U.S. v. Trueber

Decision Date02 August 2000
Docket Number00-1710,No. 00-1016,00-1016
Citation238 F.3d 79
Parties(1st Cir. 2001) UNITED STATES, Appellant, v. JOHANNES TRUEBER, Defendant, Appellee. Heard
CourtU.S. Court of Appeals — First Circuit

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. [Hon. William G. Young, U.S. District Judge]. [Hon. Robert B. Collings, U.S. Magistrate Judge] [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Kevin P. McGrath, Assistant U.S. Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellant.

Dennis J. Kelly, by appointment of the Court, with whom David M. Losier and Burns & Levison LLP were on brief, for appellee.

Before Selya, Circuit Judge, Wallace,* Senior Circuit Judge, and Boudin, Circuit Judge.

WALLACE, Circuit Judge.

The government appeals from the district court's dismissal of the indictment against defendant Johannes Trueber based upon a violation of Trueber's Sixth Amendment right to a speedy trial. The government also appeals from the district court's previous decision to suppress statements made by Trueber during an automobile stop and during a subsequent search of his hotel room. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over these timely filed appeals pursuant to 18 U.S.C. § 3731. We reverse in part, vacate in part, and remand.

I

We rely on the testimony of United States Customs Special Agent Pugliesi, which the district court accepted as true in deciding the suppression motions. On the evening of March 20, 1999, Gabriel Lemmerer arrived at Boston's Logan Airport on a flight from Aruba. United States Customs Special Agents arrested Lemmerer after a search of his luggage revealed five kilograms of cocaine. Among the items seized from Lemmerer were a receipt from a Hampton Inn in North Andover, Massachusetts, and a note containing Trueber's name and a confirmation number.

Special Agent Lenzie was dispatched to monitor whether anyone would attempt to contact Lemmerer at the Hampton Inn. Arriving at the hotel after midnight, Lenzie learned that several individuals had called requesting to speak to Lemmerer. The next afternoon Agent Pugliesi, the lead investigator in the case, met Lenzie at the Hampton Inn. Lenzie informed Pugliesi that a man called Johannes Trueber had checked into the hotel after being dropped off by a taxi or limousine, and that a license plate search linked the vehicle to a company currently under investigation by United States Customs for drug trafficking and money laundering. Further, Lenzie informed Pugliesi that inspectors at Logan Airport had obtained Trueber's American Airlines flight itinerary, which contained a contact telephone number linked to another company under investigation for drug trafficking and money laundering. Both companies were owned by the same person and were located at the same address in Lawrence, Massachusetts.

While at the Hampton Inn, Pugliesi acquired additional information linking Trueber to Lemmerer: (1) Trueber had arrived at Logan Airport the previous day from Aruba at roughly the same time as Lemmerer (however, they were not on the same flight - Trueber stopped in Miami before flying to Boston); (2) they had traveled together from the Dominican Republic to Boston in January 1999 and from Boston to Aruba; (3) they traveled between Aruba and the Boston area again in late February or early March 1999; and (4) they stayed in the same hotel room at the Hampton Inn from March 1 to March 7, 1999.

While gathering this information, the agents set up surveillance from a hotel room across the hall from Trueber's room. The agents observed Trueber leave the hotel on three occasions to use payphones at a nearby convenience store (Seven Eleven). After observing these trips, Pugliesi, accompanied by Special Agent Colleen Forgetta, went to the hotel lobby and asked the desk clerk if he had had any contact with Trueber in the course of Trueber's coming and going. The desk clerk informed them that Trueber had asked him if the hotel sold telephone calling cards. Informing Trueber that they were sold out, the clerk directed him to the Seven Eleven. Pugliesi and Forgetta drove to the Seven Eleven, confirmed that it sold calling cards, and, on their return, observed Trueber leave the hotel and walk toward the Seven Eleven carrying a suitcase. Because Trueber had checked in with four or five pieces of luggage, Pugliesi suspected that Trueber was planning to deliver the suitcase to someone and that it contained evidence of the drug smuggling conspiracy. Accordingly, Pugliesi directed Forgetta to contact the Lawrence Police Department and request that it send a vehicle to the scene.

Trueber entered the Seven Eleven and waited near the front door. Approximately ten minutes later, a white Isuzu pickup truck drove into the Seven Eleven parking lot. Trueber left the store, placed the suitcase in the outside flatbed of the truck, and entered the passenger side. As the truck drove out of the parking lot, a Lawrence police car arrived on the scene, and Pugliesi directed the police officers to stop the truck, informing them that it might contain drugs.

The police car drove behind the truck and activated its lights. The truck pulled over immediately and the police car parked approximately five feet behind it. Pugliesi and Forgetta parked behind the police. Pugliesi and the Lawrence police officers instructed Trueber and the driver to step outside the truck. When Trueber got out, Pugliesi, who was positioned on the passenger side, was carrying his revolver at his side, pointed toward the ground. Lenzie arrived on the scene as Pugliesi instructed Trueber to step away from the truck and toward the side of the road. Pugliesi testified that he was not aware if Trueber saw his weapon and stated that "[m]y idea was not to show Trueber that I had a gun. It was just to have it for safety." Re-holstering his gun, Pugliesi asked Trueber to turn around, put his hands behind his head, and spread his legs. Pugliesi frisked Trueber for weapons, found none, and removed nothing from Trueber's person.

Pugliesi next asked Trueber to put his hands down, turn around, and face him. Pugliesi identified himself as a United States Customs official and asked Trueber for identification. Trueber produced an Austrian passport, which Lenzie inspected. Pugliesi asked Trueber when he arrived in the United States and where he was from, and Trueber responded that he had arrived the previous day, that he lived in the Dominican Republic, and that he was an Austrian national. Pugliesi asked him if he had placed anything in the truck. Trueber identified the suitcase. Pugliesi asked to take a look at the suitcase, and Trueber consented. Inside, Pugliesi discovered a green bag and a container of talcum powder. Inside the green bag was another bag containing hotel soap bars. There was nothing else inside the suitcase. Pugliesi testified that, while sounding innocuous, the objects he located did not obviate his suspicion and, in fact, heightened it. First, he had learned from experience that drug smugglers often used "scented objects such as soaps or talcs ... that give a fresh smell to conceal any scent of the drugs that might be detected by dogs." Further, he observed that the green bag was the same color and brand as one of Lemmerer's pieces of luggage seized the night before at the airport.

Pugliesi questioned Trueber why he was in the Lawrence area, and Trueber replied that he had traveled from Aruba to purchase clothing. He inquired as to Trueber's relationship with the driver of the truck, and Trueber responded that he had met the man earlier that day at a shopping mall and that he was meeting him that evening to give him his suitcase. Trueber maintained that the driver needed extra luggage. Pugliesi asked him where he had stayed the night before, to which Trueber replied that he had stayed at the driver's house in Lawrence. Pugliesi thought this inconsistency strange: how could Trueber have stayed at the driver's house the night before when he asserted to have just met him that day? When asked the name of the driver, Trueber stated it was Ramirez.

Meanwhile, the Lawrence police officers and Forgetta were interviewing the driver on the other side of the truck. The police officers had directed the driver to step out of the truck, walk backwards toward them, and either get on his knees or lie flat on his stomach. Pugliesi did not see either of the officers display their weapons. The officers then instructed the driver to stand and place his hands on the hood of the police car. After some difficulty, the officers ultimately learned that his name was Ramon Gonzalez and that he lived in Lawrence with his girlfriend at 46 Crescent Street. They retrieved from him a room key and a receipt from the Tage Inn, which had Trueber's name on it. One of the officers handed the key and the receipt to Pugliesi and informed him of the driver's name. Pugliesi realized that it was different from the name Trueber had given him.

When asked about the receipt, Trueber admitted that he had stayed at the Tage Inn the prior evening. When asked again why he had entered the truck, Trueber repeated that he had planned to have a beer with the driver and was going to give him the suitcase because the driver needed extra luggage. He also stated that he planned on leaving early the next morning on a flight to the Dominican Republic. Trueber's contradictory answers regarding the driver's name and where he had stayed the previous night heightened Pugliesi's suspicion.

The encounter with Trueber began approximately 10 p.m. on a rainy evening and lasted approximately ten to fifteen minutes. As the rain grew harder, Pugliesi asked Trueber if they could go back to his room at the Hampton Inn to continue their discussion and if he could search his luggage at the hotel. Trueber consented. Pugliesi...

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