US v. LaFrance, Crim. No. 87-00081-P-01
| Decision Date | 09 December 1988 |
| Docket Number | 87-00081-P-02.,Crim. No. 87-00081-P-01 |
| Parties | UNITED STATES of America v. Michael Francis LaFRANCE and Mark Anthony Grimmel. |
| Court | U.S. District Court — District of Maine |
Nicholas M. Gess, Asst. U.S. Atty., Portland, Me., for U.S.
Richard S. Emerson, Jr., Portland, Me., for LaFrance.
Nathan Diamond, Miami, Fla., for Grimmel.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO SUPPRESS
Defendants are charged in a two-count indictment with conspiracy to possess with intent to distribute cocaine in violation of United States Code, sections 841(a)(1), 841(b)(1)(B), and 846, and with aiding and abetting the possession with intent to distribute cocaine in violation of Title 21 United States Code, sections 841(a)(1) and 841(b)(1)(B), and Title 18 United States Code, section 2. Currently before the Court is Defendants' motion to suppress certain evidence, submitted on a stipulated record supplemented by oral argument of counsel and an evidentiary hearing requested by the Court. Also before the Court is the affidavit of Kenneth G. MacMaster, Special Agent of the Maine State Police, in support of the application for a warrant to search a package sent to Frank LaFrance of Holland Street, Lewiston by M. Grimmel of Florida, via Federal Express.1
The record reflects that in October and November of 1985 the Lewiston Police Department received anonymous telephone calls stating that a Michael LaFrance of Lewiston was selling cocaine and marijuana that he received in shipments from a Mark Grimmel in Florida via Federal Express. No investigation was conducted until late March when Patrolman Avery of the Lewiston Police determined that a Michael LaFrance lived at Shawmut Street in Lewiston and had been receiving a package a week from Florida via Federal Express since November 1985. LaFrance had sent return packages to Florida in the same manner. In March or April 1986 the police had been told by Michael LaFrance's girlfriend that he had been out of the cocaine business since December 1985.
Sometime before 9:00 a.m. on June 5, 1986, Federal Express informed the Lewiston Police Department that a package originating from M. Grimmel had arrived for a Frank LaFrance of 211 Holland Street, Lewiston. As noted above, Michael LaFrance lived on Shawmut Street and police investigation had not shown previous packages sent by Grimmel of Florida to Frank LaFrance. However, according to the affidavit of Officer MacMaster, the anonymous caller had told police that sometimes LaFrance kept his cocaine at his father's house at 211 Holland Street, Lewiston and that the father knew of the son's drug dealings.
At about 9:00 a.m. on June 5, Lieutenant Saucier and Officer Avery of the Lewiston Police Department conferred and decided to seek advice from MacMaster and in the meantime to ask Federal Express to put a hold on the package. Tr. 28. Lieutenant Saucier called Special Agent MacMaster, and the two decided to find a drug-trained dog to review it. Tr. 5. By 9:20 a.m. Special Agent MacMaster located Trooper Paul Gallagher, handler of Solomon, a drug-sniffing dog, in Gray, Maine, and determined that Gallagher and Solomon were available for a sniff test. Tr. 11. Gray is a town about halfway between Portland and Lewiston. Tr. 12.
MacMaster decided to have the drug sniff take place in Lewiston because Lewiston was the package's ultimate destination and was an easier and closer place for the officers to get together to review the package. Tr. 6, 16. Officer Avery of the Lewiston Police, therefore, instructed John Attanas of Federal Express to send the package to Lewiston in the normal course and to deliver it to the police department after all of Federal Express's Lewiston delivery commitments were met. Tr. 55. The Federal Express a.m. commitment in Lewiston is for delivery by noon, Tr. 57, and the officers understood that the packages would arrive at the police department between then, Tr. 14, and 1:00 p.m. Tr. 32. Officer Avery called Trooper Gallagher and told him to be at the Lewiston Police Department at 1:00 p.m. Officer Avery, who had been at home caring for his child, arrived at the police station at 12:45 p.m. and Gallagher arrived at 1:00 p.m. After appropriate arrangements had been made for a package array, the sniff test began at approximately 1:15 p.m. By 2:15 p.m. the test was completed, Tr. 34, and Solomon had alerted on the package, indicating that he smelled drugs in it. Tr. 45-46. Thus, probable cause to search the package was established at 2:15 p.m. United States v. Race, 529 F.2d 12 (1st Cir.1976).
Defendant LaFrance testified that, based on prior experience, Tr. 69, he had expected the package to be delivered between 11:00 and 11:15 a.m. Tr. 64. When it had not arrived by 11:00 a.m., he called Defendant Grimmel in Florida, who then called Federal Express seeking to trace the package. Grimmel called LaFrance back and told him to call Federal Express as well. Tr. 65. Beginning at 11:15 or 11:30 a.m., Defendant LaFrance called Federal Express almost every half hour until between 5:00 and 6:00 p.m. Tr. 68. Around 1:00 or 1:30 p.m., he was told that Federal Express did not know where the package was, that they were looking for it, and that there had been an attempt made to deliver it. During the afternoon no one told LaFrance where the package was. After 5:00 p.m., someone from Federal Express called LaFrance, told him the package was in Augusta, and asked him to meet the truck on the turnpike. Tr. 69. Defendant LaFrance arrived at the appointed place to pick up the package and was arrested after he took possession of a dummy package containing no contraband.
Defendants argue that the seizure and detention of the package without a warrant was without reasonable suspicion or probable cause to believe that a crime was being committed and that the detention of the package for over five hours to allow Solomon to sniff it was unreasonable and in violation of Defendants' constitutional rights.
In examining the reasonableness of the seizure and detention of the package, the Court begins with the long-established premise that detention of a package in the mails on reasonable suspicion is justified when the detention infringes no significant Fourth Amendment interest. United States v. Van Leeuwen, 397 U.S. 249, 252-53, 90 S.Ct. 1029, 1032-33, 25 L.Ed.2d 282 (1970); United States v. Jacobson, 466 U.S. 109, 125, n. 28, 104 S.Ct. 1652, 1663 n. 28, 80 L.Ed.2d 85 (1984). The Court in Van Leeuwen had referred to Terry v. Ohio, 392 U.S. 1, 20-27, 88 S.Ct. 1868, 1879-83, 20 L.Ed.2d 889 (1968), the seminal stop and frisk case, and the Court of Appeals for the First Circuit has explained:
The lesson we glean from Van Leeuwen is not that the principles in Terry are irrelevant to the detention of a person's effects as opposed to the stop of his person, but that the lesser fourth amendment interest involved in the former situation will justify a somewhat more lengthy detention under the Terry rationale than in the latter case.
United States v. Regan, 687 F.2d 531, 538 (1st Cir.1982).
Id. at 706, 103 S.Ct. at 2644.2 The Court in this case must, therefore, determine if there was an articulable or reasonable suspicion that the package seized contained contraband and, if some detention is permissible on that basis, balance the extent of the intrusion on Defendant's Fourth Amendment interests against the substantial governmental interests involved in detecting drug traffickers. Id. at 703, 103 S.Ct. at 2642.
It is plain, and the Government has conceded, that it did not have probable cause to seize and search the package from Federal Express. The Court finds, however, that on the record before it there was a basis for reasonable suspicion that the package to Frank LaFrance of Holland Street contained contraband.
The police had admittedly stale information from an anonymous informant. That informant indicated that Defendant LaFrance was in the cocaine business and received shipments of the drug from Mark Grimmel in Florida. Investigation of the tip in March and April verified and updated the initial information. See United States v. Moscatiello, 771 F.2d 589, 597 (1st Cir. 1985) () ( twice on other grounds sub nom. Murray v. United States, 476 U.S. 1138, 106 S.Ct. 2241, 90 L.Ed.2d 688 (1986), and ___ U.S. ___, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)). The new information received from Federal Express in late March indicated that Defendant LaFrance had indeed been receiving packages regularly from Mark Grimmel in Florida. The information received from Defendant's girlfriend confirmed that he had been a cocaine dealer. The girlfriend's representation that LaFrance had stopped dealing in drugs was belied by the fact of his regular receipt of packages from Florida, a common method of cocaine distribution known to law enforcement personnel involved in drug investigations. See MacMaster Affidavit and Request for Search Warrant, ¶ 15. Although the relationship of LaFrance to the Holland Street address was not confirmed, that aspect was not likely to have become stale.
The police, therefore, knew when the package arrived for Frank LaFrance on Holland Street that an alleged drug dealer with the...
To continue reading
Request your trial
-
U.S. v. LaFrance, 88-2244
...had failed to minimize the intrusiveness of the detention, thus violating defendants' constitutional rights. United States v. LaFrance, 702 F.Supp. 350, 355 (D.Me.1988). The government appeals under 18 U.S.C. Sec. 3731. We reverse. II A The fourth amendment safeguards "[t]he right of the pe......
-
US v. Giannetta
...develop probable cause are unreasonable when an initial seizure has been lawfully made on a reasonable suspicion. See United States v. LaFrance, 702 F.Supp. 350 (D.Me.1988). The probation revocation context is, however, somewhat different because of the supervisory nature of the relationshi......