was arrested. The government opposes the motion.

         The court held a hearing on the motion to suppress on March 21, 2017. During the hearing, the government presented testimony from Nashua police officer Adam Rahyo, who participated in the arrest and search. The defense called no witnesses.

         Standard of Review

         The defendant bears a threshold burden to show a Fourth Amendment violation in support of a motion to suppress. United States v. Young, 835 F.3d 13, 19 (1st Cir. 2016); see also Rakas v. Illinois, 439 U.S. 128, 132 n.1 (1978) (“The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.”). The defendant's threshold burden includes the “burden of establishing that he was seized.” United States v. Fields, 823 F.3d 20, 25 (1st Cir. 2016). Once the defendant shows that a warrantless search or seizure occurred, the government bears the burden of showing that the warrantless search or seizure was nevertheless lawful. United States v. Winston, 444 F.3d 115, 123-24 (1st Cir. 2006); United States v. Acosta-Colon, 157 F.3d 9, 14 (1st Cir. 1998).

         Background

         In the early morning of March 31, 2016, Rayho, dressed in his police uniform, was on patrol in a marked police SUV. A little after midnight, Rayho drove by a strip mall parking lot and noticed a blue Ford SUV (the “Ford”) parked with two people inside. The Ford was parked 100 to 150 feet from a Taco Bell restaurant and no other vehicles were around it. Rayho returned to the lot about twenty minutes later and noticed that the Ford was still there. Rayho knew that most of the businesses located around the lot were closed but that the Taco Bell and a 24-hour gym remained open. Rayho became concerned about the Ford because it was parked alone. Based on his concern, Rayho entered the lot and approached the Ford. The time was 12:29 a.m.

         Rayho parked his car seven to ten feet behind the Ford. Rayho then turned on his rear blue strobe lights, which pointed away from the Ford. Rayho did so because the parking lot was dark and he wanted to alert any officer providing backup as to his location. Rayho also turned on his front spotlights, [1] which illuminated the interior of the Ford. Rayho testified that he turned these lights on for officer safety purposes.

         Rayho then approached the Ford on the driver's side. Using his flashlight to illuminate the Ford's interior, Rayho began a conversation with Tanguay, the driver, and Jacqueline Westley, the passenger. Rayho asked Tanguay and Westley for their names, which they gave him. Rayho recognized the name “Eric Tanguay” because a confidential informant in an unrelated investigation had told him that someone with that name was involved in using and distributing controlled narcotics. Rayho then asked Tanguay and Westley what they were doing in the parking lot. They told Rayho that they were eating food from Taco Bell. Rayho then joked with them that he also enjoyed eating food from Taco Bell. Rayho saw that both Tanguay and Westley were, in fact, eating Taco Bell food.

         Rayho asked Tanguay and Westley for identification. They responded that they did not have a driver's license with them. Tanguay also informed Rayho that he did not own the Ford. Rayho asked Tanguay if there were any weapons or drugs in the car, and Tanguay said there were not.

         Rayho asked Tanguay if it would be all right if he returned to his cruiser to run a records check on him. Rayho testified that one of the reasons he made this request was to determine if the Ford had been reported as stolen. Tanguay agreed and assured Rayho that he had a valid driver's license. As Rayho was returning to his cruiser, he noticed that Officer Jonathan Earnshaw had arrived to provide backup. Earnshaw's cruiser was parked behind Tanguay's vehicle. About a minute into the records check, Rayho observed Westley crouching down and appearing to reach under the seat. Rayho was concerned about Westley's movements. As a result, he immediately stopped the records check, exited his cruiser, and walked back to the driver's side of the Ford.

         When Rayho got to the Ford, he noticed that Westley was sitting upright in her seat. Rayho then asked Tanguay again whether he had any identification. This time, Tanguay said that his driver's license was in the trunk and asked if he could retrieve it. Rayho agreed to let Tanguay show him the location of his license but said that he would prefer to retrieve the license for officer safety reasons. Tanguay got out of the Ford, and, as he did, Rayho observed what appeared to be the butt of a pistol tucked into the driver's side door.

         Tanguay and Rayho walked to the rear of the Ford. Tanguay told Rayho that his license was in a backpack in the trunk. After the trunk was opened, Tanguay informed Rayho that his license was inside a wallet in a small pouch of the backpack. Rayho retrieved the wallet from the backpack and removed Tanguay's driver's license. Rayho noticed a large amount of currency in the wallet, which Tanguay told him totaled around $2, 000.[2] Rayho also noticed that the largest compartment of the backpack was secured with a padlock.

         While still at the rear of the Ford, Rayho asked Tanguay about the gun in the driver's side door. Tanguay told Rayho that it was a BB gun and apologized for not telling Rayho about it earlier. Tanguay also told Rayho that he had a conceal carry permit but did not have that with him.

         Rayho told Tanguay that he was going to check the gun to determine whether it was a BB gun. Before checking the gun, Rayho asked Westley to get out of the Ford, which she did. After checking the gun, Rayho concluded that it was, in fact, a BB gun. Rayho then asked Tanguay for consent to search the remainder of the Ford.[3] Tanguay responded that such a search was “fine.” During the search, Rayho, with the help of his flashlight, peered under the passenger's seat where Westley had been sitting. There he found a partially opened black sunglass case, which held a hypodermic needle. Rayho removed the sunglass case, which was already partially opened, and opened it the rest of the way. Rayho saw that the hypodermic needle was loaded and contained a brownish liquid. Based on Rayho's training, he believed that the brown liquid was either heroin or fentanyl. The sunglass case also contained a pill, a cotton ball, and a form of Narcan, which is a medication used to treat opiate overdoses.

         After discovering the sunglass case, Rayho asked Westley if she could come to the front of the Ford to speak with him. Westley agreed, and Rayho asked her what she and Tanguay had been doing that night. Initially, Westley said that she and Tanguay had the Ford all evening and were at their friend Dennis Higgins's house. When confronted with the loaded hypodermic needle, however, Westley told Rayho that her friend Danielle had borrowed the Ford while they were at Higgins's house. Westley did not provide any information about Danielle. Rayho then asked Westley again if she had a driver's license and this time she retrieved a temporary New Hampshire driver's license from her purse.

         Rayho then asked Tanguay if he could speak with him. Tanguay agreed. During their conversation, Tanguay told Rayho that he and Westley had been at Higgins's house that night but that no one had borrowed the Ford while they were there. Tanguay also told Rayho that he saw Westley with the sunglass case and that he believed that there were drugs in the case because he knew that Westley was a drug user. Rayho then arrested Westley, who was taken to the Nashua Police Department.

         Rayho and Tanguay then moved to the rear of the Ford where Rayho asked Tanguay about the lock on his backpack. Rayho observed that Tanguay appeared to become very nervous. Tanguay stared back at Rayho, as if he were trying to think of an answer. Tanguay eventually told Rayho that an “unknown individual” had placed a lock on the backpack. Rayho arrested Tanguay at approximately 12:55 a.m. for possession of drugs in a motor vehicle. Earnshaw drove Tanguay to the police station.

         Rayho tried to call the registered owner of the Ford but was unsuccessful. Because he could not locate the owner, Rayho called a tow truck to remove the Ford from the lot. Rayho removed Westley's purse, the backpack, and two cell phones in order to bring them back to the police department. Rayho also completed an inventory form documenting the items left in the Ford. During this process, Rayho completed a records check on the Ford and determined that the Ford had not been reported as being stolen. The Ford was then towed to an independent tow yard. At the police station, the purse was placed with Westley's personal property and the cell phones were placed with Tanguay's personal property. Rayho kept the backpack for safekeeping and because he wanted to ask Tanguay about it.

         At around 3:30 a.m., Tanguay agreed to a post-Miranda, unrecorded interview.[4] Rayho brought the backpack into the interview room and asked Tanguay about it. Tanguay sighed and put his hands on his head. He told Rayho that the backpack was his. He then informed Tanguay that he believed that there was something illegal in the backpack. He further elaborated that an unnamed person had put three to five illegal items in his backpack earlier and then placed the lock on it. Tanguay also asked Rayho what his bail would be if there were multiple illegal items in his backpack. Rayho responded that he did not know what the bail would be because he was not a bail commissioner.[5]

         Rayho then asked Tanguay for his consent to search the backpack. Rayho informed Tanguay that he could refuse to consent but that he believed there was probable cause for a search warrant. Rayho also informed Tanguay that because of the time he would not seek a warrant until later in the day. Rayho explained to Tanguay that if he refused to consent to the search, his bail would be set for his misdemeanor charges but other charges might follow at a later date if he found anything illegal in the backpack. Tanguay consented to a search of the backpack.

         Tanguay's consent was memorialized in a Nashua Police Department consent to search form. Rayho prepared the form by filling in the necessary information, including indicating that the item to be searched was Tanguay's backpack. After filling out the form, Rayho gave it to Tanguay to read. The form, as completed, provided that Tanguay had “been informed of [his] Constitutional Right not to have a search made of my [backpack]

         without a Search Warrant and of my right to refuse to consent to such a search.” Tanguay informed Rayho that he understood the form and had no questions. Tanguay then signed the form.

         Rayho next removed the lock with bolt cutters. Inside the main compartment Rayho found several items, including pills, which he believed were prescription medication, 49.1 grams of methamphetamine, 30.94 grams of fentanyl, drug paraphernalia, and an electric scale. Rayho also found pieces of mail that had Tanguay's name on them.

         Discussion Tanguay contends that the evidence obtained from the Ford and the backpack should be suppressed because it is the result of illegal seizures and searches. In support, Tanguay argues that Rayho stopped him without any legal basis and that the stop exceeded the scope of the Fourth Amendment's limits. Tanguay also argues that the evidence should be suppressed because the warrantless searches of the Ford and the backpack violated the Fourth Amendment.

         In response, the government argues that Rayho properly stopped Tanguay and that the search of the Ford was justified based on the consent exception to the warrant requirement. The government also contends that the search of the backpack was justified under the consent, automobile, and inevitable discovery exceptions to the warrant requirement.

         I. Seizure

         The Fourth Amendment protects “the right of people to be secure . . . against unreasonable searches and seizures.” U.S. Const. Amend. IV. The Fourth Amendment's protections against unreasonable seizures “apply not only to traditional arrests, but also to . . . brief investigatory stops generally known as Terry stops.” Fields, 823 F.3d at 25 (internal quotation marks omitted).

         For a stop to be legal, it must be objectively reasonable based on two inquiries. United States v. Arnott,758 F.3d 40, 43 (1st Cir. 2014). First, “police are not allowed to make an initial stop unless they have a reasonable, articulable suspicion about an individual's involvement in some criminal activity.” Id. Second, “[i]f the initial stop passes muster, actions undertaken during the course of the stop must be reasonably related in scope to ...


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