U.S. v. Wilson

• Decision Date: 08 December 2010
• Docket Number: No. 8:10–CR–68.,8:10–CR–68.
• Parties: UNITED STATES of Americav.Eric C. WILSON, Defendant.
• Court: U.S. District Court — Northern District of New York

754 F.Supp.2d 450

UNITED STATES of America

v.Eric C. WILSON, Defendant.

No. 8:10–CR–68.

United States District Court, N.D. New York.

Dec. 8, 2010.

United States Attorney, Plattsburgh Office, Elizabeth A. Horsman, Esq., Of Counsel, Plattsburgh, NY, for United States of America.Towne, Ryan & Partners, P.C., Michael Rhodes–Devey, Esq., Of Counsel, Albany, NY, for Defendants.

MEMORANDUM–DECISION & ORDER

DAVID N. HURD, District Judge.I. INTRODUCTION

Defendant Eric C. Wilson (“Wilson” or “defendant”) is charged in a one count indictment with possessing with the intent to distribute marijuana on January 28, 2010, in violation of Title 21, United States Code, Section 841(a)(1). Defendant has made a motion pursuant to Federal Rules of Criminal Procedure 12(b)(3)(C) to suppress the evidence seized during the search of the green Pontiac Bonneville he was driving on the above date. The United States of America (the “Government”) opposes defendant's motion.

A suppression hearing was held on September 1, 2010, in Utica, New York. After the hearing the parties were afforded time to review a transcript of the proceedings and submit their proposed findings of fact and conclusions of law. Those submissions have been received and reviewed together with the transcript. ¹

II. FINDINGS OF FACT

On January 28, 2010, at approximately 9:00 a.m., St. Regis Mohawk Police Department (“SRMPD”) Officer Virginia Johnson (“Johnson”) was observing traffic on a part of the St. Regis Mohawk Reservation (“St. Regis” reservation or territory) immediately adjacent to the United States–Canada border.² Johnson observed a white male driving a green Pontiac Bonneville heading north on River Road within the territory of the St. Regis reservation. The vehicle was driving toward an unguarded and unmarked border crossing into Quebec. Tr. 45, 46, 48. Johnson alerted the Akwesasne Mohawk Police Service (AMPS) in Quebec about the green Pontiac Bonneville that she observed enter Canada. AMPS officers located the vehicle and observed it and its white male driver exit Quebec and reenter the United States at the same location on River Road. ³ Tr. 48, 93.

During this time, SRMPD Detective–Sergeant Rourke (“Sgt. Rourke”) was in his office in Hogansburg, New York, monitoring radio traffic when he heard Johnson and AMPS report over the radio. Tr. 46. He and SRMPD Investigator Peter Barnes (“Inv. Barnes”) then left the SRMPD in Inv. Barnes's vehicle. Within minutes of receiving the information from the SRMPD and AMPS about the uninspected vehicle having exited and reentered the United States, Sgt. Rourke and Inv. Barnes located the green Pontiac Bonneville. They first observed the vehicle stopped and fueling up at Truck Stop # 9 at the intersection of Cook Road and New York State Route 37 (“Route 37”) in Hogansburg, New York. Tr. 54, 94. Truck Stop # 9 is located outside the recognized territory of the St. Regis reservation. Tr. 54, 71. It is along an approximately one and a one-half mile section of Route 37 that bisects and joins sections of the St. Regis reservation. Tr. 70. Sgt. Rourke and Inv. Barnes observed the vehicle turn onto Cook Road and then turn onto Route 37 heading west. Tr. 54, 81, 94. They followed the vehicle a short distance as it proceeded westbound on Route 37, but noted that its rear license plate was obstructed by snow and road debris. Tr. 54.⁴

At approximately 9:17 a.m. Sgt. Rourke directed Inv. Barnes, who was driving the vehicle, to pull the green Pontiac Bonneville over. They stopped the vehicle close to the intersection of Route 37 and Route 37C in the Town of Bombay, New York. Tr. 81, 95. The parties agree that the location at which the vehicle was stopped is not within the recognized territory of the St. Regis reservation. Tr. 69, 70, 72.⁵ After yielding the vehicle, Inv. Barnes got out of the police vehicle and dusted off the license plate to read it. Sgt. Rourke called the SRMPD station to report the stop and read the plate to the dispatcher. Tr. 55. Inv. Barnes approached the driver's side window and asked for identification and registration, where the driver was coming from, and what he was doing. Tr. 59, 95. At the same time, Sgt. Rourke approached the passenger's side window. Tr. 55. The driver identified himself as the defendant, Eric C. Wilson,⁶ and said he was coming from his home in St. Regis Falls, New York, ⁷ and heading to work for Phillip Tarbell. Tr. 95, 96. The defendant told Inv. Barnes that he made one stop, to get fuel at Truck Stop # 9. Inv. Barnes returned to the vehicle and advised Sgt. Rourke what the defendant had said, which they knew to be false based upon the radio observations they had previously heard from Johnson and AMPS. Tr. 59, 96, 97. A record check showed the vehicle was registered to Phillip Tarbell, who was absent from the scene and known by Sgt. Rourke and Inv. Barnes to have been arrested recently near Watertown, New York, with about 20 pounds of marijuana. Tr. 61.⁸

At or around the same time that Sgt. Rourke learned of the registered owner of the vehicle, he telephoned Immigration Customs Enforcement (“ICE”) Agent in Charge Mario Fiacco (“Fiacco”) and advised him of his intention to conduct a Title 19 customs search of the vehicle.⁹ Tr. 56. Fiacco gave permission to do the search. Tr. 57. At some point after that phone call, Sgt. Rourke approached Wilson to conduct a second interview. He asked Wilson where he was coming from and where he was headed. Defendant replied that he was coming from his home in St. Regis Falls to work and stopped to get fuel at Truck Stop # 9 with no other stops. Tr. 60. Because Sgt. Rourke knew this was false, he asked the defendant, “What if I told you that you had been to Canada?”; Wilson then admitted he had been in Quebec to see a friend. Sgt. Rourke asked if he went there to “score a little” to which defendant replied “yes” and said he went to a friend's house in Canada to obtain a small amount of marijuana before going to work. Tr. 62. Sgt. Rourke asked him if he had anything illegal on him and he admitted to possessing a marijuana pipe. Tr. 62.

At this time United States Border Patrol (“USBP”) Agents Justin Chamberlain (“Agent Chamberlain”) and David Marston (“Agent Marston”) arrived on the scene. Agent Chamberlain conducted an interview with Wilson while he was still in the vehicle. He told the Agent he had been to Canada and back, and the Agent informed him he was going to conduct a Title 19 customs search of the vehicle. Agent Chamberlain asked defendant if there was anything illegal in the vehicle or anything that he might not know of in the vehicle since it did not belong to him. Tr. 112, 113. Defendant admitted to having a marijuana pipe on him and the Agent instructed he place it on the floor of the vehicle. Tr. 113. Agent Chamberlain then told defendant he was going to conduct a search and asked him to get out of the vehicle. Tr. 113. He indicated to Inv. Barnes that defendant consented to a search of the vehicle. Tr. 98. Inv. Barnes advised Sgt. Rourke that he was going to help Agent Chamberlain search the vehicle.

Agent Chamberlain began the search at the front of the vehicle. Tr. 113. Near the completion of the search Inv. Barnes pushed the trunk release button located inside the glove compartment. Tr. 98, 113. After the trunk opened the officers observed three black duffel bags in the trunk. Tr. 113, 114. The three large hockey-type bags inside the trunk contained a green leafy substance that appeared to be marijuana. Tr. 98, 99. A field test on the substance indicated it was marijuana and a later analysis revealed the three bags contained a total of 124.544 pounds of marijuana. Tr. 99, 114. Agents Chamberlain and Marston then transported Wilson to the SRMPD.

III. CONCLUSIONS OF LAW

It is undisputed that Truck Stop # 9 and the location where Wilson's vehicle was stopped are outside the legal boundary of the St. Regis reservation. ¹⁰ It is also undisputed that the two SRMPD officers who stopped the vehicle are police officers whose authority is derived from New York Criminal Procedure Law Section 1.20(34)(u) ¹¹ and New York Indian Law Section 114. Section 114(8), titled St. Regis Mohawk tribal police, provides:

A person appointed a police officer under this section shall only be permitted to exercise the duties or functions of a police officer within the county of Franklin, and within that county, only within the boundary of the St. Regis reservation; except that such officer may follow a person for whom he or she has the authority to arrest on the reservation in continuous close pursuit, commencing on the reservation,

in and through any county of the state, and may arrest such person in any county in which the officer apprehends him or her.N.Y. Indian Law § 114(8)(McKinney 2010) (emphasis added). Therefore unless the exception in Section 114(8) applies or the SRMPD officers possessed independent authority to conduct the stop, they were without the power to seize the vehicle off of the St. Regis territory. Without such authority, the evidence seized from the green Pontiac Bonneville must be suppressed.A. Title 19

The Government maintains that the stop of Wilson's vehicle was a customs inspection under Title 19. The parties stipulated that Sgt. Rourke is one of two SRMPD officers cross-designated by ICE as a customs officer under 19 U.S.C. § 1401(i).¹² Tr. 44. ICE Special Agent Jeramy Whitling (“Agent Whitling”) testified that according to a Memorandum of Understanding between the ICE Special Agent in Charge and the SRMPD, the cross-designation of SRMPD officers as ICE agents “authorizes customs searches at the border or the functional equivalent of the border. It also delegates arrest authority without warrant for any offense against the United States and for any felony recognizable by the laws of the United States if he or she has probable cause.” Tr. 15; Gov. Ex. 9.

Sgt. Rourke's delegated authority was effective February 25,...