U.S. v. Gagnon

• Decision Date: 01 July 2004
• Docket Number: No. 03-1203.,03-1203.
• Citation: 373 F.3d 230
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Eric GAGNON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 230

373 F.3d 230

UNITED STATES of America, Plaintiff-Appellant, v. Eric GAGNON, Defendant-Appellee.

No. 03-1203.

United States Court of Appeals, Second Circuit.

Argued: January 21, 2004.

Decided: July 1, 2004.

William C. Pericak, Assistant United States Attorney (Carlos C. Moreno, Assistant United States Attorney, on the brief) for Glenn T. Suddaby, United States Attorney for the Northern District of New York, Syracuse, NY, for appellant.

Thomas J. O'Hem, Gerstenzang, O'Hern, Hickey & Gerstenzang, New York, NY, for appellee.

Before: KATZMANN, and B.D. PARKER, Circuit Judges, PRESKA, District Judge¹.

PRESKA, District Judge.

BACKGROUND²

On or about April 4, 2002, United States Customs Agents detained Daniel Simoneau, a Canadian driving a tractor trailer, as he attempted to enter the Port of Champlain because they had discovered 142 pounds of marijuana hidden in the trailer. (Appendix for the United States of America ("GA") 218.)³ Simoneau told Customs Agents that he was en route to deliver the trailer to Eric Gagnon, at the Fox Run restaurant and motel at Exit 21B of the New York State Thruway. (Id.) Simoneau described for the Agents the tractor trailer that Gagnon was supposed to be driving, including the fact that the trailer would bear the name "Lanfort" on its side. (Id.)

United States Customs Agent Todd Harris conveyed the information provided by Simoneau to New York State Police Sergeant Anthony Miserendino. Sergeant Miserendino passed the information along to New York State Police Trooper Roy Swan, who was responsible for patrolling the section of the New York State Thruway that includes Exit 21B. (Id.)

At approximately 7:20 p.m., Trooper Swan notified Sergeant Miserendino that the tractor trailer that Simoneau had described had just pulled into the Fox Run truck stop at Exit 21B of the New York State Thruway. (Id.) As instructed by Sergeant Miserendino, Trooper Swan maintained visual surveillance of the truck until Agent Harris and Sergeant Miserendino arrived at the truck stop. (Id.) The Fox Run truck stop has at least two buildings, one of which comprises a restaurant, a bar, and an area where billing for fuel and motel transactions are completed. The other houses the motel. (Id. at n. 2.)

Shortly after Agent Harris and Sergeant Miserendino arrived at the truck stop, they were joined by Trooper Swan, Trooper McTauge, Trooper Berrera and Trooper Monihan. (Id. at 219; see also id. at 11) (Agent Harris, Sergeant Miserendino, Trooper Swan, Trooper McTauge, and the other New York State troopers on the scene are collectively referred to hereinafter as the "Officers.") Agent Harris, Sergeant Miserendino and Trooper McTauge went inside the motel to speak to the desk clerk, who was later identified as one Sullivan. (Id. at 219.) Sullivan told the Officers that Eric Gagnon had just checked into the motel and that he was in the restaurant. (Id.)

Agent Harris, Sergeant Miserendino and Trooper McTauge conferred among themselves, and then Agent Harris telephoned the United States Attorney's Office to inquire as to what the Officers should do if the defendant refused to allow the Officers to search his tractor trailer. (Id.) According to Agent Harris, the Assistant United States Attorney with whom he spoke told him that he did not have probable cause. (Id.; see also GA 117, 135.) There is no indication in the record of what Agent Harris told the Assistant. In a footnote, the district court noted that:

Agent Harris claimed that he was told they would not have probable cause to search the tractor trailer. (Tr., p. 117). Later, he claimed that he was told they did not have the probable cause necessary to obtain a search warrant. (Tr., p. 135).

(GA 219 n. 3.)

Agent Harris, Sergeant Miserendino, and Trooper McTauge approached the defendant in the restaurant, and Sergeant Miserendino asked him if he was Eric Gagnon; the defendant confirmed that he was and produced his Canadian commercial driver's license as requested. (GA 219-220.) In response to Sergeant Miserendino's question of what he was doing at the rest stop, Gagnon said that he was resting and that he would be traveling to Albany to pick up some recyclable goods. (Id. at 220.) Sergeant Miserendino then asked Gagnon if he knew "Daniel Simoneau." (Id.; GA 168.) As will be discussed below, although the district court found "[u]pon hearing the name `Daniel,' but not together with the name `Gagnon,' Gagnon responded `Daniel Gagnon, my brother[,] I know,'" (GA 220), the transcript of the suppression hearing reflects that defendant denied knowing Simoneau. (GA 168, 186.)

When Sergeant Miserendino told Gagnon that the Officers wanted to see his tractor trailer, Agent Harris, Sergeant Miserendino, the other officers, and the defendant left the restaurant and went to the defendant's tractor trailer. (GA 220.) According to the defendant, he was not hand-cuffed or otherwise forcefully led to the tractor trailer; rather he "follow[ed]" the Officers to it. (GA 169-170.) When they arrived at the tractor trailer, two officers entered the trailer to inspect it. (GA 220.) The defendant testified that the doors were not locked, (GA 170), that one of the officers opened the right-hand door so that the Officers could enter the trailer, (id.) and that he did not mind that the Officers looked inside the trailer, (GA 188-9). Two officers climbed into the trailer and found it to be empty. (GA 220.) The defendant also testified that the Officers then "asked [him] to unlock the truck, the cab ..." and he "unlocked it and then ... opened it." (GA 171.) Sergeant Miserendino then entered the cab of the tractor trailer, and Gagnon indicated that he did not want Sergeant Miserendino in the cab because, he testified, he was afraid the officer was going to get his truck dirty. (GA 172, 220.) Sergeant Miserendino proceeded to the rear of the cab, observed a zippered blue duffle bag and grabbed it to determine if it had clothes in it because Gagnon had indicated that he was carrying clothes. (GA 221.) Upon determining that the contents were not clothes but "some sort of paper product or books or something of a hard nature," Sergeant Miserendino opened the bag and discovered approximately $305,000 in currency. (Id.) Officers seized the currency and arrested the defendant. (Id.)

PROCEDURAL BACKGROUND

As noted above, three orders of the district court form the basis for this interlocutory appeal. First, in response to defendant Gagnon's motion to suppress the $305,000 in currency seized from his truck, the district court held in the July 23 Order that probable cause to search did not exist. (GA 214-215.) The court stated:

Thus, the issue is whether probable cause to arrest defendant existed prior to the search of his truck. "Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonable trustworthy information to justify a person of reasonable caution in believing that an offense has been committed by the person to be arrested." United States v. Patrick, 899 F.2d 169, 171 (2d Cir.1990). The Government points to the seizure of 142 pounds of marijuana at the border in support of its argument. However, this seizure was related to defendant only through the information given by Simoneau. Although Simoneau described the "Lanfort" trailer his contact was to be driving and the exit at which they were supposed to meet, the law enforcement agents had no experience upon which to base the credibility of Simoneau's information. Upon arriving at the exit, the agents did observe a "Lanfort" truck. However, defendant was not at the trailer. Rather, the agents searched him out at a restaurant. Upon questioning by the agents, defendant set forth his intended itinerary and stated that he was not meeting anyone there. Moreover, defendant was not evasive or inconsistent in his answers to the agents' inquiry. Mere presence at a New York State Thruway exit with a certain type of vehicle, despite the description of the exit and vehicle by someone arrested with 142 pounds of marijuana, is insufficient to establish probable cause to arrest.

(Id.) In that same order, the court set a hearing to determine if the defendant had consented to the search. (GA 215-16.)

In the November 6 Order, the district court held that Gagnon could not have exhibited actions or speech that would have indicated consent to a reasonable officer and, in any event, that Gagnon's purported consent had not been voluntary. (GA 226-27.) In addition, the district court noted that "the seizure in this case is not saved by any other exception to the warrant requirement." (GA 227 n.13.) As to the automobile exception, the court wrote:

Likewise, the objects seized from the cab cannot be saved under the "automobile exception," which allows officers to conduct a warrantless search of containers within a car if they have probable cause to believe such containers contain contraband. Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). It has already been determined that the officers did not have probable cause to arrest Gagnon prior to the search. (See Docket No. 22, Memorandum Decision and Order granting in part and denying in part defendant's omnibus motion). In addition, the United States Attorney's Office itself told Harris that the officers did not have probable cause to search the cab without a warrant, or probable cause to get a warrant in the first place. (Tr., pp. 117-18, 136). This exception, thus, does not apply.

(GA 228 at 13.)

The Government moved for reconsideration of both orders, and the district court denied the motion in the March 11 Order. The Government filed a timely notice of interlocutory appeal.

DISCUSSION

I. Standard of Review

"On an appeal from a ruling on a motion to suppress, we review a district court's findings of historical fact for clear error, but analyze de novo the ultimate...