United States v. Chin
| Decision Date | 26 September 2013 |
| Docket Number | Case No. 5:13-cr-28 |
| Parties | UNITED STATES OF AMERICA v. DEVON CHIN |
| Court | U.S. District Court — District of Vermont |
STATEMENTS AND PHYSICAL EVIDENCE
(Doc. 15)
This matter came before the court on June 26, 2013 for an evidentiary hearing on Defendant Devon Chin's motion to suppress physical evidence and statements. (Doc. 15.) The parties completed post-hearing briefing on August 29, 2013 at which point the court took the matter under advisement.
Defendant is charged in a one count indictment with knowingly and intentionally possessing, with intent to distribute, heroin in violation of 21 U.S.C. § 841(a)(1). Defendant seeks suppression of physical evidence discovered after police seized and searched Defendant's backpack during a stop of a vehicle in which Defendant was a passenger. Defendant argues that there was no lawful basis for stopping the vehicle, no basis to extend the stop and use a drug-sniffing canine, and no probable cause to search the backpack once the drug-sniffing canine alerted to the backpack. The government opposes the motion, arguing that the vehicle was properly stopped for a motor vehicle violation, police officers did not impermissibly prolong the traffic stop, and the drug-sniffing canine's alert provided probable cause to seize the backpack and apply for a search warrant.
Defendant also seeks to suppress statements he made at the stop regarding ownership of the backpack, arguing that his statements were the result of custodial interrogation without the benefit of Miranda warnings. The government opposes the motion, arguing that Defendant was not in custody at the time he made the statements.
The government is represented by Assistant United States Attorney Michael P. Drescher. Defendant is represented by Assistant Federal Public Defender David L. McColgin.
On February 24, 2013, South Burlington Police Officer Michael DeFiore was parked in a police cruiser outside the Megabus station in Burlington, Vermont conducting surveillance. Officer DeFiore was aware that individuals bringing narcotics to Vermont from New York City often used the Megabus as a mode of transportation. At approximately 1:19 a.m., he observed Joshua Carmichael drive to the Megabus station in a silver Volkswagen GTI and pick up two individuals who had arrived on the Megabus. Officer DeFiore recognized Mr. Carmichael and his vehicle from a previous arrest for driving under the influence. During that arrest, Mr. Carmichael stated that he used heroin. Officer DeFiore was also present after Mr. Carmichael called the police to a dwelling where a friend of his had overdosed. Several days prior to the day in question, Officer DeFiore had received an email alerting him that Mr. Carmichael was currently using his silver Volkswagen Golf to provide driving services for an "unknown overweight black female" who was "bringing hundreds of bags of heroin to [Vermont] weekly" from New York City. (Doc. 24 at 1.) The email advised law enforcement to find probable cause and stop Mr. Carmichael's car whenever possible.1
After Mr. Carmichael drove away from the Megabus station, Officer DeFiore followed him in his police cruiser.2 Officer DeFiore was accompanied by an officer from the University of Vermont ("UVM") Police Services. Before stopping Mr. Carmichael'svehicle, Officer DeFiore called dispatch, asking that the Burlington police department "get their canine headn' this way it'll be Joshua Carmichael." (Doc. 22-1 at 1.) Thereafter at approximately 1:20 a.m., Officer DeFiore stopped Mr. Carmichael's vehicle on East Avenue in Burlington, purportedly because he observed a banner-type item approximately three inches in length and four inches in width hanging from Mr. Carmichael's rear view mirror.
Officer DeFiore walked up to the driver's side window and, after exchanging greetings with Mr. Carmichael, asked Mr. Carmichael if he knew why he was being pulled over. Mr. Carmichael said he did not know, but asked if the stop was due to a report of the vehicle being stolen. Officer DeFiore replied that the stop was due to "the stuff hangin' in your rear [] view mirror." Id. Mr. Carmichael responded, "Want me to take it off?" Id. Officer DeFiore said "yeah," id., although he did not cite Mr. Carmichael for the alleged motor vehicle violation. When asked where he was heading, Mr. Carmichael explained that he was "droppin' these guys off at their house." Id. at 2. Officer DeFiore asked for identification from each of the vehicle's occupants and radioed for another officer to assist in the traffic stop.
Both Defendant and the other passenger denied having any photo identification with them. Defendant stated that his name was "Eric Cooper" and gave his date of birth as "October 23, 1992." He stated that he did not have a license but had been issued a New York state I.D. The other passenger, later confirmed to be Rason Battle, stated that his name was "Chad Hollingsworth." Officer DeFiore asked Mr. Carmichael how the individual who had overdosed was doing. During this exchange, Officer DeFiore observed a small plastic bag that he suspected was a container for narcotics, as well as a vial of sterile water that he believed to be "used as a mixing agent to inject drugs." (Tr. 06/26/13 at 23.) Officer DeFiore returned to his vehicle at approximately 1:24 a.m., advising Mr. Carmichael, Defendant, and Mr. Battle to "just hang out in the car." (Doc. 22-1 at 6.)
After returning to his cruiser, Officer DeFiore informed the other officers that he suspected that the occupants of the vehicle were "carrying heavy," id., meaning he"suspected they had narcotics." (Tr. 06/26/13 at 23.) Officer DeFiore described Mr. Carmichael as a "known heroin courier [who] drives people all around, all around, all the time" and advised the officers to stop Mr. Carmichael's vehicle "anytime you see [it]." (Doc. 22-1 at 6-7.) He also informed the officers that he called in a canine unit and that he was "going to run the dog around." Id. at 6. He attempted to check the passengers' identities with dispatch, which responded that Chad Hollingsworth had a valid New York address, but Eric Cooper with a date of birth of October 23, 1992 did not appear in any New York records.
At approximately 1:27 a.m., Officer DeFiore returned to Mr. Carmichael's vehicle again and requested Mr. Carmichael's proof of insurance and registration. As Mr. Carmichael was searching for the documents, Officer DeFiore asked Mr. Carmichael about the small plastic bag and vile of water that he had observed earlier. Mr. Carmichael stated "that's just water," and Officer DeFiore responded Id. at 9. Mr. Carmichael then handed the bag and water to Officer DeFiore. Officer DeFiore asked if there were drugs in the vehicle and Mr. Carmichael responded that there were not.
At approximately 1:28 a.m., Burlington Police Corporal Trent Martin, a certified canine handler, arrived with his drug-sniffing canine Capone. Officer DeFiore instructed Mr. Carmichael to continue searching for his insurance and registration. He then approached Corporal Martin and told him that he believed there were narcotics in the vehicle, and that he was going to attempt to obtain consent for Capone to sniff inside the vehicle. After speaking with Corporal Martin, Officer DeFiore returned to the vehicle and asked Mr. Carmichael: Id. at 11. Officer DeFiore told the passengers: "You guys can stay in the car for right now." Id. Thereafter, Officer DeFiore obtained Mr. Carmichael's verbal consent to search the car.
At approximately 1:31 a.m., Officer DeFiore informed the other officers that Mr. Carmichael was going to consent to search the vehicle, and that Officer DeFiore believed there was probable cause to search the vehicle due to the bag and water he found inside.The officers agreed that Officer DeFiore would explain a written consent form to Mr. Carmichael while Corporal Martin circled the vehicle with Capone. At approximately 1:34 a.m., Corporal Martin informed Officer DeFiore that Capone alerted to the presence of narcotics. Officer DeFiore informed Mr. Carmichael of the alert and asked Mr. Carmichael to empty his pockets. He read the written consent form to Mr. Carmichael and, at approximately 1:37 a.m., Mr. Carmichael signed it.
Prior to Capone's sniff of the interior of Mr. Carmichael's vehicle, Officer DeFiore ordered the passengers to exit the vehicle. After Mr. Battle exited the vehicle, Officer DeFiore told Defendant to exit the vehicle, telling him to "relax" and "chill out," id. at 20, reportedly to "ease the tension" of the traffic stop. (Tr, 06/26/13 at 53.) As Defendant exited the vehicle, Officer DeFiore told him to take his hands out of his pockets and advised him that "[t]he dog hit on the car." (Doc. 22-1 at 21.) He asked whether there was anything in the car the officer should know about and whether Defendant was "holding anything." Id. Defendant said "nah." Id. Officer DeFiore responded: "You lying to me?" Id. To which Defendant responded "I'm sure." Id. Officer DeFiore then told Defendant he was going to pat him down for weapons and asked whether Defendant was carrying any weapons or needles. Defendant replied "no." Id. Officer DeFiore then directed Defendant to place his hands on the cruiser and patted him down. Defendant consented to Officer DeFiore reaching into his pockets and removing their contents. Officer DeFiore asked whether Defendant had any "weed" and said: "It's Vermont man and if you got weed on you, you can be real with me, I don't care." Id. 22-23. Defendant laughed in response. After the patdown, Officer DeFiore returned Defendant's personal belongings to him, including his cell phone, and stated: "Alright man, you can go hangout over there with Officer Williamson." Id. at 23. After...
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