CASPER, District Judge.
Defendant Raymond Jeffreys ("Jeffreys") has moved to suppress all fruits of the search of an automobile driven by Jeffreys on January 18, 2012. D. 345. Having considered the motion (and supporting memorandum, D. 345), the government's opposition, D. 386, the evidence (including testimony and exhibits, Exhs. 1-15) presented at the evidentiary hearing, D. 397, and post-hearing briefing, D. 396-1, the Court DENIES the motion. Accordingly, the Court makes its findings of fact and legal analysis below.
These findings are based upon the testimony of Boston Police Officer Corey Franklin and Massachusetts State Trooper William Kenney who testified at the suppression hearing and the exhibits introduced at that hearing.
Trooper Kenney, previously assigned to the Violent Fugitive Apprehension Section of the State Police, testified about searching for Jeffreys. As of September 2011, Jeffreys had two outstanding state warrants: one for a parole violation (on an underlying assault and battery/dangerous weapon (firearm) charge out of Suffolk Superior Court); and one for drug possession out of Dorchester District Court. Exh. 10 at 1. Around the same time, Kenney began an investigation to locate and arrest Jeffreys. Kenney began by gathering information about Jeffreys and speaking with two of his parole officers. The parole officers informed him that they believed that Jeffreys was in the prostitution business and that he had a girlfriend, Jacquelyn Lungelow, who lived in the Bromley-Heath housing complex, 267 Centre Street in Jamaica Plain, but had vehicles registered at her mother's address in Marshfield. To locate Jeffreys, Kenney focused his search on finding Lungelow.
The two cars registered to Lungelow were a black Mazda and a 2006 Dodge Magnum station wagon. Between September 2011 and January 2012, Kenney conducted surveillance near Lungelow's Bromley-Heath residence and her mother's in Marshfield in an attempt to locate Jeffreys. He did not observe Lungelow or Jeffreys until the January 18th incident described below. (Although on November 2, 2011, Kenney learned that Lungelow was booked on a flight from Las Vegas to Boston, he later determined that she had checked in for the flight, but did not board it and he was unable to find out if Jeffreys was with her at the time).
In addition to information from the parole officers and the Registry of Motor Vehicles about Lungelow's vehicles, Kenney received information about them from the Cambridge Police Department. He learned from officers in that department that Jeffreys had previously been arrested in Cambridge in or about July 2010 and that at the time of his arrest, Lungelow was with him and she was driving a rental car. During that arrest, Jeffreys gave a false name and, during transport, also broke his cell phone and purposefully damaged the memory card in the phone. Kenney, who had previously been assigned to the auto theft task force, conducted a "backtrack history" of the Mazda registered to Lungelow and discovered that the vehicle had been previously towed and impounded in Georgia. After the impounding, Lungelow showed up to get some personal belongings out of the vehicle. The tow company found a hide in the vehicle containing numerous female drivers' licenses. The backtrack history also revealed that the car had previously been involved in an accident in New York and the operator at that time had a criminal record that included an October 2011 arrest for prostitution involving minors in Pennsylvania. The GPS on the Mazda also revealed that it had traveled up and down the East Coast. The Mazda was repossessed on September 26, 2011. Thereafter, as to vehicles, Kenney focused on the Dodge Magnum, which was also registered to Lungelow.
Starting in November 2011, Kenney saw queries from other MA police departments about the Dodge Magnum. These queries indicated to Kenney that this vehicle was back in Massachusetts. On January 13, 2012, Kenney traveled to Marshfield to see if he could find the Dodge Magnum. There, he spoke with Lungelow's mother, Deborah Jackson, at her residence. She identified herself as Lungelow's mother and informed the trooper that she had custody of Lungelow and Jeffrey's four-year old daughter. Jackson reported that she had just visited Lungelow at her
During surveillance on Centre Street, on January 18, 2012 around 5:45 p.m., Kenney observed Lungelow cross the street from the Bromley-Heath complex and continue walking. Kenney began to follow her on foot, but lost sight of her. He started back to his vehicle when he spotted the Dodge Magnum traveling down Lamartine Street. Given the timing of having seen Lungelow on the street and when he saw the Dodge, Kenney did not think that Lungelow was driving the car and he could not see the driver. Kenney ran to his unmarked vehicle and started to follow the Dodge Magnum, confirmed the plate was registered to Lungelow and used the radio to ask a Boston Police unit to make a motor vehicle stop of the Dodge. The call sent out noted that the vehicle may contain Jeffreys who was a parolee with past firearms charges who may or may not be armed. The trooper kept following the Dodge until he saw a marked unit pull it over.
Boston Police Officers Franklin, Franklyn Centeio and Roger Layden, in an unmarked vehicle, activated the lights and sirens and pulled the vehicle over at 87 Lamartine Street, Exh. 1. This street is in a residential area with no parking restrictions, Exhs. 6A-D, but is in the vicinity of the Bromley-Heath complex known to the police as a high crime area.
The Dodge Magnum stopped and Kenney and the other officers approached it with guns drawn. The vehicle had dark tinted windows and the occupants took well over a minute to roll the window down in response to the command to show their hands. Kenney's attention was drawn to the driver whom he identified as Jeffreys. Jeffreys showed his hands and complied with direction to get out of the vehicle. Jeffreys, however, did not produce a license and did not give his true name; he gave the false name of Shawn Cornell. See Exh. 2. Knowing that Jeffreys did not have a license and being aware of the outstanding warrants against him, the officers arrested Jeffreys and Boston Police officers transported him to the police station.
Kenney remained at the scene and had Lungelow step out of the vehicle. Kenney advised her of her Miranda rights. He asked her if there were any drugs or guns in the car. She indicated that there was not, but that there was a baby pitbull in the car. Kenney also asked her why she had Jeffreys drive the car, but she did not answer. The trooper also asked her why she was aiding and abetting Jeffreys when he had warrants, but she refused to respond. Kenney then arrested her for accessory after the fact for aiding a fugitive. Exh. 12. Before her transport, Kenney told her that they were going to tow the car and asked her if she had anyone who could come and take the pitbull, but she said she did not. The officers did not ask her if there was someone who could take the car. Given Lungelow's assertion that there was a pitbull in the car, the officers had animal control report to the scene to remove it. Animal control, however, found no dog in the car. Prior to animal control's search for the dog, Kenney did not look inside the car.
Because of the delay in response by Jeffreys and Lungelow when they were first pulled over and the nature of Jeffreys' criminal record, Kenney and the officers called a BPD ballistics canine to the scene to do a search of the car for guns.
As a result of finding the bail slip in the car, Kenney contacted a trooper in the vice squad, Sergeant Haseltine, who advised him to seize the documents as pertinent to an ongoing investigation. Kenney then called the tow company and put a hold on the vehicle so that it would not be returned to Lungelow if she was bailed and showed up to claim it. See Exh. 4 (noting motor vehicle hold "per order of State Police"). Haseltine then applied for search warrants for the car, the cell phones and the laptop computers. Exhs. 13A, 13B, 13C.
While Lungelow was being booked at the police station, Kenney did an inventory of her pocketbook. Kenney expected that the contents of same would be noted on the booking record (although the booking record for Lungelow admitted at the hearing, Exh. 3, does not list the contents), but Kenney also included the contents in his report (including but not limited to a license in another's name and a bus receipt showing travel from Portland to Boston on January 15, 2012). Exh. 10 at 8-9.
The officers had reasonable suspicion to stop the Dodge Magnum on January 18, 2012 because they had a reasonable basis to believe that Jeffreys, wanted on two outstanding warrants, would be in the vehicle. It is well settled that to conduct an investigatory stop, law enforcement officers need only reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The stop must "be supported by a reasonable and articulable suspicion of criminal activity ... and that the detention must be reasonable under the circumstances." United States v. Chhien, 266 F.3d 1, 5-6 (1st Cir.2001). For a Terry stop, the government must show that the stop was "justified at [its] inception" and reasonable in terms of its scope. Id. at 6. If the stop was justified at its inception, the Court must further determine "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." Id. at 6. Moreover, a law enforcement officer's observations do "not have to be correct to constitute reasonable suspicion." United States v. Brown, 621 F.3d 48, 57 (1st Cir.2010); see Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Furthermore, "`a fact that is innocuous in itself may in combination with other innocuous
Kenney, a member of the fugitive task force, had been looking for Jeffreys to arrest him on outstanding warrants, including one for violation of parole on an underlying assault and battery/dangerous weapon charge involving a firearm. Information received from several sources indicated that he was often in the company of Lungelow, who was the registered owner of the Dodge Magnum. Although his surveillance of Lungelow's residence and her mother's residence over the past few months had not lead to any sightings of Jeffreys, he still had reason to believe that conducting surveillance of the areas and vehicles associated with Lungelow would lead to same since they had a child together (who was living with Lungelow's mother in Massachusetts), had been together when Jeffreys was arrested in July 2010 in Massachusetts and were believed to be involved in prostitution business together. The trooper had also received information, in or about November 2011, indicating that other police departments in the Commonwealth were doing queries of the Dodge Magnum, suggesting that, even though it had been previously traveling in other areas along the East Coast, it was now back in Massachusetts. Exh. 10 at 4-5. Further, during the January 13th discussion with Kenney, Lungelow's mother mentioned that Jeffreys had wanted to spend Christmas at her house (which she had refused), also suggesting that Jeffreys may still be in the area. Exh. 10 at 5. Moreover, Kenney's observations on January 18th, which the Court credits, indicated that given the timing of seeing Lungelow on foot on the street and then seeing the Dodge drive by, the trooper had a reasonable belief that someone other than Lungelow may likely be driving the vehicle. Jeffreys questioned Kenney's credibility as to this testimony. It is true, as Jeffreys contends, D. 396-1, that Lungelow was later found in the car along with Jeffreys, but it does not answer whether Lungelow went to get the car or was picked up at some point during the time that Kenney lost sight of her on foot, particularly when Jeffreys is found, a short time later, to be driving. Kenney had more than a naked hunch that Jeffreys would be in the car stemming not just from the relationship between the two individuals and information about their traveling together and working together, but also from his sighting of Lungelow moments before. Once the stop was effected, its duration was reasonable in scope as it led first to the arrest and transport of Jeffreys on the outstanding warrants and then to the arrest and transport of Lungelow on an aiding and abetting a fugitive charge.
One of the exceptions to the warrant requirement for a search under the Fourth Amendment is an inventory search. Such search is non-investigatory and is executed under law enforcement's caretaking function. South Dakota v. Opperman, 428 U.S. 364, 369-71, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). It is an important function to catalog and track the owner's property while it is in police custody and protect the police against false
The officers' first caretaking function as to the vehicle was implicated by both the arrest of the two occupants of the car and then by Lungelow's assertion that there was a pitbull in the car. Based upon the arrest of both occupants, including Lungelow, the owner of the vehicle, the decision to tow the vehicle was a reasonable one given concerns about leaving the vehicle unattended and, as discussed below, was not in violation of the Boston Police policy. The Court credits that there was no search of the car prior to the arrival and inspection by animal control. Even after that inspection revealed that Lungelow had lied about the presence of the pitbull, it remains the case that the officers had a concern about the presence of a firearm. This concern was reasonably held not just because of Jeffreys' criminal history which involved a firearm, but because Lungelow had lied about the presence of the pitbull which could be reasonably thought to be dissuade the police from looking in the vehicle.
Even if the officers had a subjective intent to conduct an investigatory search, such intent does not convert a permissible inventory search in accordance with a standardized policy into an impermissible, warrantless search. United States v. Hawkins, 279 F.3d 83, 86 (1st Cir.2002) (rejecting the challenge to a search where the defendant alleged the inventory was a "ruse" to search for drugs because "[t]he subjective intent of the officers is not relevant so long as they conduct a search according to a standardized inventory policy"); see Coccia, 446 F.3d at 240 (concluding that there were legitimate community caretaking reasons for impoundment and no evidence that same were merely pretext). Here, even if Kenney's inventory search revealed items of an investigatory nature (clothes; papers in the names of associates) and later turned such items (or copies of same) over to a sergeant conducting a criminal investigation, it does not convert a permissible inventory search into an impermissible search.
Contrary to Jeffreys' argument, the inventory search conducted here was in accordance with the Boston Police Department policy, Exh. 5.
Having concluded that the motor vehicle stop and inventory search of the Dodge Magnum were proper, the Court does not have a basis to conclude that the later seized evidence (namely that seized as result of the subsequent search warrants)
For all of the aforementioned reasons, Jeffreys's motion to suppress, D. 345, is DENIED.
