United States v. Levesque

Decision Date13 December 1985
Docket Number85-0020-04-D and 85-0020-06-D.,Crim. No. 85-00020-01-D,85-0020-02-D
PartiesUNITED STATES of America v. Jonathan S. LEVESQUE; Michael Blais; Stanley J. Fortier; Stephen C. Milton, a/k/a Steve Miller.
CourtU.S. District Court — District of New Hampshire

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Kevin E. Sharkey, Richard Johnston, Asst. U.S. Attys., Concord, N.H., for plaintiff.

Charles Flower, Jr., Manchester, N.H., for Levesque.

Jon Meyer, Manchester, N.H., for Blais.

Rodkey* Craighead, Concord, N.H., for Fortier.

John Lebrun, Concord, N.H., for Milton.

MEMORANDUM OPINION AND ORDER

DEVINE, Chief Judge.

In October 1985 defendants Jonathan Levesque, Michael Blais, Stanley Fortier, and Stephen Milton were charged in a five-count indictment for various drug violations.1 Count I charged Levesque, Blais, and Fortier with possession with intent to distribute approximately 67,000 dosage units of lysergic acid diethylamide (LSD) on December 20, 1984, in Henniker, New Hampshire, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Count II charged Levesque and Blais with possession with intent to distribute a quantity of LSD on December 27, 1984, in Londonderry, New Hampshire, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Count III charged Fortier with possession with intent to distribute a quantity of LSD on February 21, 1985, in Nashua, New Hampshire, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Count IV charged Levesque, Blais, Fortier, and Milton with conspiracy to possess with intent to distribute LSD in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. And Count V charged Blais with possession with intent to distribute approximately 30 dosage units of LSD on December 20, 1984, in Henniker, New Hampshire, in violation of 21 U.S.C. § 841(b)(1)(B).

Defendants, individually and collectively, have made a variety of motions to suppress evidence in this case, and the Court has held a suppression hearing over the course of seven days to address the issues raised by defendants. For the following reasons, the Court finds defendants' suppression arguments to be without merit and rules that all of defendants' motions to suppress must be denied. As a preliminary matter, the Court assumes without deciding for purposes of this Order that all defendants have standing to raise these suppression issues. For purposes of clarity and organization, the Court's discussion and analysis will focus on three areas: first, those motions related to the stop of defendant Fortier at the Minneapolis-St. Paul International Airport on March 18, 1984; second, those motions related to the arrest of defendants Levesque and Blais on December 20, 1984, the subsequent search of Levesque's trailer on that day, and the search of a Londonderry, New Hampshire, storage locker on December 27, 1984; and third, those motions relating to the arrest of defendant Fortier and the search of his apartment in Nashua, New Hampshire, on February 21, 1985.

1. Motions Relating to the Stop of Defendant Fortier at the Minneapolis-St. Paul International Airport on March 18, 1984.

The Court after hearing testimony from Special Agent J.J. Kramer of the Drug Enforcement Administration ("DEA") and defendant Fortier, and after reviewing exhibits entered into evidence, finds the following facts to have occurred at the Minneapolis-St. Paul International Airport on the evening of March 18, 1984.

Fortier, traveling under the name "C. Hill", boarded a Northwest Orient Airlines flight in Boston, Massachusetts, on the afternoon of March 18, 1984, destined for San Francisco, California, with stop-overs in several cities, including Minneapolis-St. Paul, Minnesota. Arriving at the Minneapolis-St. Paul International Airport at approximately 6:30 p.m., almost two hours behind schedule, the airline rescheduled Fortier for a connecting flight to San Francisco via Los Angeles to depart at 9:15 p.m.

While at the Minneapolis-St. Paul Airport awaiting this connecting flight, Fortier, in negotiating a security checkpoint, attempted to conceal a white canvas athletic bag under his jacket. The agents at the checkpoint stopped Fortier and conducted both an X-ray and a physical examination of the bag, finding therein two stacks of United States currency. Fortier explained that the money constituted his life's savings, and he was permitted to continue through the checkpoint with his bag, which he subsequently placed in a coin locker near the departure gate for his connecting flight.

The security agents at the checkpoint notified the airport police department of this incident, and Officer Merle Bossman of that department in turn contacted DEA Agent Kramer, who arrived on the scene at approximately 8:30 p.m. Agent Kramer then located Fortier in a bathroom in the Main Terminal Building and took up surveillance. According to Agent Kramer, Fortier was extremely nervous, employing the bathroom mirror to see if anyone was following him. While walking on the terminal concourse, Fortier on one occasion doubled back in his tracks, and he continually turned his head from side to side. Standing in front of arrival and departure screens at one end of the terminal, Fortier kept shifting his feet in a nervous fashion.

Returning to the departure area, Fortier retrieved his white canvas bag from the locker at approximately 9:05 p.m. and walked up to the check-in counter. At approximately 9:10 p.m. Agent Kramer and Officer Bossman approached Fortier at the ticket counter, displayed their badges, identified themselves as police officers, and asked if they could speak with him for a moment. Fortier responded affirmatively, and at Officer Bossman's suggestion followed the two officers to a portable meal container situated about ten to fifteen feet from the ticket counter. Agent Kramer then asked to see Fortier's airline ticket and some form of identification. Fortier produced his ticket coupon, but no identification. The ticket coupon indicated that it had been purchased by a Mr. "C. Hill" for $610 cash in Boston for a roundtrip flight to San Francisco, leaving on March 18, 1984, and returning on March 19, 1984. There was no baggage claim check stapled to the coupon, nor did the coupon reveal a home telephone number.

Agent Kramer again asked to see some identification, but Fortier replied that he had none. Agent Kramer then asked Fortier if he was the subject of any outstanding warrants, to which Fortier replied in the negative. Agent Kramer then requested Fortier's name, to which Fortier replied "Charles". Agent Kramer also requested Fortier's date of birth, address, social security number, telephone number, and type of employment. Fortier responded positively to these inquiries, and when asked for the name of someone who could verify his identity, he named his mother, Jeannette Stewart, living at 22 Mason Street, Nashua, New Hampshire, the same address at which he claimed to reside.

Agent Kramer returned the airline ticket to Fortier and inquired if he was carrying any contraband or currency on his person or in his baggage. Fortier replied that he was carrying money, and Agent Kramer inquired as to the amount. Fortier initially responded that it was none of Agent Kramer's business, but then added that he didn't know how much money he was carrying since it did not belong to him. Agent Kramer inquired as to whom the money belonged, to which Fortier replied, "Mike Shaw, Hooksett, New Hampshire". Fortier upon further inquiry failed to produce either a telephone number or an address for Mike Shaw. Agent Kramer inquired further as to why Fortier was carrying the money. Fortier responded that he was just a courier and that he was supposed to deliver it to someone in California, although he did not know exactly to whom. In return for this service, he claimed that he was to receive $200 plus his airfare.

At this point Agent Kramer asked if he and Officer Bossman could examine and count the money in the bag. Fortier responded that he would prefer to avoid such an examination, but that he supposed it was alright. Fortier, however, made no effort to produce the money, prompting Agent Kramer to remark that he would seize the bag, tender a receipt to Fortier, and then permit him to go on his way. Appearing anxious, Fortier expressed concern about missing his flight, but was assured by Agent Kramer that he would not be delayed in catching the flight.2 At Fortier's request, they moved several feet to another more private counter upon which Fortier placed the bag. He opened the bag and revealed a brown paper bag containing a clear plastic zip lock bag which contained United States currency ($15,000). Fortier then removed another quantity of United States currency ($1,545) wrapped in white paper. This white paper, according to Agent Kramer, revealed notations related to drug trafficking.

As Agent Kramer was in the process of filling out a receipt for the money, Fortier started to place the money back in the bag. Agent Kramer, however, informed Fortier that he was going to seize the money, give him a receipt, and allow him to go on his way. Fortier asked why the money was being seized, and Agent Kramer replied that the money appeared to be drug related. With the money and related papers in Agent Kramer's custody, Fortier produced a New Hampshire driver's license revealing his true identity and signed the receipt employing his true name, "Stanley J. Fortier". Agent Kramer explained that Fortier or the true owner of the money could retrieve the currency by contacting the United States Attorney in Minneapolis, Minnesota. Fortier then left to catch his flight to San Francisco, California.

Defendants Fortier, Levesque, and Blais have moved to suppress the evidence taken from Fortier by law enforcement personnel at the Minneapolis-St. Paul International Airport on March 18, 1984, on the ground that the evidence was seized in...

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