United States District Court, E.D. New York
MEMORANDUM OF DECISION
M. COGAN U.S.D.J.
faces charges for Hobbs Act robbery conspiracy, Hobbs Act
narcotics distribution conspiracy, and unlawful use of
firearms in furtherance of both. Defendant had moved to
suppress evidence gathered in connection with a November 2007
car stop. I held an evidentiary hearing and subsequently
denied the motion from the bench. This opinion explains the
grounds for that ruling.
November 15, 2007, Corporal Donnie Carter of the Sampson
County Sheriff's Office observed defendant driving a
vehicle that he believed violated the window tint laws. Prior
to pulling defendant over for that infraction, Corporal
Carter observed both defendant and his passenger change
positions from relaxed to rigid upon them passing the marked
police car. Specifically, he saw that defendant had gone from
a relaxed posture to a stiff posture and that he sat up
straighter, fixing his hands at the proper
“ten-and-two” position. He also observed the
passenger slide into a crouched position, pressing himself
into the seat as if to hide his body from the officer's
Corporal Carter had pulled the vehicle over to the side of
the road and exited his patrol car, he approached the
passenger's side of the vehicle and identified himself.
Defendant thereafter handed Corporal Carter a North Carolina
driver's license in the name of “Rolando
Ruiz” and presented the vehicle registration, which
showed that the car he was driving belonged to his passenger,
Rigoberto Rivera. Corporal Carter immediately noticed that
the car contained an “overwhelming” odor of air
fresheners, which he knew from his experience could be used
to mask the scent of narcotics.
asking defendant to step out from the driver's seat of
the car, Corporal Carter performed a consent search on
defendant's person, finding a necklace in his pocket. He
then requested that defendant sit in the patrol car with him
while he ran defendant's driver's license and the
vehicle registration. While together in the patrol car,
Corporal Carter asked defendant where he was coming from, to
which defendant responded that he and Rivera had been in
Raleigh to visit a friend. When Corporal Carter inquired
about the friend, defendant could not recall his name, but
said he knew him only by his nickname.
Carter then asked about the passenger's (Rivera's)
name. Defendant hesitated for a few moments before answering.
Defendant further stated that he worked in a restaurant in
Clinton, North Carolina. During the entire discussion,
Corporal Carter observed that defendant appeared stiff and
rigid, and was looking straight ahead instead of looking at
Scott Grantham, also of the Sampson County Sheriff's
Office, arrived on the scene while Corporal Carter was still
sitting with defendant in the patrol car. Corporal Grantham
went up to Rivera and asked from where he had driven. Rivera
replied that he and defendant were roofers who had been in
Raleigh all day, but were not able to work because of the
rain. When Corporals Carter and Grantham then compared their
respective discussions in defendant's presence, defendant
appeared to become flustered when his story didn't match
up with Rivera's, and interjected that Rivera does not
point, Corporal Carter issued defendant a warning ticket for
the window tint. He then approached Rivera's side of the
vehicle, asking him to step out. After receiving consent,
Corporal Carter performed a search of Rivera's person,
finding jewelry in his pockets as well as flex handcuffs and
approximately $3, 100 in cash. Corporal Carter recognized
that these items also were indicia of criminal activity.
Specifically, the fact that both defendant and Rivera had
jewelry in their pockets was a sign that they had recently
been involved in activity consistent with a robbery.
Grantham then retrieved his certified narcotics detection
dog, K-9 Beny, in order to conduct a free-air search of the
vehicle. At the time of the stop, Corporal Grantham and Beny
had been a certified narcotic detection team for
approximately one year, after completing the required 238
hours of training. Beny was certified by the North American
Police Work Dog Association in November 2006 and was
re-certified in September 2007 (never failing any of his
certification tests). Pursuant to these certifications, Beny
was qualified to detect cocaine, heroin, marijuana, and
methamphetamine. During field training, Beny was rewarded
both when he alerted in the presence of narcotics and when he
did not alert in situations where narcotics were absent. In
short, Beny was not primed or encouraged only to find
narcotics, but to get the answer correct.
Grantham and Beny circled the car twice in a counterclockwise
direction. At various points, Corporal Grantham
“presented” the seams of the car for Beny to
sniff. During the first revolution, Beny stopped at the front
passenger door seam, showing interest and possibly alerting.
However, Corporal Grantham noticed that there was an object
on the ground outside that door, and he could not be sure
that Beny was not distracted by the object. The pair
continued in this manner around the car without incident or
alert until they reached the trunk. When Corporal Grantham
then moved his hand to the seam of the trunk to present that
area, Beny jumped with his front paws upon the vehicle.
Corporal Grantham moved on without any apparent recognition
of an alert.
the second revolution, Beny again appeared to show interest
in the front passenger door upon Corporal Grantham presenting
the seam. According to Corporal Grantham, he observed Beny
change his posture and breathing, and begin to scratch the
door seam, which, consistent with his typical
bark/bite/scratch mode of alert, signaled to Corporal
Grantham that Beny was giving a positive alert. Taking that
as a cue, Corporal Grantham opened the door and allowed Beny
to search the vehicle. Soon after, Beny scratched and barked
at a duffel bag in the back seat of the vehicle. Corporal
Grantham then extracted the bag from the vehicle, at which
point Rivera took off running. After catching up to and
apprehending Rivera, the officers placed him under arrest and
returned to the duffel bag.
opening the bag, the officers found several large bundles of
U.S. currency. They also found additional bundles of U.S.
currency underneath the driver's seat of the vehicle,
wrapped in a similar manner to the money in ...