***UNITED STATES DISTRICT COURT***

***DISTRICT OF MAINE***

***UNITED STATES OF AMERICA )***

***)***

> ***)***

***v. ) Criminal No. 08-42-P-H***

***)***

> ***)***

***FREDERICK GATES, )***

***)***

***Defendant )***

***RECOMMENDED DECISION ON MOTIONS TO SUPPRESS***

Frederick Gates, charged with one count of conspiring to distribute, and
to possess with intent to distribute, controlled substances, including
50 grams or more of a mixture or substance containing cocaine base and
cocaine, and aiding and abetting such conduct, in violation of 21 U.S.C.
§§ 846 and 841(a)(1) and 18 U.S.C. § 2 (Count One), and one count of
knowingly and intentionally possessing, with intent to distribute, 50
grams or more of a mixture or substance containing cocaine base, and
aiding and abetting such conduct, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2 (Count Two), *see* Superseding Indictment
("Indictment") (Docket No. 79), filed three motions to suppress evidence
based on asserted unlawful police conduct in North Carolina and Maine in
2007 and 2008. *See* Defendant's Motion To Suppress ("First Motion To
Suppress") (Docket No. 52); Defendant's Amended Motion To Suppress and
Request for Consideration of an Additional Issue ("Second Motion To
Suppress") (Docket No. 71); Defendant's Consolidated Supplemental Motion
To Suppress and Response to Government's Opposition to Defendant's
Motion To Suppress Statemen\[\]ts ("Third Motion To Suppress") (Docket
No. 98).

An evidentiary hearing on all three motions was held before me on
November 21, 2008, at which the defendant appeared with counsel. The
government tendered four witnesses and offered 10 exhibits, all of which
were admitted without objection. The defendant neither tendered
witnesses nor offered exhibits. At the close of the evidence, counsel
for both sides argued orally. During the course of the hearing, as
discussed in greater detail below, both sides made representations
and/or concessions that narrowed the scope of the issues in dispute. I
now recommend that the following findings of fact be adopted and that
the First and Third Motions To Suppress be denied and that the Second
Motion To Dismiss be dismissed as moot.

**I. Proposed Findings of Fact**

**A. Vehicle Stop in North Carolina on September 19, 2007**

William Blair Hall, a uniformed patrol officer and a member of the
Criminal Patrol Unit of the Gaston County, North Carolina, police, was
on duty in his marked police cruiser on North Carolina's Interstate 85
at about 11 a.m. on September 19, 2007, when he observed a blue
Chevrolet Tahoe with Maine license plates exceeding the speed limit of
65 miles per hour. As the Tahoe sped past him, Hall noticed that the
driver, a black male, was driving with his hands locked in the "10 a.m.
and 2 p.m." positions on his steering wheel in a stiff and rigid pose,
facing forward. This struck Hall as unusual because most drivers,
perhaps 90 percent, acknowledge the presence of a marked cruiser in some
manner, whether by waving, sometimes even making an obscene gesture,
slowing down, or at least glancing in the cruiser's direction. Hall
suspected that the driver's body language was indicative of an "If I
don't see him, he doesn't see me" attitude.

Hall's goal, while patrolling the interstate, is to uncover evidence of
interstate criminal activity, not to ticket drivers for moving
violations. Prior to becoming a member of the Criminal Patrol Unit, he
had spent five years as a Gaston County undercover narcotics officer. He
understood Interstate 85 to be the second largest pipeline for the
transportation of drugs and narcotics in the eastern United States, with
drugs typically flowing north and proceeds of drug trafficking usually
flowing south.

After clocking the Tahoe's speed at 77 miles per hour, Hall activated
his blue flashing lights and pulled it over to the shoulder of the
highway. He called the stop in to his dispatcher and activated
audiovisual recording equipment with which his cruiser was equipped. He
got out and approached the passenger side of the Tahoe, which was
occupied by a second black male, conducting a "plain view search" as he
walked. He noticed a Christmas tree air freshener hanging in the back
window. He also noticed that the vehicle contained no luggage and only
an orange-colored piece of equipment in its back storage area and
something white under the driver's seat. He approached the passenger's
side of the vehicle, noting that a second air freshener was hanging from
the rear-view mirror. He also observed a package of Swisher Sweets
cigars, which in his experience commonly are used to smoke marijuana, in
the center console.

The passenger rolled down his window, whereupon Hall smelled a strong
odor of air freshener. At that point, his suspicions were heightened by
the lack of luggage in the car, which had Maine license plates, and the
presence of two air fresheners. In his experience, drivers typically do
not hang air fresheners in the rear of their vehicles, and such
fresheners are used to mask the odor of contraband. However, he admits,
fresheners can be used for other purposes, such as masking pet odors,
and the defendant and White were traveling with a puppy.

Hall asked the driver, the defendant, for his driver's license. As is
Hall's custom, he refrained from asking for the vehicle's registration
at that time to preserve the option of re-approaching the occupants
later in order to ask for that document. Hall noticed that the defendant
was nervous and couldn't sit still. Hall asked him where he was going.
The defendant paused for a moment before answering, "Georgia." When Hall
asked how long the defendant planned to be there, the defendant replied,
"Uh, a couple of days." This, too, raised Hall's suspicions because most
people answer questions about where they are going and how long they
will be there without hesitation.

Hall returned to his cruiser with the defendant's license and ran a
search on his onboard computer of the license and the vehicle's plates.
At this point, although Hall had not seen or smelled the odor of drugs
or observed large sums of cash, he had made up his mind that further
investigation was warranted. He suspected that the defendant and his
passenger were involved in money laundering, bringing drug trafficking
proceeds to Atlanta. He called for backup from two fellow officers and
attempted unsuccessfully to contact his department's canine unit via
computer. Hall confirmed via computer search that the defendant had a
valid driver's license. He could find no computerized record of the
vehicle's registration.

About two minutes into the traffic stop, the two backup police officers
whom Hall had called, including Brent Roberts, arrived on the scene.
Hall briefed Roberts on his observations and suspicions and asked him to
identify the passenger. Hall also radioed the canine unit, which he
succeeded in reaching this time, and learned that the unit was about 12
minutes away.

Roberts approached the passenger, who identified himself as MacKenzie
White and said that he had no license. Roberts noticed a white object
behind the driver's seat that appeared to him to be either digital
scales or a food processor. He also observed the box of Swisher Sweets
cigars in the center console and some residue that he was fairly
certain, given its green hue, derived from marijuana. Roberts asked for
the vehicle's registration. While White was searching for it in the
glove compartment, a driver's license fell out. Roberts asked to see it
and concluded that it was not that of the defendant or White. White
produced a registration and recent bill of sale, which Roberts gave to
Hall, together with the third party's driver's license. The recent sale
explained why Hall had been unable to find evidence of the car's
registration in his computerized database. Hall also ran a criminal
history search on the defendant, learning that he previously had been
charged with several crimes, including possession of a firearm by a
felon.

At approximately 11:21 a.m., Hall exited his cruiser, approached the
defendant, and asked him to get out of the vehicle. He walked with the
defendant to the back of the Tahoe. Hall, who was carrying papers in his
hand, pointed to one of the documents, the license that had fallen out
of the glove compartment, and inquired, "Who's this fellow right here?"
The defendant said that the license belonged to a friend in Georgia who
had considered moving to Maine but had decided against it and had gone
home to Georgia. Hall disbelieved the explanation, doubting that anyone
would carelessly leave a driver's license in another's vehicle. Hall
also inquired who the passenger was and how the defendant knew him. The
defendant explained that he was MacKenzie White, a distant cousin.

Hall then informed the defendant that he had decided merely to give him
a warning rather than a citation for speeding. As is typically the case
when Hall delivers this news, the defendant appeared relieved. The
giving of a warning rather than a ticket was a standard tactic for Hall
in cases in which he intended to ask for consent to a fuller search,
because he believed that it predisposed the driver to respond more
favorably to the consent request. Hall also typically asked the driver
in such cases to exit the vehicle so that he could get a better read of
the driver's whole body language. During the time that Hall was
conversing with the defendant outside of the Tahoe, the canine unit
arrived on the scene.

Hall told the defendant that the warning he was issuing was "a record of
when and where and why I stopped you; there's nothing to it, um you can
throw it away when you get to your destination." Gov't Exh. 1B-T at
3.[^1] Hall then gave the defendant the documents he was carrying, and
the defendant thanked Hall.[^2] Hall then immediately added, "Let me ask
you something." *Id*. After briefly quizzing the defendant about the
duration of his planned stay in Georgia, Hall stated, "Let me, I'm
gonna, I'm gonna, I'd like to run my canine around your car." *Id*. The
defendant said, "Okay." *Id*. Hall then asked whether there was anything
illegal in the car, which the defendant denied. Hall inquired whether
the defendant had anything on him, and then conducted a pat-down search
of the defendant's person. He felt what he believed to be a wad of
currency in the defendant's left front pocket and asked him to remove
it. The defendant did so, producing a large sum of currency folded and
secured with black rubber bands. This, in Hall's experience, was
consistent with the manner in which drug traffickers package currency.
The defendant also had several cell phones. In Hall's experience, those
engaged in criminal activity typically carry more than one cell phone.
Hall directed the passenger, White, to exit the vehicle and patted him
down, as well.

After Hall began questioning the defendant anew following issuance of
the warning, the defendant again began to display signs of what Hall
took to be stress or nervousness, talking with his hands, scratching his
face, and moving around as the men conversed. Had the defendant not
consented to the canine search, Hall intended to tell him that he
suspected that the defendant was carrying contraband and that he was
going to detain the vehicle to run the dog around it, although the
defendant himself was not detained.

After the defendant and White left the vehicle, the canine handler ran
his dog around the exterior. The dog "alerted" to the front passenger
side, jumping up and pawing at the door, signifying the presence of
contraband. Hall and Roberts asked the defendant and White what might be
causing the dog to alert. White admitted to having smoked marijuana
during the trip and produced a small bag of marijuana to Roberts. Hall
then instructed the dog's handler to put the dog inside the vehicle and
continue the search there. No contraband was found that was linked to
the defendant. However, after Hall consulted with the United States
Bureau of Immigration and Customs Enforcement ("ICE"), the defendant and
White were detained on ICE's authority.

**B. November 13, 2007, Search of Defendant's Person, Residence**

On August 29, 2007, the defendant was arrested in Lewiston, Maine, on a
state charge of operating under the influence. *See* Gov't Exh. 3. He
was released on bail pending a scheduled court appearance on that charge
on November 14, 2007, with conditions that included his agreement not to
use or possess any alcoholic beverages or illegal drugs. *See id*. He
further agreed, as a condition of bail, that:

> In order to determine if I have violated any prohibitions of this bond
> regarding alcoholic beverages, illegal drugs or dangerous weapons, I
> will submit to searches of my person, vehicle and residence and, if
> applicable, to chemical tests . . . upon articulable suspicion.

*Id*.

On October 10, 2007, the defendant was arrested in Lewiston on state
charges of disorderly conduct and refusing to submit to arrest. *See*
Gov't Exh. 2. He was released on bail pending a scheduled court
appearance on those charges on December 12, 2007, with conditions that
included his agreement not to use or possess any alcoholic beverages or
illegal drugs. *See* *id*. He further agreed, as a condition of bail,
that:

> In order to determine if I have violated any prohibitions of this bond
> regarding alcoholic beverages, illegal drugs or dangerous weapons, I
> will submit to searches of my person, vehicle and residence and, if
> applicable, to chemical tests . . . at any time without articulable
> suspicion or probable cause.

*Id*.

On November 13, 2007, Lewiston police officer Michael Dumond and Maine
Drug Enforcement Agency task force agent Wayne Clifford observed the
defendant leave Dave's Store, a convenience store located at the corner
of Sabattus and College streets in Lewiston, carrying a brown bag that
appeared to contain a six-pack or a twelve-pack of a beverage. Dumond
knew that the defendant resided in an apartment at 28 Howe Street, not
far from Dave's Store. Dumond also was aware that the defendant was
subject to bail conditions, including random search of both his person
and his residence. Because neither Dumond nor Clifford was in uniform,
Dumond contacted a uniformed police officer, Brian Rose, and asked him
to conduct a field interview of the defendant.

Rose stopped the defendant as he was heading in the direction of, and
was only about 100 feet away from, his apartment at 28 Howe Street.
About two minutes after that stop, as Rose was confirming the
defendant's bail conditions with him, Dumond joined them. The defendant
was found to have been carrying beer, a violation of his bail
conditions. The defendant was placed in Rose's cruiser, and Rose told
him he was going to search his residence, per his bail conditions. The
defendant said words to the effect, "Yeah, whatever." Either Rose or a
fourth officer, Eric Syphers, removed a key from the defendant's pocket
without asking his permission to do so, and used that key to gain access
to his apartment, which officers then searched.

**C. January 26, 2008, Search of Defendant's Cell Phones**

At approximately 2:30 a.m. on January 26, 2008, acting on a tip relayed
by Dumond that drug-trafficking activity was afoot, Lewiston police
officer Gregory D. Boucher and a colleague set up surveillance of an
apartment at 106 Walnut Street in Lewiston.

Shortly after 3 a.m., Boucher observed a maroon vehicle park on the
street in front of 106 Walnut Street. A female exited the vehicle,
popped the trunk, got back inside the vehicle and honked the horn. A
minute or two later, two black males emerged from the apartment and got
into the vehicle. As the vehicle drove past his cruiser, Boucher, who
knew the defendant by sight, observed that the female was driving, the
defendant was in the front passenger seat, and the third male, whom he
recognized as Brandon Johnson, was in the back seat.

Boucher and his colleague, who were in uniform and driving a marked
cruiser, followed the maroon vehicle. They observed the driver speed and
then roll through a stop sign. Shortly thereafter, Boucher pulled the
maroon vehicle over. He confirmed that the defendant and Johnson were
passengers and identified the driver as Robin Thiel. He ran a
computerized check that showed that both the defendant and Johnson were
released on bail conditions that included random searches and tests. He
asked the defendant and Johnson to step out of the car. Boucher's
colleague performed pat-down searches of both the defendant and Johnson,
finding a small bag of marijuana on Johnson's person. Boucher asked
Thiel to step out of the vehicle and asked her where she was going. She
said she was taking the defendant and Johnson to Auburn and, when the
defendant noticed the car was being followed by police, he stuck a
baggie that she believed contained crack cocaine into her waistband. She
retrieved a baggie from her waistband and turned it over to Boucher.

Boucher decided to arrest both the defendant and Johnson. About five
minutes had passed since initiation of the vehicle stop. Boucher's
colleague handcuffed both men. After the defendant was handcuffed,
Boucher seized his cell phones and searched them for incoming and
outgoing phone calls and text messages, noting on a piece of paper what
he found. He conducted this search at the arrest site. Shortly
thereafter, within 30 minutes of the initial stop of the vehicle, the
defendant and Johnson were transported to the police station.

The defendant's cell phones posed no threat or safety issue. While there
is always a risk that information stored electronically can be lost, the
defendant's cell phones appeared to be functioning normally.

**II. Discussion**

In his First Motion To Suppress, the defendant challenges the November
13, 2007, search of his person and residence and the January 26, 2008,
vehicle stop and search of his cell phones. *See* First Motion To
Suppress at 3-6.

With respect to the November 13, 2007, search, the defendant argues in
his papers that (i) his bail conditions were unreasonable and violated
the Fourth Amendment because they were not the least restrictive
conditions needed to ensure his presence in court for a pending criminal
matter, (ii) even if those conditions were reasonable, he withdrew his
consent to them by declining the search, (iii) his consent, if any,
expired upon his arrest for violating his bail, (iv) nothing in his bail
conditions permitted officers to take his key from his pocket without
his consent and use it to gain access to his apartment, and (v) any
statements obtained following his arrest not only were obtained as a
result of the foregoing violations but also "were unconstitutionally
obtained in the absence of his Fifth Amendment right to remain silent."
*Id*. at 4-5.

At hearing, defense counsel narrowed and refined these arguments,
asserting that his client's bail conditions did not permit the taking of
a key from his pocket or the random search of his residence following
his arrest for violating those conditions. He clarified that he did not
contest the reasonableness of the underlying bail conditions except to
the extent that they permitted a search in those circumstances.

With respect to the January 26, 2008, traffic stop, the defendant
asserts in his papers that (i) officers lacked a reasonable and
articulable suspicion to stop the vehicle, (ii) even if the initial stop
was legitimate, their subsequent actions exceeded any reasonable scope,
and (iii) the defendant's cell phones were searched without a warrant
and in the absence of satisfaction of any exception to the warrant
requirement. *See id*. at 5-6.

At hearing, defense counsel conceded the validity of the January 26,
2008, traffic stop, clarifying that, with respect to that incident, he
continues to press only the point that his client's cell phones were
unlawfully searched.

In his Second Motion To Suppress, the defendant sought to suppress
statements obtained in January 2008 in asserted violation of his Sixth
Amendment right to counsel. *See generally* Second Motion To Suppress.
At hearing, counsel for the government represented that the government
will not seek to introduce any of those statements in its case in chief.
On the strength of that representation, which of course the government
is expected to honor, defense counsel acknowledged that the Second
Motion To Suppress is moot.

The defendant continues to press the central points made in his Third
Motion To Suppress: that, while North Carolina officers had a legitimate
basis for the initial stop of the Tahoe on September 19, 2007, their
actions quickly exceeded reasonable bounds, transforming the stop into
an illegal detention and vitiating any purported consent given to the
canine search. *See* Third Motion To Suppress at 5-8.

In the face of these challenges, the government bears the burden of
proving both the legitimacy of the September 19, 2007, North Carolina
traffic stop and the January 26, 2008, cell phone search. *See, e.g.,
United States v. Ramos-Morales*, 981 F.2d 625, 628 (1st Cir. 1992)
(government bears burden of proving the lawfulness of warrantless
searches and seizures). In the context of a search and seizure
undertaken pursuant to bail conditions, the government meets its burden
of showing consent to such a search by pointing to bail conditions
permitting it. *See, e.g., State v. Ullring*, 1999 ME 183, ¶ 26, 741
A.2d 1065, 1073. The burden then shifts to the defendant to present
evidence showing that the bail conditions were unreasonable in the
circumstances. *See id*. I consider the defendant's points in
chronological order, finding, for the reasons that follow, that the
government meets its respective burdens, and that the defendant falls
short of establishing the unreasonableness of his bail conditions.

**A. September 19, 2007, Traffic Stop**

The defendant correctly points out that, with respect to the legality of
the North Carolina traffic stop, the law of the United States Court of
Appeals for the Fourth Circuit controls. *See* Third Motion To Suppress
at 4-5; *see also, e.g., United States v. Ozuna*, 129 F. Supp.2d 1345,
1354 (S.D. Fla. 2001), *aff'd*, 48 Fed. Appx. 739 (11th Cir. 2002) ("The
few federal cases that have addressed a similar choice-of-law issue in
the criminal context have adopted a lex loci (i.e., the 'law of the
place' of the conduct) approach."); *United States v. Restrepo*, 890 F.
Supp. 180, 191 (E.D.N.Y. 1995) ("The Memphis officers should have been
able to rely on their understanding of the law in the Sixth Circuit and
could not have been expected to know the law in circuits other than the
one in which they were operating.").

The Fourth Circuit has stated:

> If a police officer observes a traffic violation, he is justified in
> stopping the vehicle for long enough to issue the driver a citation
> and determine that the driver is entitled to operate his vehicle. The
> driver's consent or reasonable suspicion of a crime is necessary to
> extend a traffic stop for investigatory purposes.

*United States v. Branch*, 537 F.3d 328, 337 (4th Cir. 2008). "The
maximum acceptable length of a routine traffic stop cannot be stated
with mathematical precision." *Id*. at 336. "Instead, the appropriate
constitutional inquiry is whether the detention lasted longer than was
necessary, given its purpose." *Id*. *See also, e.g., United States v.
Rusher*, 966 F.2d 868, 876 (4th Cir. 1992) ("The officer \[\] may
request a driver's license and vehicle registration, run a computer
check, and issue a citation. When the driver has produced a valid
license and proof that he is entitled to operate the car, he must be
allowed to proceed on his way, without being subject to further delay by
police for additional questioning.") (citation and internal quotation
marks omitted).

To the extent that a traffic stop is prolonged beyond this point for
investigative purposes, in the absence of the driver's consent, its
reasonableness is judged with reference to the standards of *Terry v.
Ohio*, 392 U.S. 1 (1968). *See Branch*, 537 F.3d at 336-37. The Fourth
Circuit has highlighted four points central to the *Terry* stop
analysis:

1\. "*Terry's* 'reasonable suspicion' standard is less demanding than
probable cause." *Id*. at 336 (citation and internal punctuation
omitted). "Indeed, in order to justify a *Terry* stop, a police officer
must simply point to specific and articulable facts which, taken
together with rational inferences from those facts, evince more than an
inchoate and unparticularized suspicion or hunch of criminal activity."
*Id*. (citations and internal quotation marks omitted).

2\. "\[A\] court must take a commonsense and contextual approach to
evaluating the legality of a *Terry* stop. . . . '\[R\]easonable
suspicion' is a nontechnical conception that deals with the factual and
practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act." *Id*. (citations and internal
punctuation omitted). Thus, context and "respect for the training and
expertise of police officers" matter. *Id*.

3\. "Courts must look at the cumulative information available to the
officer, and not find a stop unjustified based merely on a piecemeal
refutation of each individual fact and inference." *Id*. at 337
(citations and internal quotation marks omitted). "It is the entire
mosaic that counts, not single tiles." *Id*. (citation and internal
quotation marks omitted). *See also, e.g., United States v. Blanc*, 245
Fed. Appx. 271, 273 (4th Cir. 2007) ("\[A\] person's behavior, though
appearing innocent, may raise questions justifying a detention when
viewed in the totality and combined with the police officer's knowledge
and experience.").

4\. "\[A\] police officer's decision to stop and detain an individual
must be evaluated objectively. Thus, the lawfulness of a *Terry* stop
turns not on the officer's actual state of mind at the time the
challenged action was taken, but rather on an objective assessment of
the officer's actions." *Branch*, 537 F.3d at 337 (citations and
internal quotation marks omitted).

The Fourth Circuit has made clear, however, that "if the traffic stop
becomes a consensual encounter, the *Terry* inquiry would not be
employed, and the stop would instead be governed by the Supreme Court's
analysis in *Florida v. Bostick*, 501 U.S. 429, 111 S.Ct. 2382, 115
L.Ed.2d 389 (1991), because a consensual encounter does not trigger
Fourth Amendment scrutiny." *United States v. Meikle*, 407 F.3d 670, 672
(4th Cir. 2005) (citation and internal quotation marks omitted). The
Fourth Circuit has observed:

> Under *Bostick*, the question is whether the police conduct would have
> communicated to a reasonable person that the person was not free to
> decline the officers' requests or otherwise terminate the encounter.
> This inquiry involves an objective analysis of the totality of \[the\]
> circumstances. If a reasonable person would have felt free to decline
> the officer's request or otherwise terminate the encounter, and the
> suspect freely gives consent to search at this point, there is no need
> to reach the issue of whether the initial stop was permissible under
> *Terry*.

*Id*. at 672 (citations and internal quotation marks omitted).

In *Meikle*, the Fourth Circuit found that a routine traffic stop became
a consensual encounter when (i) a total of 11 minutes passed between the
time of the initial stop and the time that the officer issued a warning
citation, returned the driver's license and registration, and shook his
hand, (ii) several seconds later, as the driver turned and was beginning
to walk away, the officer asked if he could speak with him, and (iii)
the driver engaged in a further conversation with the officer during
which he consented to a search of his vehicle. *See id*. at 673. The
Fourth Circuit reasoned that, even though the officer had not expressly
told Meikle that he was free to go, as had occurred in the remarkably
similar *Rusher* case, Meikle nonetheless understood that he was free to
leave, having shaken hands with the officer and begun to depart, and the
officer had returned all of Meikle's papers, which also signified that
he was free to leave. *See id*. at 673-74.

At hearing, defense counsel argued that it is clear that Hall's intent
was to undertake some sort of criminal investigation, that Hall had
nothing more than a hunch of criminal activity, that the roadside
detention for a period of 20 to 25 minutes prior to issuance of the
warning citation was grossly excessive, with Hall clearly delaying until
the canine unit's arrival, and that any purported consent to the dog
search was not given freely and voluntarily but, rather, was a fruit of
the initial illegal detention and of the overall coercive atmosphere,
with four officers by then present at the scene. Counsel for the
government posited that the instant case is parallel to, and controlled
by, *Miekle.* Alternatively, he argued, Hall had developed reasonable
suspicion to effectuate an investigative *Terry* stop.

On cross-examination, Hall denied that he deliberately extended the
traffic-violation portion of the Tahoe stop to await the arrival of a
canine unit. A viewing of Hall's tape of the encounter bears this out.
Hall first approached the Tahoe at approximately 11:02 a.m. *See* Gov't
Exh. 1 at 11:01:45. He delivered a warning citation to the defendant
approximately 20 minutes later, at 11:22 a.m. *See id*. at 11:21:56. In
the interim, he promptly sought a check on the defendant's license, ran
an unsuccessful search of the Tahoe's license plate number, and
requested a criminal history check on the defendant. At approximately
11:11 a.m., he asked Roberts to obtain the vehicle's registration and to
check the passenger's license. *See id*. at 11:10:50. Roberts returned
to Hall's cruiser about a minute later with bill-of-sale papers for the
Tahoe and the license of a third person, not present in the vehicle.
*See id*. at 11:11:59. The recent bill-of-sale papers explained why the
vehicle's registration had not appeared in the database Hall had been
searching. However, Hall still was awaiting the results of other reports
that he had sought. From approximately 11:16 a.m. to 11:20 a.m., he
spoke with an unidentified caller who affirmed that the defendant's
driver's license was valid, noted that the defendant had no outstanding
warrants for his arrest, and reported that the defendant did have a
criminal history, which the caller described to Hall in detail. *See
id*. at 11:15:32 to 11:19:41. Shortly after Hall ended that phone call,
he exited his cruiser and re-approached the defendant. When he did so,
he returned the defendant's papers, issued him a warning, and assured
him that he was free to tear the warning up when he arrived at his
destination. The defendant understandably appeared relieved, and thanked
Hall.

While Hall subjectively intended to conduct an investigatory detention,
that intention is not relevant to whether, as an objective matter, the
defendant was detained for a reasonable period of time incident to the
initial traffic stop. I conclude that he was. The stop is otherwise
indistinguishable in all material respects from those at issue in
*Miekle* and *Rusher*, in which the driver was asked, following the end
of the traffic stop as signaled by the return of documents and issuance
of a warning, whether he would consent to a further search. *See
Miekle*, 407 F.3d at 673-74; *Rusher*, 966 F.2d at 876-77.

There are no indicia that the defendant's consent to the search was not
voluntary. While four officers were present at the scene, there is no
evidence that any of them drew his weapon, threatened, or even raised
his voice to the defendant. Hall alone spoke with the defendant to
obtain his consent to the canine search. In so doing, Hall employed a
pleasant, normal tone of voice, even at one point bantering with the
defendant in response to the defendant's comment that he got a lot of
tickets. When Hall stated that he wanted to run a dog around the
exterior of the car, the defendant readily replied, "Okay." The
defendant, who had a criminal history, was no neophyte to the criminal
justice system.

In similar circumstances, the Fourth Circuit has discerned voluntary
consent to a search following a roadside traffic stop. *See, e.g.,
United States v. Farrior*, 535 F.3d 210, 219 (4th Cir. 2008) ("The fact
that Officer Morris had returned Farrior's license and registration also
strongly indicates that the encounter was consensual and that no seizure
occurred within the meaning of the Fourth Amendment. Indeed, on numerous
occasions we have found similar exchanges between an officer and an
individual after the officer has returned the individual's license and
registration to be consensual and thus not violative of the Fourth
Amendment.") (citations omitted); *United States v. Jackson*, 235 Fed.
Appx. 155, 156 (4th Cir. 2007) ("As the district court noted, nothing in
the record indicates that Jackson's consent was involuntary as Jackson
had been arrested more than once and had experience with the criminal
justice system, asked about probable cause, and told Trooper Bird that
he was a businessman. The circumstances were not coercive, deceptive, or
intimidating. The encounter remained consensual because Jackson
voluntarily cooperated with Trooper Bird.").

In any event, even assuming *arguendo* that North Carolina officers'
actions should be viewed through the lens of *Terry* rather than
*Bostick*, either because the initial 20-minute detention was excessive
or because a reasonable person in the defendant's shoes would not have
felt free to decline the officer's requests or otherwise terminate the
encounter, officers had developed sufficient reasonable articulable
suspicion to prolong the encounter beyond the period of time necessary
to process the speeding violation.

While it is true, as defense counsel emphasized at the hearing, that
officers had no visible evidence that the defendant was engaged in
criminal activity, they had more than a hunch. As Hall testified at the
hearing, his suspicions mounted as he viewed an air freshener hanging in
the back of the car, a usage consistent with drug traffickers' efforts
to mask odors of contraband, viewed Swisher Sweets in the center
console, which he knew are often used to smoke marijuana, noticed no
luggage in the car despite the alleged trip from Maine to visit family
in Georgia, observed nervousness and hesitation on the part of the
defendant in answering simple questions regarding his destination and
length of stay, was informed by Roberts that a third party's driver's
license had been found in the car's glove compartment, and learned that
the defendant had a criminal history, including a charge for possession
of a firearm by a felon.

In addition, Hall knew that Interstate 85 was the second largest drug
trafficking corridor in the eastern United States, with drugs typically
flowing north and drug proceeds typically flowing south. Putting all of
these pieces of the mosaic together, Hall harbored a reasonable,
articulable suspicion that the defendant and his passenger were not
merely making an innocent trip to visit family in Georgia, but might be
transporting cash representing proceeds of drug trafficking. *See
Blanc*, 245 Fed. Appx. at 273 (officer who made roadside traffic stop on
Interstate 85 in South Carolina had reasonable, articulable suspicion
that criminal activity was afoot when driver provided vague and
deceptive information about his visit, appeared evasive about his
employment, was driving a rental car rented in Texas that was overdue by
three weeks, and drug traffickers frequently drove rental cars, the
cities with which the driver was linked, Miami, Atlanta, Charlotte, and
Houston, were known by officer to be source cities for drug trafficking,
Interstate 85 was known to officer as a major drug trafficking highway,
and officer's partner thought he smelled marijuana in vehicle).

In this scenario, the defendant was properly detained pursuant to
*Terry* when Hall asked for his consent to run the canine around the
vehicle. For the reasons discussed above, that consent was voluntarily
given.

**B. November 13, 2007, Search of Residence**

The defendant next contends that the search of his residence on November
13, 2007, was unlawful because (i) nothing in his bail conditions
permitted the taking of a key from his person to effectuate that search,
and (ii) his arrest for violation of his bail conditions terminated any
authority conferred by the bail bonds to conduct searches for purposes
of determining whether he was in violation of his bail conditions. At
hearing, his counsel posited that if his client's bail conditions permit
this search, they presumably would permit police arresting an individual
stopped in Cumberland, who had a house in Hollis and a ski home at
Sugarloaf, to search both the Hollis and Sugarloaf homes following a
Cumberland stop and arrest. Such searches, he posited, exceed the bounds
of legitimate checks on compliance with bail conditions, instead
becoming warrantless investigatory searches.

Counsel for the government countered that, whatever the outer bounds of
permissible bail searches, in this case the search of the defendant's
residence was undertaken contemporaneously with his arrest and in close
proximity to the site where he was arrested, as a result of which it was
part and parcel of officers' check on the defendant's compliance with
bail conditions. He observed that he was unaware of any authority that
an arrest for bail non-compliance terminates or otherwise modifies bail
conditions, which he reasoned can be modified only by the issuing
authority. Finally, he asserted that officers permissibly removed the
defendant's key to facilitate the entry into his residence permitted by
the bail conditions.

The government's arguments are persuasive. The defendant agreed, as part
of bail conditions imposed on October 10, 2007, to submit to searches of
his person, vehicle, and residence, at any time and without articulable
suspicion or probable cause, for purposes of determining if he had
violated any prohibitions of his bail bond regarding alcoholic
beverages, illegal drugs, or dangerous weapons. *See* Gov't Exh. 2. The
defendant was stopped when approximately 100 feet from his residence,
evidently in the process of returning home after making a purchase at a
nearby convenience store. He was found to be in violation of his bail
bond by virtue of his possession of beer. The fact of his arrest for
violation of bail conditions did not, in itself, work a modification of
those bail conditions or otherwise disable officers from further inquiry
into his bail condition compliance. *See* 15 M.R.S.A. § 1026(3)(C)
(contemplating modification of bail conditions by court).

A reasonable police officer could have concluded that possession of beer
might not have been the defendant's only bail violation and that a
search of his nearby residence might turn up additional such violations.
The defendant had agreed to submit to such a search as part of his bail
bond and, insofar as appears, he did just that. When told that officers
intended to search his residence, he said words to the effect, "Yeah,
whatever." There is no evidence that he revoked that consent prior to
the search of his residence that he now contests. Nor, from all that
appears, did he protest removal of the key from his pocket or its use to
gain entry into his apartment for purposes of the search. In the
circumstances, as counsel for the government argued, the extraction of
the key from the defendant's pocket simply facilitated a permitted
search. The search accordingly was performed in accordance with the
defendant's bail conditions.

To the extent that the defendant argues that the bail conditions, if
they permitted the challenged search, were unreasonable in the
circumstances, he places no evidence on his side of the scales. Any
Fourth Amendment challenge to the reasonableness of the bail conditions
accordingly fails. *See Ullring*, 1999 ME 183, ¶¶ 26-27, 741 A.2d at
1073.[^3]

**C. January 26, 2008, Cell Phone Search**

The defendant finally challenges Boucher's January 26, 2008, search of
his cell phones, which he contends was impermissible in the absence of a
search warrant. *See* First Motion To Suppress at 6. This court has held
a warrantless search of a defendant's cell phone contents lawful when
"substantially contemporaneous" with the defendant's arrest. *See United
States v. Curry*, Criminal No. 07-100-P-H, 2008 WL 219966, at \*10 (D.
Me. Jan. 23, 2008) (rec. dec., *aff'd* Feb. 12, 2008). Boucher's search
of the defendant's cell phones, which occurred within minutes of the
defendant's arrest at the scene of the traffic stop where the arrest
occurred, clearly passes muster. *Compare id*. (search of cell phone
contents lawful when phones were seized in field at time of arrest,
search occurred within half hour of arrest, and search took place at
locale close to scene of arrest).

**III. Conclusion**

For the foregoing reasons, I recommend that that the First and Third
Motions To Suppress be denied and that the Second Motion To Dismiss be
dismissed as moot.

***[NOTICE]{.underline}***

## A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which [de]{.underline} [novo]{.underline} review by the district court is sought, together with a supporting memorandum and request for oral argument before the district judge, if any is sought, within ten (10) days after being served with a copy thereof. A responsive memorandum and any request for oral argument before the district judge shall be filed within ten (10) days after the filing of the objection.

***Failure to file a timely objection shall constitute a waiver of the
right to [de]{.underline} [novo]{.underline} review by the district
court and to appeal the district court's order.***

Dated this 19th day of December, 2008.

[/s/ John H. Rich III]{.underline}

John H. Rich III

# United States Magistrate Judge

  ----------------------------- ---------------- ---------------------------------
  **[Defendant                                   
  (1)]{.underline}**                             

  **FREDERICK GATES**           represented by   **MICHAEL WHIPPLE**\
                                                 THE HALLETT LAW FIRM\
                                                 75 MARKET STREET\
                                                 SUITE 505\
                                                 PO BOX 7508\
                                                 PORTLAND , ME 04112\
                                                 207-775-4255\
                                                 Email:
                                                 mwhipple@thehallettlawfirm.com\
                                                 *LEAD ATTORNEY*\
                                                 *ATTORNEY TO BE NOTICED*\
                                                 *Designation: CJA Appointment*

  **[Plaintiff]{.underline}**                    

  **USA**                       represented by   **DANIEL J. PERRY**\
                                                 U.S. ATTORNEY\'S OFFICE\
                                                 DISTRICT OF MAINE\
                                                 100 MIDDLE STREET PLAZA\
                                                 PORTLAND , ME 04101\
                                                 207-780-3257\
                                                 Email: dan.perry@usdoj.gov\
                                                 *LEAD ATTORNEY*\
                                                 *ATTORNEY TO BE NOTICED*\
                                                 \
                                                 **KATE LAWRENCE**\
                                                 U.S. ATTORNEY\'S OFFICE\
                                                 DISTRICT OF MAINE\
                                                 100 MIDDLE STREET PLAZA\
                                                 PORTLAND , ME 04101\
                                                 207-780-3227
  ----------------------------- ---------------- ---------------------------------

[^1]: As an aid to the court, the government prepared transcripts of
    select parts of the audio portion of Hall's audiovisual recording of
    the encounter. I reviewed the recording and am satisfied that the
    portions of the transcript quoted herein accurately reflect the
    underlying dialogue.

[^2]: From all that appears, when Hall issued the defendant a warning,
    he returned the documents that he and Roberts had obtained during
    the traffic stop. On the videotape of the encounter, Hall can be
    seen and heard asking about the third party's license and pointing
    to the papers in his hand while conversing with the defendant at the
    back of the Tahoe. The defendant then can be seen taking the papers
    from Hall.

[^3]: I need not and do not address whether, as counsel for the
    government posited at hearing, the defendant's bail conditions would
    have permitted officers to use force to enter his apartment in his
    absence.