U.S. v. Richard, Criminal No. 2:09–992–PMD.

• Decision Date: 27 April 2011
• Docket Number: Criminal No. 2:09–992–PMD.
• Citation: 789 F.Supp.2d 645
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES of America,v.Richard NARRL a/k/a Noel H. Richard, a/k/a Richard Earl, Defendant.

789 F.Supp.2d 645

UNITED STATES of America,

v.Richard NARRL a/k/a Noel H. Richard, a/k/a Richard Earl, Defendant.

Criminal No. 2:09–992–PMD.

United States District Court,D. South Carolina,Charleston Division.

April 27, 2011.

Matthew J. Modica, U.S. Attorneys Office, Charleston, SC, for United States of America.

ORDER

PATRICK MICHAEL DUFFY, District Judge.

This matter is before the court upon Defendant Narrl Richard's ¹ (“Defendant”) motion to suppress a quantity of heroine seized by the City of North Charleston Police Department. Defendant is charged in a one count indictment for knowingly, intentionally and unlawfully possessing with intent to distribute a quantity of heroin, a Schedule I controlled substance; In violation of Title 21 United States Code sections 841(a)(1) and 841(b)(1)(C).

PROCEDURAL HISTORY

Defendant was indicted on September 8, 2009 for knowingly, intentionally and unlawfully possessing with intent to distribute a quantity of heroin, in violation of 21 U.S.C. sections 841(a)(1) and (b)(1)(C). Defendant has pled not guilty. Defendant filed a motion to suppress on February 1, 2010. In this motion to suppress, Defendant argued that the traffic stop and subsequent search of the vehicle was in violation his Fourth Amendment rights. After a hearing on the motion to suppress, the court denied the motion.

Subsequently, Defendant filed a petition under 28 U.S.C. section 2241 asserting that he should be released from custody prior to trial. In his petition, he argued that the vehicle search was invalid and all evidence recovered should be suppressed, the search warrant obtained by police for his residence was invalid due to lack of probable cause, the search warrant was otherwise defective, and the government had not obtained a court order necessary for electronic surveillance. The court dismissed his petition on March 7, 2011 because this criminal case was still pending and it “[i]t is well settled that in the absence of exceptional circumstances in criminal cases the regular judicial procedure should be followed and habeas corpus should not be granted in advance of trial.” Jones v. Perkins, 245 U.S. 390, 391–92, 38 S.Ct. 166, 62 L.Ed. 358 (1918).

Defendant, by and through his new counsel, has filed a subsequent motion to suppress challenging the government's use of a GPS tracking device as part of the investigation that led to Defendant's arrest.

FACTUAL BACKGROUND

In the spring of 2009, the narcotics unit for the North Charleston Police Department received information that Defendant was involved in the distribution of heroin. As a result, they began to do surveillance at 7898 Dove Creek Road, Apartment # 106 in North Charleston. During the surveillance, the officers observed Defendant come in and out of the apartment and get into a white 2004 Pontiac Grand Prix, bearing a Florida license tag numbered 765–IGF and registered to a Darlen Saget. Then, on May 6, 2009, Detective Jason Roy placed a GPS tracking device underneath the rear bumper of the Pontiac, while the vehicle was parked in a public place. The type of tracking device that Detective Roy employed allowed him to monitor the vehicle's movement from a laptop computer. From his laptop, Detective Roy observed that from May 6 to May 30, 2009 the car hardly moved.

Then, on May 31, 2009, at approximately 9:00 a.m., Detective Roy noticed the Pontiac was traveling through Virginia, and a review of the vehicle's travel history indicated that it had left North Charleston at approximately 1:33 a.m. and had stopped several times for a few minutes at areas next to the interstate. He continued to monitor the vehicle's movement from his laptop, and eventually, the vehicle arrived in Newark, New Jersey at approximately 2:30 p.m. Then approximately 1 hour and 20 minutes later, at 3:49 p.m., the vehicle departed New Jersey travelling on I–95 south. It travelled through Delaware, Maryland, Virginia, North Carolina, and then back into South Carolina. Again, the vehicle stopped several times for only a few minutes at locations near the interstate. The vehicle entered South Carolina on I–95 at approximately 2:30 a.m. on June 1, and it merged onto I–26 towards Charleston at 4:30 a.m.

Based on the travel route of the vehicle, officers set up surveillance along I–26, and as the vehicle approached the Ashley Phosphate Road exit, it moved into the exit lane without signaling. Detective Dan Bailey and Detective Matt Hughes then initiated a traffic stop on the exit ramp. Detective Bailey approached the passenger side of the vehicle and observed the passenger, later identified as the Defendant, to be very nervous. He was sweating and his arms and legs were shaking. Detective Bailey asked Defendant if he was okay, and he indicated he was. When Defendant was asked for identification and his name, Defendant allegedly turned to the officer, opened his mouth and acted as if he were speaking, but nothing came out. Finally, Detective Bailey asked Defendant for his date of birth and his age, and the Defendant responded that he was 27 years old and was born in 1976. Based upon the information about the vehicle's route of travel, Defendant's nervous behavior, and the incorrect information he provided about his age and birth year, the officers asked Defendant to step out of the vehicle. The driver of the vehicle, Katia Coney, was also asked to step out of the vehicle.

While out of the vehicle, Defendant told the officers that he and his girlfriend were returning from a weekend trip to New Jersey and that they had been there for two days. Ms. Coney, however, told the officers that they had only stayed in New Jersey for about an hour, which was consistent with the movement of the vehicle traced by the GPS device. Also while both occupants were out of the vehicle, Canine Officer Anthony Daniele, who was already at the scene, deployed his canine dog to conduct a perimeter sniff of the vehicle for the odor of illegal narcotics. The drug dog positively alerted to the exterior driver's side door, the center console, and to the rear passenger floorboards.

By this time, Detective Daniel Prichard arrived at the scene, and he was advised of the drug dog's positive alert on the vehicle, as well as the conflicting stories given by Ms. Coney and Defendant. Detective Prichard then searched the passenger compartment of the vehicle, and he observed that the passenger's side rocker panel was loose. As a result, he pulled it out, reached under the carpet and padding, and removed five glassine bags with a light brown powder held together with rubber bands. The substance field-tested positive for heroin, and Defendant and Ms. Coney were arrested for possession with the intent to distribute heroin and for possession with intent to distribute heroin within 1/2 mile of a school or park.

The officers then obtained a search warrant to search the vehicle, and during the search, the officers found a false compartment under the center console, which was operated by a hydraulic piston. In the center console, the officers found a Haitian passport, which was issued to the name Narrl Joseph Richard and had Defendant's picture on it, a plastic bag containing 1,000 glassine bags containing a light brown powder, which field-tested positive for heroin, as well as other items. The officers then obtained and executed a search warrant at Apartment # 106 located at 7898 Dove Creek Road in North Charleston, and inside one of the bedrooms, the officers found documents bearing the name of Narrl Richard and Darlen Saget.

ANALYSIS

Defendant argues that the use of the mobile tracking device constituted an unreasonable search in violation of his Fourth Amendment rights. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) is the starting point, in determining whether the government's actions have violated a person's Fourth Amendment rights. In that case, the Court held that wiretapping of a public telephone in a phone booth “constituted a ‘search and seizure’ within the meaning of the Fourth Amendment,” because a person would justifiably believe that they were having a private conversation in that situation. Id. at 351–353, 88 S.Ct. 507. (rejecting the argument that a “search” can occur only when there has been a “physical intrusion” into a “constitutionally protected area,” and noting that the Fourth Amendment “protects people, not places”). Consistent with the holding in Katz, the Court has “uniformly [ ] held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

Working within this Fourth Amendment framework, the Court addressed the issue of tracking devices in United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In that case, law enforcement began visual surveillance of Tristan Armstrong because Hawkins Chemical Company claimed Armstrong had begun buying suspicious amounts of chemicals, similar to those he was accused of stealing from 3M while working there. Id. at 278, 103 S.Ct. 1081. After some visual surveillance, law enforcement noticed that after purchasing the chemicals, Armstrong delivered them to Darryl Petschen. Id. Based on this information, officers obtained consent of Hawkins Chemical Company to place a tracking device in a five gallon container of chloroform. Id. Officers did not obtain a warrant authorizing the use of...