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United States v. Rivera

United States District Court, E.D. New York

February 5, 2015

UNITED STATES OF AMERICA,
v.
PAUL RIVERA, MICHAEL GARRETT, Defendants

Decided: February 4, 2015.

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For Paul Rivera, also known as Paul Zance, also known as Paulee Zance, also known as Paulie Rivera, also known as Edgar Rivera, also known as Zance Rivera, also known as Steven Rivera, Defendant: David Stern, LEAD ATTORNEY, Rothman, Schneider, Soloway & Stern, P.C., New York, NY; Guy Oksenhendler, LEAD ATTORNEY, Law Offices of Guy Okenhendler, New York, NY; Martin G. Goldberg, LEAD ATTORNEY, Martin G. Goldberg, Franklin Square, NY.

For Michael Garrett, also known as Rab, Defendant: Kelley J. Sharkey, LEAD ATTORNEY, Attorney at Law, Brooklyn, NY; Peter E. Quijano, LEAD ATTORNEY, New York, NY; Robert H. Parker, LEAD ATTORNEY, Law Office of Robert H. Parker, Brooklyn, NY.

For USA, Plaintiff: Alixandra Eleis Smith, LEAD ATTORNEY, United States Attorney's Office, Brooklyn, NY; Taryn A. Merkl, LEAD ATTORNEY, United States Attorneys Office, Eastern District of New York, Brooklyn, NY.

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MEMORANDUM AND ORDER

KIYO A. MATSUMOTO, United States District Judge.

In a third Superseding Indictment, defendants Michael Garrett (" Mr. Garrett" )

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and Paul Rivera (" Mr. Rivera" ) (collectively, " defendants" ) are charged with racketeering (Count I), racketeering conspiracy (Count II), interstate prostitution (Count III), conspiracy to engage in sex trafficking and sex trafficking of children (Count IV), sex trafficking and sex trafficking of children (Count V), conspiracy to distribute and possess with intent to distribute heroin, cocaine base, cocaine and marijuana (Count VI), possession with intent to distribute heroin and cocaine (Count VII), conspiracy to commit murder in-aid-of racketeering (Count IX), murder in-aid-of racketeering (Count X), murder while engaged in a narcotics trafficking offense (Count XI), using, carrying and possessing a firearm (Count XIV), and causing death through use of a firearm (Count XV). (Superseding Indictment (S-3) (" Indictment" ), ECF No. 94.) Mr. Garrett also is charged with money laundering (Count VIII), and Mr. Rivera is charged with witness tampering (Count XII) and attempted obstruction of justice (Count XIII). ( Id.)

These charges arise from the defendants' alleged involvement in a group known as " Together Forever" or " TF Mafia" that operated in the neighborhood of Brownsville in Brooklyn, New York as well as in Scranton, Pennsylvania. ( Id. at 2.) The indictment alleges that defendants were both leaders of TF Mafia. ( Id.)

After Mr. Rivera was stopped on January 18, 2012 by the Pennsylvania State Police (" PSP" ) and a police search of the vehicle yielded quantities of cocaine and heroin ( see Gov.'s Memo. of Law in Resp. to Defs. Paul Rivera and Michael Garrett's Mots. to Suppress and Garrett's Initial Pre-Trial Mots. (" Opp." ) filed 7/8/14, ECF No. 117, at 3-4; Compl. filed 2/5/13, ECF No. 1), Mr. Rivera was charged with several felony violations of Pennsylvania law and was incarcerated in Pennsylvania pending trial. (Opp. at 4.) The defendants thereafter came to the attention of the Federal Bureau of Investigation (" FBI" ). (Opp. at 3.) On February 5, 2013, the Honorable Ramon E. Reyes, Jr., United States Magistrate Judge for the Eastern District of New York, issued an arrest warrant for Mr. Rivera based on a complaint charging him with conspiracy to distribute one or more controlled substances in violation of 21 U.S.C. § 846. (Compl.) Mr. Rivera was subsequently removed to federal custody. On March 11, 2013, a federal grand jury returned an indictment charging Mr. Rivera with conspiring to distribute one or more controlled substances in violation of 21 U.S.C. § 846. (Indictment as to Paul Rivera filed 3/11/2013, ECF No. 11.)

On June 24, 2013, defendants were charged together in a superseding indictment alleging a conspiracy to distribute one or more controlled substances and possession of cocaine and heroin with the intent to distribute. (Superseding Indictment filed 6/24/13, ECF No. 31.) On October 7, 2013, the grand jury returned a second superseding indictment that brought numerous charges against defendants, including racketeering conspiracy and racketeering, with specified predicate acts of narcotics trafficking, sex trafficking, money laundering, witness tampering, and murder. (Superseding Indictment (S-2) filed 10/7/13, ECF No. 62.) On April 28, 2014, the grand jury returned the current third superseding indictment (S-3).

Presently before the court are the following pre-trial motions filed by defendants.

Mr. Garrett's Motions

Mr. Garrett moves to (a) suppress physical evidence recovered from a September 1, 2010 car stop, (b) suppress Mr. Garrett's post-arrest statements after his arrest in this case on June 12, 2013, (c) direct the to government disclose all evidence favorable

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to Mr. Garrett pursuant to Brady v. Maryland 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), (d) direct the government to disclose any prior bad acts or criminal convictions that the government intends to use at trial pursuant to Federal Rule of Evidence 404(b), (e) grant Mr. Garrett's request for a bill of particulars, (f) permit Mr. Garrett to bring further motions upon the basis of any newly discovered information, and (g) permit Mr. Garrett to join in the motions of his co-defendant as appropriate. (Memo. of Law in Support of Def.'s Pretrial Mots. (" Garrett Mots." ) filed 6/9/14, ECF No. 110.)

Mr. Rivera's Motions

Mr. Rivera moves to (a) suppress physical evidence recovered pursuant to a search of a vehicle search on January 18, 2012, and (b) suppress Mr. Rivera's statements made to the government during a proffer session dated August 30, 2012. (Rivera Mots. filed 6/10/14, ECF No. 113.)

DISCUSSION

I. Mr. Garrett's Motions

A. Motion to Suppress Physical Evidence from Mr. Garrett's September 1, 2010 Car Stop and Arrest

Mr. Garrett moves to suppress evidence seized from his car when he was stopped on September 1, 2010 by a New Jersey State Police (" NJSP" ) trooper for alleged traffic violations on the grounds that the stop was without probable cause, and the search that yielded the contraband was unlawful, because it was conducted without Mr. Garrett's consent and without probable cause. ( See Garrett Mots. at 1-2.) The government argues that the stop of Mr. Garrett's vehicle was based on probable cause, because Mr. Garrett violated New Jersey traffic laws, the subsequent search of a package found in the trunk of the Garrett Vehicle was lawful, because Mr. Garrett lacked standing to challenge it, the search was supported by probable cause, and the contraband inevitably would have been discovered. ( See Opp. at 46-51.)

On September 8, 2014, September 9, 2014, and October 29, 2014, the court held an evidentiary hearing addressing Mr. Garrett's and Mr. Rivera's motions to suppress evidence. Regarding Mr. Garrett's September 1, 2010 car stop, the government presented Todd Unangst[1] (" Mr. Unangst" ), the tow truck operator who towed Garrett's car, NJSP Trooper Rivas (" Trooper Rivas" ), who initiated the September 1, 2010 car stop, NJSP Detective Shotwell (" Detective Shotwell" ), who assisted with the investigation, and NJSP Detective Torre (" Detective Torre" ), who conducted an inventory search of Mr. Garrett's car. Mr. Garrett did not present any witnesses and relied upon affirmations submitted in connection with his motion papers. ( See Garrett Affirm. filed with Garrett Mots., ECF No. 110, at 3; Garrett Affirm. filed with Garrett Reply, ECF No. 123-1.) Mr. Garrett and the government filed post-hearing submissions with the court. ( See Garrett's Post-Hr'g Memo. in Supp. of Garrett's Mot. to Suppress (" Garrett Post-Hr'g Memo." ), ECF No. 147; Gov.'s Proposed Finding of Facts and Conclusions of Law following the Suppression

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Hr'g (" Gov. Post-Hr'g Memo." ), ECF No. 148.)

1. Factual Findings

During the evidentiary hearing, the witnesses for the government presented a credible and largely consistent account of Mr. Garrett's car stop on September 1, 2010.

a. Testimony from the Government Witnesses

According to Trooper Rivas[2], whose testimony the court found credible, on September 1, 2010, he was on duty and assigned to the night shift at the NJSP station in Hope, New Jersey (" Hope Police Station" ), which is located off of Exit 12 on Interstate 80 (" I-80" ). (T1[3] at 144-45). At approximately 10:30 p.m.[4], Trooper Rivas was patrolling I-80 when he observed a black Mercedes with New York license plate EML 4151 (the " Garrett Vehicle" ) traveling westbound in the left lane on I-80. ( Id. at 145-48.) Trooper Rivas observed that the Garrett Vehicle was having difficulty maintaining its position driving in the left lane. ( Id. at 146.) He then saw the Garrett Vehicle change from the left lane to the center lane without signaling. ( Id.)

Trooper Rivas testified that failing to maintain a lane and changing lanes without using a directional signal are violations of New Jersey state law and that, based on his observations of the traffic violations, he determined that he would stop the Garrett Vehicle. ( Id. at 148, 155.) Trooper Rivas testified that he then turned on the lights on his police car and pulled the Garrett Vehicle over to the side of the road. ( Id. at 221-22; see also Gov. Ex. DD[5] at 22:30:22-22:30:51.) Trooper Rivas proceeded to have a conversation with Mr. Garrett, the driver and sole occupant of the Garrett Vehicle. (T1 at 157-58). Trooper Rivas testified that he asked Mr. Garrett where he was going, to which Mr. Garrett responded that he was going to the Mohegan Sun casino to attend an event. ( Id.) Trooper Rivas told Mr. Garrett that he was stopped because Mr. Garrett

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was having trouble maintaining his lane and switched lanes without using his directional signal. ( Id.; see also Gov. Ex. DD at 22:31:30-22:34:15.) Trooper Rivas testified that Mr. Garrett was " very apologetic" and stated that there were problems with the air pressure in his tires which caused his vehicle to swerve. The MVR footage corroborates Trooper Rivas's testimony regarding Mr. Garrett's admission to swerving. (T1 at 159; see also Gov. Ex. DD at 22:31:30-22:34:15.)

Trooper Rivas testified that he then advised Mr. Garrett that he was going to check his license and registration for traffic violations and asked if Mr. Garrett had any recent traffic violations. (T1 at 159-60; see also Gov. Ex. DD at 22:34:30-22:35:15.) Mr. Garrett responded that he had been stopped a few times in the past and had received a few traffic tickets, but that he should be in good standing. ( Id.)

Trooper Rivas testified that after returning to his police vehicle and running Mr. Garrett's license and registration, he learned that Mr. Garrett's license had been suspended and that Mr. Garrett was not permitted to drive. (T1 at 160-61.) Trooper Rivas also learned that there was a traffic warrant for Mr. Garrett's arrest in Knowlton Township, New Jersey. ( Id.) Trooper Rivas testified that because Mr. Garrett was a suspended driver, Mr. Garrett was not permitted to operate a motor vehicle. ( Id.) Trooper Rivas testified that in light of the fact that Mr. Garrett was a suspended driver and had a warrant for his arrest, he decided to place Mr. Garrett under arrest and to impound the vehicle. ( Id.) In light of Mr. Garrett's arrest, Trooper Rivas decided to have the Garrett Vehicle towed by a tow operator under contract with the NJSP to the operator's private tow yard and impounded. ( Id. at 161-62.)

While Trooper Rivas was gathering additional information from Mr. Garrett, NJSP Trooper Rachel Trent (" Trooper Trent" ) arrived on the scene. (T1 at 164; Gov. Ex. DD at 22:42:50.) Trooper Rivas testified that he placed Mr. Garrett under arrest and transported him back to the NJSP Hope Station while Trooper Trent waited with the Garrett Vehicle until the tow truck operator arrived. (T1 at 164.) While Trooper Rivas was driving to the station with Mr. Garrett from the scene of the stop, Mr. Garrett advised that he needed his three cell phones from the center console of his vehicle. ( Id. at 171-72.) Trooper Rivas placed a radio call to Trooper Trent requesting Mr. Garrett's phones, and she retrieved the three phones accordingly. ( Id.)

At the station, Trooper Rivas required Mr. Garrett to remove his shoes and belt pursuant to NJSP operating procedures, before placing Mr. Garrett into a holding cell. (T1 164-65.) Trooper Rivas testified that he observed a partially smoked marijuana blunt in Mr. Garrett's left shoe. ( Id.) After discovering the blunt, Trooper Rivas testified that he read Mr. Garrett his Miranda rights.[6] ( Id. at 236.) Trooper Rivas also testified that Mr. Garrett stated he understood the Miranda warnings, but that Mr. Garrett refused to sign a card indicating that he had been read his warnings. ( Id. at 215-16.) Trooper Rivas testified that, after being advised of his rights, Mr. Garrett did not affirmatively

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invoke his right to remain silent or his right to an attorney. ( Id. at 217, 228.)

Meanwhile, at the scene of the car stop, a tow operator, Mr. Unangst, reported to the scene. (T1 at 116-17.) Mr. Unangst testified at the evidentiary hearing that he responded to a request by the NJSP to tow the Garrett Vehicle back to Mr. Unangst's impound lot. ( Id.) Mr. Unangst testified that when he arrived on the scene, the Garrett Vehicle was on the side of the road with a police vehicle parked behind it. ( Id. at 117-18.) Mr. Unangst also testified that a female police officer[7] was present in her police vehicle when he arrived. ( Id. at 118.) Mr. Unangst testified that he positioned the tow truck in front of the Garrett Vehicle in order to prepare to pull the Garrett Vehicle onto the deck of the tow truck. ( Id. at 119-20.)

Mr. Unangst testified that with " higher-end" cars like the Mr. Garrett's Mercedes, equipment called a " tow loop" is used to tow the vehicle without damaging the suspension or the frame of the vehicle. (T1 at 120.) The tow loop screws into the front bumper, and the tow hook from the tow truck attaches to the tow loop instead of the front bumper itself. ( Id.) Mr. Unangst testified that in the course of his work as a tow truck operator, Mr. Unangst routinely used tow loops to tow high-end vehicles, which he understands to be the common practice among tow truck companies generally. ( Id. at 128.)

As was his common practice, Mr. Unangst used a key to open the trunk and retrieve the tow loop from the Garrett Vehicle. (T1 at 129-30.) Mr. Unangst testified that he did not recall exactly how he obtained the keys for the Garrett Vehicle, but he believed that either Trooper Trent handed him the keys for the Garrett Vehicle or the keys were left for him in or near the Garrett Vehicle. ( Id. at 129, 140.) Mr. Unangst testified that the NJSP did not direct him to open the trunk of the Garrett Vehicle. ( Id. at 120, 128.)

Mr. Unangst testified that when he opened the trunk of the Garrett Vehicle, he noticed that it smelled like marijuana. (T1 121-22.) Mr. Unangst then lifted the floor mat of the trunk to search for the tow loop in the spare tire and tools chamber. ( Id. at 122.) After lifting up the floor mat, Mr. Unangst saw a bag that was approximately ten to twelve inches in length. ( Id.) Mr. Unangst testified that he thought the package contained marijuana. ( Id. at 123.) Mr. Unangst then motioned to Trooper Trent to approach the trunk. ( Id.) Mr. Unangst testified that when Trooper Trent saw the package, she advised Mr. Unangst that he would have to tow the Garrett Vehicle back to the state police barracks rather than to his impound lot as originally planned. ( Id.) According to the CAD Report, Trooper Trent then notified the NJSP control center and the Hope Police Station that she was in custody of " CDS" (a term for " controlled dangerous substance" ) and would be returning to the station. (Gov. Ex. SH-3500-AR-25.) Accordingly, Mr. Unangst then towed the Garrett Vehicle back to the NJSP barracks. (T1 at 123.)

Trooper Rivas testified that Trooper Trent informed him about the discovery of the bag and brought a " clear vacuum sealed bag with a black bag inside of it" to Trooper Rivas at the station. (T1 at 165.) Trooper Rivas then showed Mr. Garrett the package that had been recovered from the Garrett vehicle. ( Id. at 168.) Trooper

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Rivas testified that Mr. Garrett appeared " taken aback" and " in shock, wide eyed" upon being shown the package. ( Id.) Trooper Rivas testified that when he asked Mr. Garrett about the package, Mr. Garrett denied that the package belonged to him. ( Id.) Trooper Rivas credibly testified that he then asked Mr. Garrett for his consent to search the package, and Mr. Garrett denied consent. ( Id.)

Trooper Rivas testified that he then conducted additional investigation of Mr. Garrett's criminal history which revealed " a significant criminal history" that included narcotics and violence. (T1 at 169.) Trooper Rivas credibly testified that based on the totality of the circumstances, he reached a belief that the package found in the Garrett Vehicle contained " a CDS, Controlled Dangerous Substance, some kind of drug." ( Id. at 169.)

Detective Shotwell[8] testified that he received a call on September 1, 2010 from the Hope Police Station that provided an overview of the events of the evening involving Mr. Garrett and was instructed to go to the Hope Police Station to assist with the investigation. (T1 at 242-43.) When Detective Shotwell arrived at the Hope Police Station, he spoke to Trooper Rivas about the case and reviewed Mr. Garrett's criminal history report, which included narcotics trafficking. ( Id. at 243.) Detective Shotwell also testified that he noticed that Mr. Garrett possessed multiple prepaid cell phones, which he found to be indicative of criminal activity based on his training and experience. ( Id. at 243-44.)

Detective Shotwell testified that he examined the vacuum-sealed package that had been recovered from the trunk of the Garrett Vehicle. (T1 at 244.) He noted that the clear vacuum-sealed package contained another dark-colored plastic bag within. ( Id. at 244-45.) Detective Shotwell testified that he found the package to be suspicious, because vacuum-sealing sucks air out of a package and is used to mask the smell of the contents of the package. ( Id. at 245.) Detective Shotwell also noted that the package did not appear to have been from the car manufacturer. ( Id.)

Detective Shotwell testified that when he picked up the package, he could feel that the package contained several small-sized " bundles" within the dark plastic bag. (T1 at 245-46.) Detective Shotwell believed, based on his experience and the totality of the circumstances and the way the package and bundles looked and felt, that the smaller bundles inside the package contained narcotics. Detective Shotwell testified that, in the course of his career as a law enforcement officer, he had previously seen narcotics similarly packaged in a number of smaller bags, although not in the specific manner presented. ( Id. at 246.)

Thereafter, Detective Shotwell testified that he discussed whether he should open the bag with his supervisor, Sergeant Walsh. (T1 at 246-47). They both agreed that the package should be opened for further investigation. ( Id.)

Detective Shotwell opened the bag and testified that his first impression was an

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overwhelming vinegar odor. (T1 at 247.) Detective Shotwell observed five smaller clear bags that each contained a number of multi-colored balloons. (T1 at 247-48; Gov. Ex. R-3.[9]) In each clear plastic bag was a yellow piece of paper with the number " 10" written on it. (T1 at 248; Gov. Ex. R-5.) Detective Shotwell testified that he opened up one of the balloons and found a dark-colored powder inside that he believed to be heroin. (T1 at 248; Gov. Ex. R-6.) Trooper Rivas testified that a field test conducted on the powder found in the balloon tested positive for heroin. (T1 at 171.)

Trooper Rivas also testified that the morning after he opened the package, he called a K-9 unit to perform an exterior sniff of the vehicle, and the canine alerted to the trunk of the vehicle. (T1 at 177-78.) Trooper Rivas testified that he then applied for a search warrant for the Garrett Vehicle, which was approved by Warren County Superior Court Judge John J. Coyle. ( Id. at 178-79; Gov. Ex. C.[10]) Trooper Rivas testified that when he opened the trunk of the Garrett Vehicle for the search pursuant to the warrant, he noticed an odor of marijuana. (T1 at 182-83.) The search yielded a clear plastic bag containing marijuana found in a black duffel bag in the trunk of the car and a digital camera, among other items. ( Id. at 179-84.)

Mr. Garrett was ultimately issued three citations as a result of the September 1, 2010 car stop which included: driving with a suspended license; careless driving; and operating a motor vehicle while in possession of CDS. (T1 at 163-64; 172-73.) On October 31, 2011, Mr. Garrett pleaded guilty to the tickets for careless driving and driving with a suspended license, as well as to a charge of possession of marijuana. (Gov. Ex. S.[11]) When Mr. Garrett's attorney in the Pennsylvania proceeding asked Mr. Garrett during his allocution, whether he was " changing lanes haphazardly without signaling," Mr. Garrett responded, under oath, that he was. (Gov. Ex. S at 10:42-43.)

b. Testimony from Mr. Garrett's Affirmations

In his affirmations filed on June 9, 2014 and July 29, 2014, Mr. Garrett stated that (1) prior to his September 1, 2010 stop, he did not make an illegal lane change and did not fail to signal; (2) he did not consent to any search of his vehicle and its contents; and (3) he " did not deny knowledge of the package in the trunk." (Garrett Affirm. filed with Garrett Mots. at 3; Garrett Affirm. filed with Garrett Reply, ECF No. 123-1.)

2. Application and Conclusions

Mr. Garrett seeks to suppress the physical evidence recovered from the Garrett Vehicle on the grounds that Trooper Rivas did not have probable cause to stop the Garrett Vehicle and that the bag found in the trunk of the Garrett Vehicle was illegally seized and searched. For the reasons set forth below, the court denies Mr. Garrett's motion, finding that the NJSP officers had probable cause for each of the actions they took over the course of the

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investigation which yielded the contraband in the trunk of the Garrett Vehicle.

a. Trooper Rivas's Testimony Was Credible

As an initial matter, Mr. Garrett's affirmations challenge two factual claims made by Trooper Rivas: (1) that Trooper Rivas observed Mr. Garrett changing lanes without signaling and failing to maintain the lane and (2) that Mr. Garrett told Trooper Rivas that the package found in the trunk of the Garrett Vehicle did not belong to him. In both cases, the court finds Trooper Rivas's testimony to be credible.

The court finds that Trooper Rivas was a truthful and reliable witness. The only inconsistency that Mr. Garrett has identified was the 16-minute discrepancy as to when the car stop began. Not only did Trooper Rivas provide a credible explanation for the discrepancy, but this inconsistency is, at best, minor, and does not cast doubt on Trooper Rivas's testimony or candor.

In contrast, the court declines to give significant weight to Mr. Garrett's affirmations. Because Mr. Garrett exercised his right not to testify, his testimony by affirmation was not subject to cross-examination. See, e.g., United States v. Walia, No. 14-cr-213 (MKB), 2014 WL 3563426, at *13 n.8 (E.D.N.Y. July 18, 2014) (" As a general matter, credible testimony at a hearing is entitled to more weight than an affidavit, because testimony has been subjected to cross-examination." (quoting United States v. Medina, 19 F.Supp.3d 518, 2014 WL 1918633, at *12 n.13 (S.D.N.Y. 2014)(collecting cases))); DiMattina v. United States, 949 F.Supp.2d 387, 2013 WL 2632570, at *22 (E.D.N.Y. 2013) (" Without the threat of cross-examination, [the defendant's] affidavits are viewed as self-serving and given little weight." )

With respect to Mr. Garrett's claim that he " did not make an illegal lane change, nor did [he] neglect to signal as the law requires," the court also considers that the MVR footage showed Mr. Garrett acknowledging and apologizing for his difficulty with maintaining his lane, and offering problems with the air pressure in his tires as an explanation. (Gov. Ex. DD.) Moreover, Mr. Garrett pleaded guilty under oath to committing careless driving by making a lane change without using his turn signal before his vehicle was stopped. (Gov. Ex. S.) The court also notes that Mr. Garrett failed to claim in his initial pre-trial motion that he did not make an illegal lane change, and only presented this assertion by affirmation in his reply, which further casts doubt on Mr. Garrett's denial that he did not make an illegal lane change. Thus, the court finds Officer Rivas's testimony that he observed Mr. Garrett making an illegal lane change and failing to maintain his lane to be entirely credible and finds Mr. Garrett's statements to be inconsistent and unbelievable.[12]

The court also finds credible Trooper Rivas's testimony that Mr. Garrett advised Trooper Rivas that the package did not belong to Mr. Garrett. In Mr. Garrett's affirmation filed with his reply, Mr. Garrett avers that he never denied " knowledge

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of that package in the trunk." (Garrett Affirm. filed with Garrett Reply, ECF No. 123-1.) The court does not find Mr. Garrett's testimony by affirmation and Trooper Rivas's testimony at the evidentiary hearing to be inconsistent. The court makes the factual finding that Mr. Garrett had knowledge of the vacuum-sealed package in the trunk, but also denied that the package belonged to him. In his reply, Mr. Garrett " disputes the prosecution's representation that he made a statement denying the bag was his." (Garrett Reply, ECF No. 123, at 1.) To the extent that Mr. Garrett disputes Trooper Rivas's claim that Mr. Garrett denied ownership of the package, the court declines to credit Mr. Garrett's claim. Mr. Garrett has failed to present any evidence, in his affirmations or otherwise, that he ever disclaimed ownership of the vacuum-sealed package.

b. Trooper Rivas Had Probable Cause to Stop the Garrett Vehicle

The Fourth Amendment protects the " right of the people to be secure in their persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. This protection extends to vehicle stops. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). " [T]he Fourth Amendment requires that an officer making a traffic stop have probable cause or reasonable suspicion that the person stopped has committed a traffic violation or is otherwise engaged in or about to be engaged in criminal activity." United States v. Harrison, 606 F.3d 42, 45 (2d Cir. 2010) (citation and internal quotation marks omitted). As set forth above, the court finds that Trooper Rivas's observation of the Garrett Vehicle engaging in an illegal lane change and failing to maintain his lane established that Trooper Rivas had probable cause to believe that Mr. Garrett committed violations of New Jersey traffic laws. Thus, the stop of the Garrett Vehicle on September 1, 2010 was reasonable, based on probable cause, and proper under the United States Constitution.

c. The Package Was Found in Plain View and Its Seizure Was Lawful

A warrantless search and seizure is " per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well--delineated exceptions." United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir. 1999) (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)) (internal citations and quotation marks omitted). The " plain view" exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize an object " if its incriminating character is immediately apparent, and if the officer[] ha[s] a lawful right of access to the object." Kiyuyung, 171 F.3d at 83 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)).

The first issue is whether Trooper Trent and Mr. Unangst had a lawful right to observe the package in plain view as the Garrett Vehicle was being prepared by Mr. Unangst to be towed. The court finds that the NJSP decision to tow the Garrett Vehicle and remove it from the highway was reasonable to safeguard Mr. Garrett's property and to ensure the safety of the public, given that Mr. Garrett's license was suspended and he could not drive legally, and that there was an outstanding warrant for his arrest. Thereafter, in an effort to protect Mr. Garrett's property, a high-end Mercedes vehicle, Mr. Unangst, the private tow truck operator, acted according to industry practice by opening the trunk in order to locate the tow hooks, and then discovered the package in question and

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brought it to the attention of Trooper Trent. The evidence establishes that the NJSP and Mr. Unangst acted lawfully and reasonably to protect the public and Mr. Garrett's property, and had every right to view the seized package. See Cady v. Dombrowski, 413 U.S. 433, 443, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (affirming warrantless search of vehicle, which, " for elemental reasons of safety," was towed after an accident); Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) (upholding search where " discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody" ).

The second issue is whether the " incriminating character" of the package found in the Garrett Vehicle was " immediately apparent." The Supreme Court has articulated this standard as whether the police have " probable cause to believe that an object in plain view is contraband without conducting some further search of the object." Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Mr. Garrett argues that because the drugs were not visible in the bag " by sight or shape," the incriminating character of " the bag's contents" was not immediately apparent. (Garrett Post-Hr'g Mot. at 3.)(emphasis added). The court disagrees. The law does not require that narcotics be plainly observable in order to justify the seizure of a package under the plain view doctrine. See Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (holding that the police properly seized green balloon from defendant's automobile, because officer was aware that balloons tied in the manner of the one possessed by the defendant were frequently used to carry narcotics, noting that " the opaque fabric of the balloon is all but irrelevant" ); United States v. Lopez-Salcedo, No. 11 Cr. 482 (LMM), 2011 WL 5838283 (S.D.N.Y. Nov. 18, 2011) (upholding officer's seizure based on officer's immediate recognition that package contained drugs). In United States v. Barrios-Moriera, the Second Circuit held that a law enforcement agent had probable cause to seize a package that he believed contained cocaine, because " the rectangular package, measuring a certain size, wrapped in duct tape, spoke volumes as to its contents, particularly to an experienced DEA agent." 872 F.2d 12, 17 (2d Cir. 1989), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), and cert. denied, 493 U.S. 952, 110 S.Ct. 361, 107 L.Ed.2d 348 (1989)) (internal quotations omitted).

Here, the court finds that the incriminating character of the vacuum-sealed package found in the trunk of the Garrett Vehicle was immediately apparent based on its shape and the manner in which it was packaged. The uncontroverted evidence establishes that Mr. Unangst opened the trunk of the Garrett Vehicle to search for tow hooks, smelled marijuana, and discovered the vacuum-sealed package in the spare tire compartment, which he suspected contained marijuana and prompted him to alert Trooper Trent. Consequently, Trooper Trent notified the radio dispatcher that she was in custody of suspected CDS and took the vacuum-sealed package to Hope Police Station.

" The Supreme Court has, in fact, stressed that analysis of fourth amendment issues involves 'an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time' and not on the officer's actual state of mind at the time the challenged action was taken." United States v. Scopo, 19 F.3d 777, 783 (2d Cir. 1994) (citing Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985)

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(quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 56 L.Ed.2d 168, (1978)). In light of the fact that at the time of the seizure, Trooper Trent had, at Mr. Garrett's request, retrieved his three mobile phones from the center console of the Garrett Vehicle; Mr. Unangst had alerted her to the vacuum-sealed package in the trunk of the Garrett Vehicle; the trunk of the Garrett Vehicle smelled like marijuana[13]; and Trooper Trent observed the rectangular, vacuum-sealed bag in the spare tire compartment of the Garrett Vehicle, the court finds that Trooper Trent's seizure of the package based on probable cause to believe that it contained CDS was reasonable.

d. The Subsequent Search of the Package at the Police Station was Supported by Probable Cause

Mr. Garrett also argues that the subsequent warrantless search of the package found in the trunk of the Garrett Vehicle by Detective Shotwell was unlawful because (1) the initial seizure of the package was unlawful, and (2) the " plain feel" doctrine does not apply. As the court previously has determined that the warrantless seizure of the package was lawful, the court addresses the " plain feel" exception.

The " plain feel" doctrine is a variation of the " plain view" doctrine that provides that law enforcement " may lawfully seize evidence they touch and can plainly feel is contraband or contains contraband." See United States v. Colon, No. 10 Cr. 498 (RPP), 2011 WL 569874, at *13 (S.D.N.Y. Feb. 8, 2011) (citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). The Second Circuit has also held that law enforcement's search of a container that plainly feels like it contains contraband is lawful. See United States v. Ocampo, 650 F.2d 421, 429 (2d Cir. 1981) (holding that search of brown bag where law enforcement agents could plainly feel that the bag contained currency was lawful). However, where the nature of the object is not immediately apparent by touch, law enforcement is prohibited from " physical manipulation" such as " feel[ing] the bag in an exploratory manner." Bond v. United States, 529 U.S. 334, 338-39, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). In Minnesota v. Dickerson, the Supreme Court found a search to be unconstitutional where an officer " determined that the lump was contraband only after squeezing, sliding and otherwise manipulating the contents of the defendant's pocket -- a pocket which the officer already knew contained ...


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