United States v. Robertson
| Decision Date | 08 March 2017 |
| Docket Number | No. 3:16–cr–107 (JAM),3:16–cr–107 (JAM) |
| Citation | 239 F.Supp.3d 426 |
| Court | U.S. District Court — District of Connecticut |
| Parties | UNITED STATES of America v. Ellsworth ROBERTSON, Defendant. |
John H. Durham, U.S. Attorney's Office, New Haven, CT, for United States of America.
James P. Maguire, Federal Public Defender's Office, New Haven, CT, for Defendant.
RULING GRANTING MOTION TO SUPPRESS
Defendant Ellsworth Robertson is charged with multiple drug trafficking and firearms offenses. He moves to suppress essentially all of the incriminating evidence against him, on the grounds that the police obtained this evidence in violation of his Fourth Amendment rights. I agree that the police violated Robertson's rights and that they did so in a reckless and flagrant manner that warrants invocation of the exclusionary rule. Accordingly, I will grant defendant's motion to suppress.
The charges against Robertson stem from physical evidence recovered during the course of two encounters that he had with law enforcement authorities. The first occurred late one night in November 2015 at the Mohegan Sun casino in Uncasville, Connecticut. While investigating a reported stabbing incident, a tribal police officer at the casino searched Robertson and recovered crack cocaine from a small drawstring bag that the officer found in one of Robertson's pockets.
The second encounter occurred more than six months later in mid–May 2016. By that point, Robertson was under intense investigation for narcotics trafficking by a consortium of federal, state, and local law enforcement authorities. The authorities decided to arrest Robertson late one night at his apartment in New London, Connecticut. This in turn led to a cascading series of searches and seizures of narcotics and firearms that Robertson had stored in his apartment and in a safe he had kept there.
Based on the evidence presented at the suppression hearings, I make the following factual findings about each of these two encounters:
A. Events of November 7, 2015, at the Mohegan Sun Casino
Around midnight on November 7, 2015, someone stabbed a victim with a knife at a nightclub at the Mohegan Sun casino. The casino is run by the Mohegan Tribe, and tribal police soon arrived on the scene and interviewed witnesses who described the suspect. At about 1:30 a.m., a witness pointed out a person who was sitting on a bench in the box office area of the casino as "possibly" the person responsible for the stabbing. Officers saw that the person on the bench matched the physical description of the suspect that they had received earlier. The person on the bench was Ellsworth Robertson, the defendant in this case.
Sergeant Clifford Barrows of the tribal police approached Robertson and asked to speak with him. Robertson agreed, and the two walked over to the middle of the box office's retail area. Barrows saw that a pocketknife was clipped to the right side pocket of Robertson's pants, and he seized the knife.
Sergeant Barrows and Robertson then had a conversation. Consistent with the testimony of Sergeant Barrows at the suppression hearing and as shown in video from the casino's surveillance cameras, four other officers stood nearby, a few feet behind Robertson to either side. None of the officers had their weapons drawn, and Robertson was not handcuffed.
While still standing with Sergeant Barrows, Robertson briefly took a call on his cell phone. After this phone call, Sergeant Barrows told Robertson that police were investigating a stabbing incident and asked if he was involved. Robertson denied involvement.
Sergeant Barrows told Robertson, "I want to check you for similar weapons." Robertson responded with words to the effect of "Go ahead." Doc. # 38 at 20. Sergeant Barrows then walked Robertson over to the wall, near the box office window. Robertson put his arms on the wall in order to be frisked.
Sergeant Barrows proceeded to search Robertson for more than two minutes, which included patting down his clothing as well as reaching into his pockets and removing various items. He first removed a black cloth bag that was sewn closed and had some hard objects in it. Robertson said that the bag contained religious items. Sergeant Barrows placed the bag on a nearby shelf without opening it. He then removed a number of additional items from Robertson's pockets, including a wallet, a large quantity of cash, and a cell phone. He placed each item on the shelf.
Finally—and most critically for purposes of this ruling—Sergeant Barrows removed from one of Robertson's jacket pockets another black, cloth drawstring bag. The bag was about six to eight inches long. Sergeant Barrows testified that the bag was a "pouch [that] was not drawn fully closed" and that "it could be opened or reclosed at any point." Id. at 22. The bag was neither "drawn tightly closed" nor "wide-mouth open," and it was open at the top about a "quarter inch, half inch opening, I'm going to guess." Id. at 63; see also Doc. # 39 at 48–49 (same).
Sergeant Barrows felt the outside of the bag and felt "rocks in it" and thought this was "weird." Doc. # 38 at 60. He then decided to look inside the bag without opening it:
I could see white and what appeared to be white material wrapped in plastic, like Saran wrap or a plastic bag type of material. I've commonly seen narcotics packaged that way for sale on the street.
Id. at 58–59; see also id. at 21 ().
Based allegedly on what he saw when he looked into the bag, Sergeant Barrows then "opened up the bag and it appeared to me that it was white rock-like powder." Ibid. According to Sergeant Barrows, "the appearance was what I had recognized as previously seen as narcotics packaged for street sale." Ibid.
Sergeant Barrows placed Robertson under arrest for narcotics possession. See Doc. # 23–1 at 2 (arrest report). He walked Robertson to the security office and read him his Miranda rights, and then he performed a field test on one of the baggies of white powder, which tested positive for cocaine.
During the course of Sergeant Barrows' testimony, I had doubts that he could see what he claimed he saw inside the black bag. According to Sergeant Barrows, the lighting in the box office area of the casino was no brighter and perhaps "a little bit dimmer" than the lighting in the courtroom. Doc. # 39 at 51–52. Because the Government did not produce the bag at the initial suppression hearing, I asked the Government to produce the bag for inspection at a later hearing. At this later hearing, I asked the Government's case agent to place a white Kleenex inside the bag and to hand me the bag for examination. Id. at 35–36. With the bag about a half-inch open as Sergeant Barrows had testified it was, I could barely see that there was any object at all inside the bag, much less could I visually ascertain what the object was. This examination reinforced my concern that Sergeant Barrows could not actually see what he claimed he saw before he opened the bag.
Based on my consideration of Sergeant Barrows' demeanor and the content of his testimony, as well as my own examination of the drawstring bag at the suppression hearing, I do not credit Sergeant Barrows' testimony about what he claimed to see inside the bag before he opened it. The bag was black and opaque, and very little light could penetrate the mostly closed opening of the bag. There was not enough light for Sergeant Barrows to have identified cocaine inside the bag, especially considering that for Sergeant Barrows to have seen the cocaine he would also have to have viewed it through the filter of the plastic wrapping in which it was encased. Barrows had a hunch (a correct one, as it turned out) that the bag had narcotics inside. But he did not see—and therefore did not have knowledge or probable cause to believe—that the bag contained narcotics until after he opened the drawstring of the bag and removed its contents.
I have given due regard to Sergeant Barrows' training and experience. But no amount of intuition from one's training and experience is a substitute for the basic laws of light and physics. Sergeant Barrows did not see what he claimed to see.
I further conclude that, although Sergeant Barrows initiated the search of Robertson's person to look for weapons, Sergeant Barrows did not open the bag in order to search for weapons. Sergeant Barrows opened the bag only after he allegedly saw cocaine inside, and his purpose was to recover cocaine, not to neutralize any threat from weapons.
Nor was there anything...
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