State v. Rosario

• Decision Date: 25 August 2022
• Docket Number: Docket: Aro-21-291
• Citation: 280 A.3d 199,2022 ME 46
• Parties: STATE of Maine v. Pedro J. ROSARIO
• Court: Maine Supreme Court

280 A.3d 199
2022 ME 46

STATE of Maine
v.
Pedro J. ROSARIO

Docket: Aro-21-291

Supreme Judicial Court of Maine.

Argued: May 10, 2022
Decided: August 25, 2022

280 A.3d 201

Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Pedro J. Rosario

Todd R. Collins, District Attorney, and Matthew A. Hunter, Asst. Dist. Atty. (orally), 8th Prosecutorial District, Houlton, for appellee State of Maine

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ., and HUMPHREY, A.R.J.^*

STANFILL, C.J.

280 A.3d 202

[¶1] Pedro J. Rosario appeals from a judgment of conviction of aggravated trafficking of scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(M) (2022), entered by the trial court (Aroostook County, Stewart, J. ) after a jury trial. Rosario argues that the court erred in denying his motion to suppress and also erred with respect to enforcement of the court's sequestration order, the jury instructions, and the sentence. We affirm.

I. BACKGROUND

¶2] Rosario was indicted for aggravated trafficking in fentanyl powder in a quantity of six grams or more. See id. On October 30, 2020, Rosario moved to suppress evidence obtained on December 18, 2019, including incriminating statements he made, after the stop of a gray Kia Sorento in which Rosario was a passenger.

[¶3] At the suppression hearing on January 11, 2021, three Maine Drug Enforcement Agency (MDEA) Agents and two Maine State Police Officers testified. As detailed below, law enforcement testified about monitored telephone calls between Rosario and a confidential informant (CI) setting up a drug transaction for December 18, 2019, in Houlton. The court admitted Maine State Police Trooper Hunter Cotton's video recording of the traffic stop of the Kia and emails from T-Mobile containing GPS data for a cell phone. In a written decision following the hearing, the court denied Rosario's motion to suppress. Rosario moved for additional and amended findings and an amended order, and the court denied his motion.

[¶4] The court held a jury trial on June 1-3, 2021. The State offered testimony from the relevant MDEA Agents, a drug chemist, and Kelvin Mosquea-Guillen. The evidence showed that while law enforcement was still with the Kia at the side of the road, law enforcement also stopped a gray Toyota driven by Mosquea-Guillen; the illegal drugs were found in the Toyota.

[¶5] Two packages were seized from Mosquea-Guillen's vehicle, though only one package, weighing approximately 111 grams and containing fentanyl powder, was admitted into evidence.¹ Mosquea-Guillen testified that Rosario had paid him to rent a car for Rosario and to drive his own vehicle to Houlton to pick up a person who would give Mosquea-Guillen money. The Kia in which Rosario was riding was searched and, although no contraband was seized from it, the search uncovered cell phones and a rental contract that the State used to connect Rosario to Mosquea-Guillen. Rosario did not testify and called no witnesses. The jury found Rosario guilty.

[¶6] The court held a sentencing hearing on August 27, 2021, and sentenced Rosario

[280 A.3d 203

to twenty-five years in prison, with ten years suspended and a four-year probationary period, and ordered him to pay a $25,000 fine.

¶7] Rosario timely appealed from the judgment.²

II. DISCUSSION

A. Motion to Suppress

[¶8] The court found the following facts, all of which are supported by competent evidence in the suppression record and which we view in the light most favorable to the suppression court's order. See State v. Cunneen , 2019 ME 44, ¶¶ 2, 13, 205 A.3d 885.

[¶9] In September 2019, a CI working with the MDEA told Agent William Campbell that a person, with a last name of Messon, had asked the CI if the CI wanted to conduct drug deals. Campbell had previously worked with the CI and found the CI reliable, and he told the CI to contact Messon. The CI and Messon had multiple calls, which the MDEA recorded, discussing the sale and pricing of illegal drugs. During one call, Messon said his brother would contact the CI, but Messon did not provide his brother's name. The CI received a call minutes later and spoke with a man, who identified himself as "Peter," about a drug transaction.

[¶10] Campbell investigated Messon and came to believe that "Peter" was Pedro Rosario.³ Campbell researched background information on Rosario and obtained Rosario's photograph.

[¶11] The CI and Peter had additional calls, which the MDEA monitored and recorded, about drug transactions. In December 2019, the CI and Peter agreed to meet, but the transaction was cancelled because Peter was unable to find a driver. Peter later found a driver, and Peter and the CI agreed to meet in Houlton on December 18, 2019, where Peter would sell drugs to the CI.

[¶12] On December 17, 2019, Campbell obtained a search warrant for GPS location data of the cell phone number Peter was using. It was MDEA Agent Forrest Dudley's role to receive the GPS location data from T-Mobile and monitor the phone's location.⁴ On December 18, 2019, the agents and officers met, reviewed investigation details, and circulated Rosario's photograph, which was seen by Trooper Cotton and MDEA Agent John Gaddis.

[280 A.3d 204

[¶13] Around 9:00 a.m. on December 18, 2019, Peter told the CI that he was on his way north in a gray Toyota. Campbell suspected that the vehicle had out-of-state license plates. Over the next few hours Dudley shared with the agents and officers the location information from the emails showing the phone traveling north.⁵ An email from T-Mobile at 1:47 p.m. indicated that the phone was in Houlton near the spot where Peter and the CI had agreed to meet. Peter then called the CI and called off the transaction because he thought he saw law enforcement near the meeting location; thereafter the emails showed the phone traveling south on I-95. The interval between emails was shortened to less than five minutes.

¶14] Minutes before 2:30 p.m., an email showed the phone was near the Island Falls exit; the data was accurate to within twenty-five meters. This location was south of Maine State Police Sergeant Chadwick Fuller, who headed south on I-95. Fuller caught up to a gray Kia sport utility vehicle, with Massachusetts license plates, that was behind a white vehicle.⁶

[¶15] Cotton was parked at an I-95 crossover and saw two vehicles pass him, followed by Fuller's vehicle. Cotton proceeded south behind Fuller to assist and told the other officers that he identified Rosario in the gray vehicle when it passed him. Based on the GPS location data and the Kia's out-of-state license plates, Fuller initiated a "felony stop" of the Kia. He did not see the Kia's occupants before the stop.

[¶16] The traffic volume on I-95 was very light at the time of the stop at 2:32 p.m. When Fuller activated his lights, the Kia stopped in the breakdown lane; the white vehicle ahead of the Kia continued south. Fuller yelled for the driver to exit the vehicle, and the driver complied and was immediately handcuffed. The passenger opened the door but appeared confused. At that point, Gaddis, who had arrived on the scene, ordered in Spanish for the passenger to exit the vehicle. Gaddis recognized the passenger as Rosario.⁷ Rosario complied with Gaddis's instructions and was immediately handcuffed.

[¶17] Based on its findings, the court concluded that when the officers stopped the Kia, they had a reasonable articulable suspicion, and indeed probable cause, to believe that it contained the person who had agreed to travel and sell drugs to the CI in Houlton and that criminal conduct had taken place or was occurring. The court further concluded that probable cause existed to arrest Rosario because a prudent and cautious person would believe that the Kia contained the phone; that the person who used the phone agreed to travel to Houlton to sell drugs; and that Pedro Rosario was the Peter who agreed to sell drugs. The court thus denied Rosario's motion to suppress.

[¶18] Rosario concedes that law enforcement had "reasonable...