State v. Colquhoon

CourtSuperior Court of Rhode Island
Docket NumberC.A. P1-2012-0915B
Decision Date05 August 2013
Providence County Superior Court

For Plaintiff: Jeffrey Q. Morin, Esq.

For Defendant: C. Leonard O'Brien, Esq.



The Defendant, Kevin Colquhoon, brings a motion to suppress all evidence, including his identity, seized by Pawtucket Police officers from his apartment at 361 Fountain Street Pawtucket, Rhode Island, on December 13, 2011. Mr. Colquhoon argues that the police's warrantless entry into the building and subsequent entry into his apartment violated his rights as secured by the Fourth Amendment to the United States Constitution and article I, § 6 of the Rhode Island Constitution. He contends that because no recognized exception applies to justify these illegal entries, all evidence seized as a result of the entries must be suppressed. The State of Rhode Island, by and through its Attorney General, opposes Mr. Colquhoon's motion to suppress. It argues that the police did not illegally enter any constitutionally-protected spaces at 361 Fountain Street and, even if they did, their entries were justified by several exceptions to the warrant requirement.

I Facts and Travel

The facts underlying the instant motion to suppress are as follows. On December 10, 2011, Detective Dennis Smith (Detective Smith) of the Pawtucket Police Department's narcotics unit and DEA Drug Task Force[1] became involved in an investigation after he was contacted by DEA Agent Mellitus (Agent Mellitus) regarding an upcoming shipment of narcotics to a Pawtucket address. Agent Mellitus informed Detective Smith that he had received a tip through a confidential informant that approximately 250 pounds of marijuana was being transported by a Cape Cod Express tractor-trailer truck to 367-369 Fountain Street sometime on December 13, 2011. Agent Mellitus told Detective Smith that the shipment originated in California and was addressed to a motorcycle shop at the Fountain Street address. Detective Smith knew that a motorcycle shop was formerly located at 367-369 Fountain Street. This fact was significant because based on Detective Smith's experience and training supplying a false recipient for drug shipments was common in case of interception.

Detective Smith testified that the contents of Agent Mellitus' tip and his experience investigating drug trafficking in Pawtucket led him to conclude that the actual intended recipient of the shipment was Oral Swaby. Mr. Swaby was an individual known to police as an important member of the local drug market. Detective Smith knew that Mr. Swaby had accepted packages of suspected narcotics at other locales in the past. Detective Smith testified that he had begun an investigation of Mr. Swaby prior to receiving Agent Mellitus' tip and knew that Mr. Swaby lived in the house located at 373 Fountain Street. This house was immediately adjacent to 367-369 Fountain Street. Accordingly, Detective Smith organized a covert, joint police-DEA surveillance operation to cover both 367-369 and 373 Fountain Street (collectively, the Fountain Street addresses) for December 13, 2011. He designated Mr. Swaby as the operation's principal target.

There were fifteen police and DEA officers in the December 13, 2011 operation. Detective Smith designed a deployment plan wherein several officers were stationed at fixed locations around the Fountain Street addresses. Other officers were designated for roving surveillance. Detective Smith also had access to live-streaming aerial surveillance video footage provided by a Homeland Security helicopter.

Detective Smith testified that the December 13, 2011 operation began at approximately 8:30 am, when he and several officers took up positions around the Fountain Street addresses. Detective Smith testified that the remaining officers arrived in small groups during the next two hours and took up various stationary and roving positions throughout the neighborhood. All of the officers were in position by noon. Upon his arrival, Detective Smith testified, he remained in a parked, unmarked police van with 2 other officers. The van was located in the parking lot of an antique shop approximately two city blocks to the south of 367-369 Fountain Street. Detective Scott Sullivan (Detective Sullivan) was posted to a fixed observation post in a Dunkin' Donuts parking lot immediately north of 373 Fountain Street. There was no one observing the far side or rear of the building, however.

Detective Smith testified that, although he was aided by binoculars, his view of the property was hampered by a Subway sandwich shop and a stockade fence. The fence ran across the entire south side of 367-369 Fountain Street. He could not see the front, back, or north side of 367-369 Fountain Street. Detective Smith testified that he could only see the top 2 or 3 inches of the green door located on the south side of the building at 367-369 Fountain Street. This green door led to two second-floor apartments with the address of 361 Fountain Street. At the time, Detective Smith testified, he did not know that the green door led to apartments. Detective Smith testified that because of his hampered view, he relied on the helicopter video feed and the observations of other officers to get a complete picture of the scene.

At approximately 1:20 pm, the Homeland Security helicopter spotted a Cape Cod Express tractor-trailer truck exiting I-95 and proceeding toward the Fountain Street addresses. The truck stopped in front of 367-369 Fountain Street at approximately 1:30 pm, and the driver unloaded a single wooden pallet containing four cardboard boxes wrapped in cellophane packaging and black plastic. A man, later identified as the Defendant, Kevin Colquhoon, was seen exiting the alleyway of 367-369 Fountain Street and meeting with the driver upon his arrival. After a brief conversation, Mr. Colquhoon and the driver pushed the pallet into the south side alleyway of 367-369 Fountain Street and placed it next to the green door.

Once the truck departed, Mr. Colquhoon took approximately 15 minutes to dismantle the pallet. He first removed the exterior wrapping, and then began carrying the boxes, one at a time, through the green door and into the building. Detective Smith testified that before Mr. Colquhoon finished unloading the boxes and carrying them into the building, Mr. Swaby arrived on the scene. Detective Smith testified that Mr. Swaby helped Mr. Colquhoon finish carrying the boxes into 361 Fountain Street, then threw the pallet and the discarded plastic wrapping behind the building, before following Mr. Colquhoon inside through the green door. Mr. Swaby closed the green door after he entered it, and Detective Smith testified that no one else was seen entering the green door once Mr. Swaby went inside.

Detective Smith testified that he witnessed this entire series of events on the Homeland Security helicopter's live video feed, and his observations were corroborated by eyewitness reports from several roving police units. He testified that upon the pallet's delivery at approximately 1:30 pm, he understood that the tip provided by the confidential informant to Agent Mellitus was basically accurate. This was corroborated by the pallet's delivery and Detective Smith's observations of the pallet being broken down and its boxes taken inside through the green door. Thus, Detective Smith knew at that time that the suspected marijuana was in the building, although he did not know where in the building it was located. Detective Smith testified that at that time he did not think he had sufficient probable cause to obtain a search warrant, however.

Mr. Swaby remained inside 361 Fountain Street for approximately two and one-half hours. Detective Smith testified that at approximately 3:50 pm, Mr. Swaby was seen exiting the green door and carrying a gray duffel bag.[2] Detective Smith stated that Mr. Swaby walked to 373 Fountain Street and entered the house, but remained inside for only 1 or 2 minutes before exiting out of a back door and getting into his vehicle, a gold Lincoln Navigator. Detective Smith testified that Mr. Swaby was observed carrying the gray duffel bag when he entered his Navigator. Mr. Swaby's entrance into and exit from 373 Fountain Street was witnessed by Detective Sullivan from his fixed observation location in the Dunkin' Donuts parking lot adjacent to 373 Fountain Street.

Detective Smith, along with several other police units, followed Swaby as he departed 373 Fountain Street and kept him under constant surveillance. Detective Smith testified that he witnessed Mr. Swaby drive into a parking lot located at 72 East Street—a trip covering four city blocks and taking less than 5 minutes. Within seconds of Mr. Swaby's arrival at 72 East Street, Smith witnessed a man, later identified as Justin Warner, exit a green Toyota sedan already parked there. Mr. Warner entered the passenger side of Mr. Swaby's vehicle. Mr. Warner then exited Mr. Swaby's vehicle no more than 30 seconds later, carrying the gray duffel bag that Mr. Swaby had taken from 361 Fountain Street a few minutes before. Detective Smith observed Mr. Warner place the duffel bag into the green Toyota before entering the driver's side door.

Mr Swaby and Mr. Warner then departed 72 East Street in their respective vehicles. Several police units followed Mr. Warner for a short distance after his departure before pulling him over and arresting him. Detective Smith testified that Mr. Warner's vehicle was searched and the gray duffel bag recovered. Detective Smith stated that a search of the duffel bag showed that it contained 2 to 3 pounds of a substance later identified as marijuana. Detective Smith testified that at this time ...

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