United States District Court, W.D. New York
DECISION & ORDER
FRANK P. GERACI, Jr., Chief District Judge.
By Text Orders of Hon. Charles J. Siragusa, entered on July 8, 2010 and March 1, 2011, this case was referred to United States Magistrate Judge Jonathan W. Feldman, pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). ECF Nos. 17, 75. As part of a Second Superseding Indictment involving multiple defendants and alleging a drug conspiracy occurring from 1993 through March 2, 2011 (ECF No. 268), Defendant James Kendrick has been charged with Counts 1-10, 14 and 15, to wit: Narcotics conspiracy in violation of 21 U.S.C. § 846; Continuing Criminal Enterprise in violation of 21 U.S.C. § 848(a); Attempted Possession of Heroin with Intent to Distribute in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2; two counts of Possession of Heroin with Intent to Distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2; two counts of Using Premises for Drug Dealing in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; two counts of Possession of Firearm in Furtherance of Drug Crimes in violation of 18 U.S.C. §§ 924(c)(1) and 2; Possession and Discharge of Firearms in Furtherance of Drug Crime in violation of 18 U.S.C. §§ 924(c)(1)(a)(iii) and 2; and two counts of Murder While Engaged in Drug Crime in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2.
Defendant filed a pretrial motion to suppress (ECF No. 25), and the government filed papers in opposition to this motion (ECF No. 30). A suppression hearing was held on July 30, 2012 (ECF No. 299), and arguments were heard from by parties. Following the suppression hearing, both parties filed supplemental briefs. ECF Nos. 451, 453. The Magistrate Judge filed a Report and Recommendation on February 3, 2015. ECF No. 643. Therein, the Magistrate Judge recommends that this Court deny Defendant's motion to suppress evidence seized and statements he gave to law enforcement on October 2, 2009.
On March 10, 2015, Defendant filed his Objection to the Magistrate Judge's Report and Recommendation Concerning James Kendrick's Motion to Suppress ("Defendant.'s Objs."), on the ground that the traffic stop was unlawful and, therefore, all evidence obtained as a result of the stop, including drug evidence found during the search of the car and his post-arrest statements to police, must be suppressed. ECF No. 656. Thereafter, on March 30, 2015, the government timely filed its Memorandum in Opposition to James Kendrick's Objections to Judge Feldman's Report and Recommendation Denying His Motion to Suppress ("Gov't Resp."), contending that the Magistrate Judge's recommendation to deny suppression of evidence and statements was correct because the initial stop was supported by probable cause that Defendant was speeding, the subsequent period of detention was reasonable given the circumstances and the behavior of the driver and the passengers, and the Defendant was properly advised of his Miranda rights and knowingly waived them before talking to the police. ECF No. 662.
Following the issuance of the United States Supreme Court's decision in Rodriguez v. United States, 135 S.Ct. 1609, 2015 WL 1780927 (April 21, 2015), which held that absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Fourth Amendment's prohibition against unreasonable searches, the government, by letter dated April 22, 2015, distinguished the facts in the instant matter from those presented in Rodriguez and urged this Court to find, as did the Magistrate Judge herein, that reasonable suspicion supported prolongation of the stop in this case. ECF No. 668. The Court provided Defendant with an opportunity to respond to the government's submission, and his timely response has now been received. ECF No. 675. Defendant has taken the position that Rodriguez further supports his position that the traffic stop in this case was unlawfully prolonged and the fruits of that stop must therefore be suppressed. Id.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Magistrate Judge's Report and Recommendation to which objections have been made. Under this provision, "[a] judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. Upon a de novo review of the Report and Recommendation, and a due consideration of Defendant's Objections to the Magistrate Judge's Report and Recommendation, the government's Memorandum in Opposition to the Defendant's Objections, the certified transcript of the motion hearing held on July 30, 2012,  all written submissions of the parties, as well as their motion papers, I find no basis to alter, modify, or reject the Magistrate Judge's Report and Recommendation.
Preliminarily, Defendant states that the relevant facts are set forth in the Magistrate Judge's Report and Recommendation. Upon review of the certified transcript of the suppression hearing, I concur with the Defendant's assessment regarding the accuracy of the Magistrate Judge's reporting of the relevant facts adduced at the hearing. A summary of the relevant facts proves helpful.
On October 2, 2009, at 10:03 A.M., New York State Trooper Gabriel T. Ryan stopped a Buick Rendezvous automobile on the New York Thruway for speeding as detected using a radar gun. Tr. 32-34, 39-40. At the time of the stop, Trooper Ryan radioed in the stop and gave the dispatcher the vehicle's license plate information and quickly learned that the car was registered to Jose Troche. Tr. 66-67. Trooper Ryan exited his vehicle, approached the passenger side of the Buick, and explained to the driver that he had stopped the car for speeding and asked him for his driver's license and registration. Tr. 37. The driver complied; Trooper Ryan identified him as Jose Troche. Id. Trooper Ryan described Troche as "shaking, " "looking around, " and "extremely nervous, " and even after Trooper Ryan explained to Troche that he was just stopped for speeding, Troche still "didn't calm down at all." Tr. 39. According to Trooper Ryan, this distinguished Troche from other drivers. Id.
Trooper Ryan asked Troche to step out of the car and accompany him to the back of the vehicle so he could ask him some questions; Troche did so. Id. Upon being asked where he was coming from and where he was going, Troche said that he had been at his Uncle Juan's house in Manhattan, that they went out to clubs after speaking with his uncle, and that he had spent the night at his uncle's residence. Tr. 40-42. Trooper Ryan observed that there "didn't appear to be anything in the vehicle for an overnight's stay." Tr. 40. He described Troche as "still extremely nervous." Tr. 41.
After speaking with Troche, Trooper Ryan separately approached the two passengers, James Kendrick (front seat) and Jeffrey Davis (back seat), and asked them the "same questions" because it seemed like there was a little bit more going on than just staying overnight... there was no luggage in the vehicle." Id. Their answers differed: Kendrick and Davis told Trooper Ryan that Troche's uncle's first name was Pablo and that they were driving from Brooklyn. Tr. 42. Kendrick told Trooper Ryan that they stayed in that evening; Davis told him that they went to different people's apartments that evening. Tr. 42. Trooper Ryan testified that "all three individuals were extremely nervous." Tr. 70.
At 10:12 A.M., Trooper Ryan received information that Troche's license was valid, and he had sufficient information to issue him a speeding ticket. Tr. 68. Yet, based on his training, Trooper Ryan felt, "a little bit more was going on." Tr. 70. Again, he approached Troche and explained that "the stories weren't adding up, that there [were] three different stories. That it was one evening that they were down there, I got three different answers on what they did that evening." Tr. 43. After telling Troche that "it seemed like something more was going on than just going from point A and going to point B, " Trooper Ryan asked Troche for consent to search the vehicle. Tr. 43-44. Troche consented to the search and agreed to confirm consent by signing a written consent to search form. Tr. 44-45. Trooper Ryan retrieved the form and asked Troche to fill in his name and address. Trooper Ryan filled in the vehicle information, and Troche signed the form at 10:24 A.M., following which Trooper Ryan conducted a search of the vehicle. Tr. 47. Trooper Ryan acknowledged that in the 11-minute period of detention for questioning between 10:13 and 10:24, Defendant was not free to leave. Tr. 75.
During the search of the front passenger side of the vehicle, Trooper Ryan found "wedged in between the passenger seat and the center console" a yellow package which he secured in his vehicle. Tr. 48. Upon being asked by Trooper Ryan if he knew what was in the yellow package, Troche responded that "if he had to guess, he would guess it was either cocaine or heroin, " and admitted that he was paid $500 to make the trip to the city. ...