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United States v. Smith

June 4, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MICHAEL SMITH AND GREGORY HARRIS, DEFENDANTS.



The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

On December 13, 2007, Defendants Gregory Harris ("Harris") and Michael Smith ("Smith") were charged with drug trafficking offenses relating to their alleged involvement in a drug trafficking organization that operated between Chicago, Illinois, and Detroit, Michigan. Now before the Court are Defendants' Motions to Suppress Evidence seized after two warrantless traffic stops on March 12, 2007, requests for an evidentiary hearing, and supplemental briefs. The Government argues that the Court should deny Defendants' motions to suppress without a hearing. For the reasons stated herein, the Court denies both the motions to suppress and the requests for a hearing.

I. BACKGROUND

A. Factual Background

In early 2007, based on information that cocaine would be transported from Chicago to Detroit, undercover law enforcement agents began conducting surveillance at the home of Lois Buffington ("Buffington") in Chicago. On March 12, 2007, at approximately 6:25 p.m., agents observed a blue 2007 Chrysler Pacifica with Michigan plates ("the Pacifica"), which was registered to Harris, arrive and park in front of the Buffington residence. Marvin Inkton ("Inkton") and Harris, who was carrying a white shopping bag, exited the Pacifica and walked to the rear of the residence. About ten minutes later, Harris and Inkton walked empty-handed from the residence to the Pacifica and drove away. Agents followed the Pacifica to a gas station a few blocks away. Shortly thereafter, agents observed a green 2007 Chrysler Voyager with Michigan plates ("the Voyager"), which was also registered to Harris, enter the gas station. Agents observed Harris and Inkton meet with Smith and then depart the area in the vehicles. Surveillance agents followed the Pacifica and the Voyager, which were traveling in tandem, to a McDonald's and then to I-94/I-80 as the two vehicles traveled eastbound into Indiana. While conducting this surveillance, the agents obtained the assistance of Gary Police Department Officer Jeff Hornyak ("Officer Hornyak"). The agents informed Officer Hornyak that they believed the vehicles were transporting narcotics.

1. Traffic Stop of the Voyager

Officer Hornyak observed the Pacifica and the Voyager traveling in tandem in excess of the posted speed limit. As a result, he initiated a traffic stop of the Voyager at approximately 7:22 p.m. See Gary Police Dept. Dispatch Rep. Officer Hornyak obtained the Voyager's registration and a Michigan driver's license from Smith, who had been driving the vehicle. Based on his training, experience, and interactions with Smith, Officer Hornyak believed that Smith was nervous during their conversation and was providing deceptive answers to his questions about the purposes for visiting Chicago and length of his stay. Officer Hornyak returned to his patrol car to issue a citation for speeding. Because he believed that Smith was being dishonest and based on his knowledge regarding the surveillance, at 7:35 p.m., Officer Hornyak called Lake Station Police Department Officer Ronald Potrebic ("Officer Potrebic") to come to the scene with his narcotic's detection canine. See Lake Station Police Dept. Incident Rep.; Lake Station Police Dept. Dispatch Rep.

Officer Hornyak then advised Smith of the contents of the citation for speeding. During this conversation, Officer Hornyak determined that Smith appeared to be more nervous than at the beginning of the traffic stop. Officer Hornyak told Smith that he was working drug interdiction and asked him if he had any weapons or narcotics in the Voyager, to which Smith responded "I don't have anything on me." When Officer Hornyak asked for consent to search the Voyager, Smith initially verbally consented but withdrew his consent when given a consent form.

At 7:44 p.m., Officer Potrebic arrived at the scene of the traffic stop with his canine. See id. When directed around the outside of the Voyager, the canine gave positive alerts to the presence of the odor of a controlled substance coming from the rear passenger area. Based on these alerts, the canine was deployed inside the Voyager where it alerted again to the rear passenger area. Upon visual inspection, Officer Hornyak discovered a white brick-like object, which he recognized as a kilogram of cocaine. At this time, Officer Hornyak placed Smith in wrist restraints. Law enforcement later recovered a total of 5.82 kilograms of cocaine from the Voyager, two cellular telephones from Smith, and a cellular telephone from inside the Voyager.

2. Traffic Stop of the Pacifica

At approximately 7:35 p.m., Drug Enforcement Agency Task Force Agent Jeffrey Trevino ("Agent Trevino") conducted a traffic stop of the Pacifica on I-65 eastbound for speeding. When this stop was made, Inkton was driving the Pacifica, and Harris was in the passenger's seat. After this stop, Ogden Dunes Police Officer Wayne Dugan ("Officer Dugan") was called to assist Agent Trevino. According to Officer Dugan's sworn testimony and the Ogden Dunes records, Officer Dugan was dispatched at 7:43 p.m. and arrived on the scene of the stop at 7:48 p.m. See Dugan Aff. ¶ 2; Ogden Dunes Police Dept. Dispatch Rep.

For safety reasons, Officer Dugan placed both Inkton and Harris in the back seat of his patrol car while Agent Trevino conducted his investigation. Dugan Aff. ¶¶ 6-7. According to his affidavit, after putting both men in the back seat, Officer Dugan activated his in-car dash mounted video recorder ("the video camera") and turned it around to face the subjects. Id. at ¶ 8. During the traffic stop, this video camera contained a time stamp that did not reflect the accurate time. The time stamp recorded that the traffic stop had already begun as of 7:05 p.m. Officer Dugan testified that both he and the Ogden Dunes Chief of Police knew that the time stamp was incorrect during the traffic stop on March 12, 2007. Id. at ¶¶ 10-13.

During the traffic stop of the Pacifica, Agent Trevino learned from Officer Hornyak that packages of cocaine were discovered in the Voyager. Based on this discovery, information from the surveillance, and statements from Inkton and Harris that the officers determined to be inconsistent, Agent Trevino detained ...


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