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U.S. v. DEMOSTHENE

June 3, 2004.

UNITED STATES OF AMERICA, -against- JEAN DEMOSTHENE, Defendant


The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

Defendant Jean Demosthene ("Demosthene") was charged in a two-count superceding indictment with possession of more than 500 grams of cocaine with intent to distribute, and with conspiracy to distribute more than 500 grams of cocaine. Trial on this matter has been scheduled to commence on June 14, 2004. The parties have filed several pre-trial motions in limine seeking to admit or exclude certain evidence at trial. The Court considers each of the motions below.*fn1

I. BACKGROUND

  On October 26, 2003, Demosthene was a passenger in a vehicle traveling toward New Jersey through the Lincoln Tunnel. The vehicle, which was rented, was involved in a traffic accident. When police officers discovered that the license of the individual driving the vehicle was suspended and that Demosthene was not listed on the rental-car agreement, the police impounded the vehicle and subsequently discovered 600 grams of cocaine in the trunk. The driver of the vehicle is now a cooperating witness ("CC-1"). In statements to the police shortly after his arrest, Demosthene claimed that he was unaware that there were any narcotics in the trunk.

  The following day, a trained canine working with a Port Authority police officer (the "PA canine") searched the vehicle in which Demosthene was a passenger at the time of his arrest. The PA canine alerted to the odor of controlled substances in certain parts of the vehicle. Demosthene was ultimately charged in a two-count superceding indictment with possession with intent to distribute over 500 grams of cocaine on October 26, 2003; and with participation in a conspiracy to distribute narcotics between March 2003 and October 26, 2003.

  Some of the evidence at issue in the pending motions before the Court relates to an incident that occurred on July 12, 2003 outside the residence of Demosthene's mother in Pleasantville, New Jersey (the "residence"). On that day, police officers were called to the residence and found a pool of blood in the roadway. Eyewitnesses informed the police officers that Demosthene was shot after a fight between Demosthene and several other males outside the residence.

  Although the various eyewitness accounts differ to some degree, the police reports of these accounts describe that two males arrived at the residence in bicycles allegedly looking to start a fight with one of Demosthene's relatives. When Demosthene emerged, a fight ensued between Demosthene and the two males, and possibly others. The two males ran away, but returned about 20 minutes later in a car driven by a third male. According to statements made to the police by Demosthene's family members, one of the males struck Demosthene's vehicle, which was parked in the driveway, leaving a dent. After Demosthene pushed the male away from the vehicle, the altercation escalated into an all-out brawl involving several individuals. During the fracas, Demosthene was shot several times and was left lying on the street outside the residence. Family members took Demosthene to a hospital where he eventually recovered from his gunshot wounds.

  As part of their investigation of the crime scene, the police officers noticed a Mercedes-Benz parked in the driveway of the residence, which they later came to learn belonged to Demosthene. The Government contends that when the officers looked inside the vehicle, they observed a plastic bag containing a large amount of cash lying on the front seat.*fn2 The police later determined that the bag contained $5,000 in denominations of one hundred, fifty, twenty, and ten dollar bills. Demosthene has submitted a sworn affidavit that on July 12, 2003, the plastic bag containing the money was not in plain view in the front seat, but rather, was inside a closed console and was therefore not visible.

  The Pleasantville police officers called a trained narcotics canine (the "Pleasantville canine") to the scene, together with his handler, to assist with the search of both the general area of the shooting and Demosthene's vehicle. According to the police report, the Pleasantville canine initially alerted to the odor of narcotics inside the vehicle from the outside. Thereafter, the Pleasantville canine handler permitted the Pleasantville canine to search the interior of the vehicle, where the canine further alerted to the odor of controlled substances inside vehicle and in particular, in the locked glove compartment; and on the cash found inside the vehicle.

  The Pleasantville police took Demosthene's vehicle to the police precinct, where they obtained consent to search the vehicle from Demosthene's wife, Nadia Francois ("Francois"), later that day. The officers, however, were unable to open the vehicle's locked glove compartment. On July 14, 2004, the officers obtained a search warrant for the vehicle from a New Jersey State judge and thereafter had the glove compartment forcibly opened. At this point, the Pleasantville canine again alerted to the odor of controlled substances in the glove compartment. The police did not find any narcotics in the vehicle.

  II. THE PARTIES' MOTIONS IN LIMINE

 A. DOG SNIFF EVIDENCE

  The Government has filed a motion in limine to admit the evidence of the dog sniff from both the PA canine and the Pleasantville canine.*fn3 Demosthene opposes the Government's motion. For the reasons discussed below, the Court grants the Government's motion.

  Demosthene argues that the dog sniff evidence should be excluded on four grounds: (1) dog sniff evidence is generally unreliable; (2) the dog sniff evidence has little probative value that is outweighed by its risk of prejudice; (3) the July 12 and 14 2003 dog sniffs should be excluded as "other acts" evidence with regard to count two of the superceding indictment, which charges Demosthene with possession with intent to distribute narcotics on October 26, 2003; and (4) the July 12 and 14 dog sniff alerts violated his rights under the Fourth Amendment to the United States Constitution against unlawful searches and seizures. In the alternative, Demosthene requests a hearing on this issue. The Court considers each of these arguments in turn.

  Demosthene, relying almost exclusively on precedent that is not binding on this Court, argues that many courts have excluded dog sniff evidence because it is inherently unreliable as an indicator as to the presence of narcotics. While the Court acknowledges that there has been some difference of opinion on this point among some courts in other districts, the Second Circuit and district courts in this circuit have admitted evidence of a dog sniff alert. See, e.g., United States v. Marji, 158 F.3d 60, 62-63 (2d Cir. 1998) (stating that dog sniff evidence is admissible, although it should not be given "special weight" if it is uncorroborated); United States v. Perez, No. 01 Cr. 0848, slip op. at 2-3 (S.D.N.Y. Oct. 16, 2002) (noting that courts in this circuit have admitted dog sniff evidence provided that ยง 3500 materials regarding the dog's handler and training are ...


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