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United States v. Herrera

United States District Court, D. Massachusetts

February 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MANUEL ROSARIO HERRERA, Defendant.

          MEMORANDUM AND ORDER ON MOTION TO SUPPRESS EVIDENCE

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         Defendant Manuel Rosario Herrera is charged with possession with intent to distribute 100 grams or more of heroin, fentanyl, cocaine, and cocaine base in violation of 21 U.S.C. § 841. Currently pending before the Court is Defendant's motion to suppress all of the evidence obtained from a traffic stop and a related search of the vehicle that he was driving at the time of the stop. [ECF No. 21]. For the following reasons, Defendant's motion, with the exception of the $2, 000 in cash seized during the pat frisk, is DENIED.

         I. FACTUAL BACKGROUND

         Following consideration of the briefs, argument, and testimony adduced at an evidentiary hearing held on November 27, 2017, the Court makes the following findings of fact.[1] In late January 2016, the Drug Enforcement Administration (“DEA”) began investigating a drug trafficking organization operating in the Boston, Dedham, and Revere areas. The investigation ultimately involved extensive physical and electronic surveillance of various persons and locations, including Starling Bladmir Gonzalez, Vinicio Baez, and Pacific Auto Sales, a car dealership that law enforcement understood to be owned by Vinicio Baez's brother, Wilson Baez, who was also a subject/target of the investigation.[2] On the morning of December 13, 2016, the investigation culminated with the execution of a series of arrest warrants and search warrants, including at the residences of Starling Bladimir Gonzalez and Vinicio Baez, both of whom had by then been identified as members of the drug trafficking organization, and at Pacific Auto Sales, where law enforcement had, during the course of the investigation, observed drug transactions and intercepted telephone calls related to drug trafficking.

         While the search warrants and arrest warrants were being executed, investigators were also surveilling Wilson Baez's residence at 14 Bussey Street in Dedham. They first observed Wilson Baez drive away from the residence in a red Nissan Murano. After a failed attempt to follow him, the investigators returned to 14 Bussey Street and saw a woman leave the residence and get into a Chevy Avalanche. She drove one block away before parking it and walking back to 14 Bussey Street. After approximately 15 minutes, Defendant left 14 Bussey Street carrying a small white plastic bag. He placed the bag in the trunk of a black SUV and drove away.

         The investigators at 14 Bussey Street conveyed all of these observations by radio to Massachusetts State Police Sergeant James Bazzinotti (“Sgt. Bazzinotti”) who was stationed nearby in a marked police cruiser. He was instructed to effect a traffic stop of the SUV and, to that end, began following the SUV being driven by Defendant. After less than one minute, Sgt. Bazzinotti observed the SUV accelerate toward a highway ramp, drive outside of the ramp's travel lane, and nearly strike the curb.[3] He immediately stopped the vehicle and approached it. He asked Defendant for his license and registration and explained that he had committed a marked lane violation. The officer asked Defendant who owned the vehicle and Defendant said his uncle was the owner. When asked to provide his uncle's name, Defendant looked at the vehicle's registration and read from it, “Florian, Maria.” The officer asked whether Defendant's uncle was a woman and Defendant admitted that his uncle's name was not Maria Florian. Throughout this conversation, based on his shaking, stuttering and breathing rate, Defendant appeared to the officer to be nervous and stressed.[4]

         One to two minutes into the traffic stop, Massachusetts State Police Trooper Kevin O'Hara arrived at the scene and Sgt. Bazzinotti then asked Defendant to step outside of the vehicle. In Sgt. Bazzinotti's opinion, Defendant continued to appear nervous and stressed.[5] After Defendant was out of the car, Sgt. Bazzinotti, with Trooper O'Hara standing next to him, asked Defendant if he had any weapons. Defendant removed a small knife from his pocket and immediately turned it over to Sgt. Bazzinotti. Sgt. Bazzinotti then pat frisked Defendant and felt a hard, square object in his right pant pocket, which he suspected to be contraband. He asked Defendant to identify the object, and Defendant replied that it was money. Sgt. Bazzinotti removed a wad of $2, 000 in small denomination bills from Defendant's pocket that, based on his experience, was wrapped in manner indicative of narcotics distribution. Sgt. Bazzinotti asked Defendant whether he had any weapons in the SUV. Defendant said that he did not and to “go ahead and check.” Sgt. Bazzinotti proceeded to search the SUV and found, on the front passenger seat floor, a box of new sneakers, a wad of approximately 300 one-dollar bills, empty plastic bags that were consistent with drug distribution, and two cell phones. Sgt. Bazzinotti then opened the back of the SUV and found a plastic bag that contained what he believed to be heroin. Trooper O'Hara arrested Defendant and Sgt. Bazzinotti issued him a written warning for the traffic violation. Less than ten minutes elapsed from the initiation of the stop until the arrest.

         II. DISCUSSION

         “Where a warrantless stop and search were conducted, the burden is on the government to prove that the stop and search were reasonable within the meaning of the Fourth Amendment.” United States v. Lawrence, No. 13-10245, 2016 WL 9185278, at *1 (D. Mass. Feb. 25, 2016) (citing Florida v. Harris, 133 S.Ct. 1050, 1055 (2013)). Defendant's motion to suppress, including his affidavit in support, largely asserts that he never consented to the search of the vehicle.[6] At the hearing, Defendant also challenged the voluntariness of his alleged consent to the search and argued that the officers unreasonably prolonged the stop by questioning him about the SUV's ownership and ordering him to exit the vehicle.

         A. Initial Stop

         “The Fourth Amendment requires that traffic stops by police and the resulting temporary detention of individuals for questioning be reasonable, that is, based on probable cause to believe that a traffic violation has occurred, ” United States v. $572, 204 in U.S. Currency, More or Less, 606 F.Supp.2d 153, 157 (D. Mass. 2009) (citing Whren v. United States, 517 U.S. 806, 810 (1996)), or based on reasonable suspicion “that the occupants of the vehicle are engaged in criminal activity.” United States v. Arias, 588 F.Supp.2d 237, 238 (D.R.I. 2008) (citing United States v. Chhien, 266 F.3d 1, 5-6 (1st Cir. 2001)). The government provided uncontradicted testimony that an officer observed, from a close distance and without any visual obstruction, Defendant drive outside of an access ramp's travel lane and nearly strike the curb. During the ensuing stop, the officer explained to Defendant that he had committed a marked lane violation and ultimately issued him a written warning. The fact that the officer had probable cause to believe that Defendant had committed a traffic violation justified the stop.[7] See $572, 204, 606 F.Supp.2d at 157 (“marked lane violation for admittedly ‘weaving' on the highway provided probable cause to stop him for violating the traffic laws”); United States v. Cintron, 592 F.Supp.2d 198, 201 (D. Mass. 2008) (finding probable cause to effect a stop where officer observed vehicle “being driven erratically, weaving in and out of lanes and almost hitting a barrier in the median”).[8]

         B. Scope of the Traffic Stop

         In reviewing the progression and scope of a traffic stop, “[a]ny action undertaken with respect to the stop ‘must be reasonably related in scope to the stop itself unless the police have a basis for expanding their investigation.'” United States v. Dion, 859 F.3d 114, 124 (1st Cir. 2017) (quoting United States v. Ruidíaz, 529 F.3d 25, 28-29 (1st Cir. 2008) (internal quotations omitted)). The Court must evaluate “‘whether the officer's subsequent actions were fairly responsive to the emerging tableau-the circumstances originally warranting the stop, informed by what occurred, and what the officer learned, as the stop progressed.'” United States v. Criswell, No. 08-10025, 2009 WL 3340160, at *3 (D. Mass. Oct. 15, 2009) (quoting Chhien, 266 F.3d at 6). In examining reasonableness, the Court considers “the totality of the surrounding circumstances, ” in order to make a practical, commonsense determination that includes “a measurable degree of deference to the perceptions of experienced law enforcement officers.” Dion, 859 F.3d at 124 (citations and quotation marks omitted).

         1. Questions About the Vehicle's Ownership and Exiting the Vehicle

         Defendant contends that the stop, even if initially justified, was unreasonably prolonged by the officer's inquiries about the vehicle's ownership and his order that Defendant step outside of the vehicle. “[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's ‘mission'-to address the traffic violation that warranted the stop, . . . and attend to related safety concerns.” Dion, 859 F.3d at 123-24 (quoting Rodriguez v. United States, 135 S.Ct. 1609, 1614 (2015)). An officer's “mission” includes, among other things, “‘ordinary inquiries incident to [the traffic] stop, '” such as “checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.” Id. (quoting Rodriguez, 135 S.Ct. at 1615). Here, the officer's questions about the ownership of the vehicle lasted for only a minute and were related to the inspection of the vehicle's registration. He continued his inquiry as a result of Defendant's contradictory responses and nervous demeanor. See United States v. Sowers, 136 F.3d 24, 27 (1st Cir. 1998) (officer's ...


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