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United States v. Asaro

United States District Court, D. Massachusetts

June 20, 2014

UNITED STATES OF AMERICA,
v.
PHILLIP ASARO, Defendant.

OPINION AND ORDER

GEORGE A. O'TOOLE, Jr., District Judge.

The twelve defendants in this case are alleged to have been involved in a marijuana distribution ring. Defendant Phillip Asaro is charged with conspiracy to distribute marijuana in violation of 21 U.S.C. § 846, being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g), and perjury in violation of 18 U.S.C. § 1623. Law enforcement began targeting surveillance efforts at Asaro in June 2011, when cameras were set up outside his residence at 56 Hurd Street in Malden, Massachusetts. The wiretap of his phone was authorized in October 2011.

A state trooper stopped Asaro's vehicle in Medford on February 23, 2012. The stop resulted in the seizure of 175 pounds of marijuana and a notecard with numerical notations matching the numbers written on each bale of marijuana. The next morning, state agents executed a search warrant at Asaro's residence, seizing fifteen items. Asaro moves to suppress (dkt. no. 145) all items seized and any statements he made to law enforcement, both before and after his arrest on February 23, 2012. An evidentiary hearing was held on the motion.

I. Findings of Fact

Based on their investigation, agents believed that Asaro and others were using a warehouse in Woburn, Massachusetts, to store bales of marijuana. On February 22, 2012, pursuant to a warrant, federal agents installed a video camera inside the warehouse. The next day, around 6:54 p.m., Asaro was seen to arrive at the warehouse in a pickup truck and enter the building. In addition to the camera, Massachusetts state trooper Orlando Tirella was stationed in the vicinity of the warehouse conducting surveillance. Based on video surveillance, telephone intercepts, and visual observation, agents believed that Asaro was at the warehouse to pick up a quantity of marijuana.

Tirella arranged for another trooper, Brian McKenna, to be on the lookout for Asaro's truck after it left the warehouse and to conduct a traffic stop so that Asaro could be questioned and the truck searched. McKenna had not to that point been involved in the investigation.

McKenna saw and stopped Asaro's truck on Interstate Route 93 a little after 7:00 p.m. The plausible pretext for the traffic stop was that the pickup was following the vehicle ahead of it too closely. Trooper McKenna asked Asaro for his license and registration. McKenna then asked Asaro for consent to search the truck, and Asaro consented.[1] At some point thereafter, Asaro got out of his truck. McKenna asked him what was in the bed of the pickup, and Asaro said there were golf clubs. At McKenna's direction, Asaro opened the tailgate, revealing golf clubs and some plastic bins. At McKenna's request, Asaro opened one of the bins. McKenna observed a large package wrapped in cellophane that was consistent with a distribution-size quantity of marijuana. When McKenna asked Asaro what it was, the defendant said it was marijuana.

McKenna placed Asaro under arrest, advised him of his Miranda rights, and transported him to the Medford state police barracks. There, after again advising Asaro of his Miranda rights, Trooper Tirella and Special Agent Michael Krol took him to a booking room and uncuffed him. When asked where he was coming from and where he was headed, Asaro told the officers that he had met with a friend in Stoneham and was on his way home. At some point during the conversation, Asaro asked to call his attorney and his wife, but his request was not granted until a significant amount of time had passed.

Trooper Tirella ultimately obtained a search warrant for Asaro's residence. Early the next day, officers executed the warrant and found marijuana, $349, 820 in cash, packaging material, a number of cell phones, a loaded 40-caliber firearm, and a drug ledger apparently accounting for over 2, 000 pounds of marijuana.

II. Discussion

Asaro contends that the stop and search of his pickup truck on February 23, 2012, violated his Fourth Amendment rights because (1) he had not committed any traffic violation, (2) he was not given Miranda warnings at the time of the stop, and (3) he did not give valid consent to the search of the back of his truck. He further contends that statements made at the state police barracks after he requested to speak with an attorney should be suppressed. Finally, he argues that because evidence unlawfully obtained was used to support the issuance of the warrant, the fruits of the search of his home should likewise be suppressed.

A. Motor Vehicle Stop and Search

Regardless of whether there was a valid basis for a traffic stop of the truck, the stop and subsequent search were constitutional because law enforcement agents conducting the investigation had ample probable cause to believe that Asaro was transporting marijuana. See United States v. Ross , 456 U.S. 798, 825 (1982) ("If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search."); United States v. McHugh , 769 F.2d 860, 865 (1st Cir. 1985) ("Once probable cause existed to believe that contraband was being concealed and illegally transported in the pickup truck, the search could properly have been conducted without a warrant."). The collective knowledge doctrine, under which a court may "impute facts known by one police officer to another ...


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