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United States v. Foreste

United States Court of Appeals, Second Circuit

March 11, 2015

UNITED STATES OF AMERICA, Appellee,
v.
MICHAEL J. FORESTE, Defendant-Appellant

Argued November 12, 2014

As corrected March 16, 2015.

Page 519

Defendant-Appellant Michael J. Foreste appeals from a judgment of conviction imposed bye the United States District Court for the District of Vermont (Sessions, J.) following his conditional guilty plea to a charge that he possessed oxycodone with intent to distribute. On appeal Foreste (1) renews his argument that evidence obtained in two successive motor vehicle stops should be suppressed because the length of the investigatory detentions were collectively unreasonable, and (2) argues that the district court erred in denying his discovery request for the field performance records of the narcotics canine whose alert provided the probable cause for his arrest. AFFIRMED in part and VACATED and REMANDED in part for discovery of the narcotics canine's field performance records.

BRADLEY STETLER, Stetler, Allen & Kampmann, Burlington, VT, for Defendant-Appellant.

WENDY L. FULLER, Assistant United States Attorney (Gregory L. Waples, on the brief), for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, VT, for Appellee.

Before: POOLER, PARKER, and WESLEY, Circuit Judges.

OPINION

Page 520

Wesley, Circuit Judge.

After two successive traffic stops in Vermont and Massachusetts, Defendant-Appellant Michael J. Foreste was found to be in possession of oxycodone, a controlled substance. He entered a conditional guilty plea, but preserved his right to challenge the district court's denial of his motion to suppress. On appeal he argues (1) that the duration of the two successive traffic stops was unreasonably intrusive in violation of the Fourth Amendment, and (2) that the district court erred in denying his discovery request for the field performance records of the narcotics canine whose alert provided the probable cause for his arrest.

For the reasons below, the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part for discovery of the narcotics canine's field performance records.

BACKGROUND[1]

On April 2, 2012, Defendant Michael Foreste was traveling from New York City to Vermont in a rental car driven by Telly Cesar. As the two were traveling north on Interstate 91, Massachusetts State Trooper Rachel Loiselle pulled the vehicle over for speeding at 12:50 p.m. in Hatfield.

Trooper Loiselle testified that when she approached the vehicle and began speaking with Cesar and Foreste, she quickly became suspicious. Cesar mumbled his response to Loiselle's request for his license and registration; when she asked Cesar to repeat himself, Foreste answered; and, without being asked, Foreste proceeded to explain the details of their trip to Vermont. Foreste also gave Trooper Loiselle a rental agreement for the car that she testified " was expired by quite some time, perhaps as much as a month." Supplemental App. 78.

Trooper Loiselle returned to her police cruiser to review the paperwork and, suspecting that the two might be involved in criminal behavior, contacted Sergeant Eric Albright of the Vermont State Police. Loiselle thought Sergeant Albright might have additional information on Cesar or Foreste because Foreste is a Vermont resident and the rental car was registered in his name. Albright told Loiselle that he did not know anything about Cesar or Foreste, but said that he would call some of his contacts and try to find out more.

Trooper Loiselle also called her dispatch officer. She was concerned that the vehicle might have been stolen and asked her dispatch officer to contact the rental car company about the expired rental agreement. Loiselle then returned to the stopped vehicle to explain that there would be a delay because of the expired rental agreement. At that point Foreste handed Loiselle a second rental agreement, also expired, but which had expired more recently than the first.

Within a few minutes, the rental car company confirmed that there was no problem with the expired rental agreement as long as the vehicle was ultimately returned. The driver, Cesar, was issued a ticket for speeding, and Trooper Loiselle released the car at approximately 1:12 p.m.

Page 521

The stop lasted a total of twenty-two minutes.

After the vehicle departed, Sergeant Albright returned Trooper Loiselle's call. Albright had contacted Detective Dan Merchand of the Burlington Police Department and learned that, according to Detective Merchand's confidential informant, Foreste was a known cocaine and oxycodone dealer who transported large quantities of drugs from New York City to the Burlington area in rental vehicles.

Sergeant Albright decided to drive from the Brattleboro barracks to I-91, near Guilford, hoping to encounter Cesar and Foreste as they continued north into Vermont. Given the information he had obtained about Foreste's suspected drug trafficking, Albright decided " to try and find a motor vehicle violation if at all possible," Supplemental App. 50, in order to justify a stop of the vehicle. At the same time, Albright called Special Agent Thomas Doud of the Drug Enforcement Administration. Albright had learned from Detective Merchand that Special Agent Doud was investigating Foreste in conjunction with Merchand, and Albright hoped that Doud might have additional information on Foreste or Cesar. Albright, however, was unable to reach Doud and so left him a voice mail. Albright also called Inspector Mark Heberts from the Vermont Department of Motor Vehicles. Inspector Heberts is a canine handler who works with a narcotics-certified canine named Duchess Corrie. Albright asked Heberts to start driving in Albright's direction so that he would be available in the event Albright needed a drug-sniffing dog. When Albright spoke with him, Heberts was in Londonderry, Vermont, about an hour away from Albright's location.

At approximately 1:38 p.m., Sergeant Albright located Foreste's rental car at the Welcome Center in Guilford, Vermont. Albright saw the vehicle roll through a stop sign while exiting the parking lot and also observed an item hanging from the rearview mirror--both violations of Vermont motor vehicle laws. At approximately 1:40 p.m., Albright stopped Foreste's car on I-91 northbound after following the vehicle for one to two miles.

Sergeant Albright approached the vehicle and spoke with Cesar and Foreste. Albright requested Cesar's driver's license and noticed that Cesar mumbled when he spoke and was somewhat difficult to hear. Albright also observed what he believed to be marijuana " chafe" on Cesar's pants. He ordered Cesar to get out of the car " to further investigate whether or not he was in possession of narcotics and/or under the influence and operating the vehicle as such at that point." Supplemental App. 19. Albright then asked Cesar whether he had anything on his person that could hurt Albright, and, when Cesar indicated that he did not, the two proceeded to Albright's vehicle. As the two sat in Albright's car, Albright examined the rental agreement, reviewed Cesar's license, and checked for warrants. Albright also questioned Cesar about his occupation, his relationship with Foreste, and the details of his trip. Albright gave Cesar a written warning for the obstructed windshield and for failing to stop at the stop sign, and the two exited the police vehicle. The interaction with Cesar lasted approximately seven to ten minutes.

Sergeant Albright then reapproached the car to speak with Foreste, who remained seated in the vehicle. Albright asked Foreste a series of questions similar to those he had posed to Cesar--where the two men were traveling, whether Cesar was in possession of marijuana, and whether Cesar may have smoked marijuana ...


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