USA v. Sandler CR-92-81-B 12/30/92

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 92-81-1-B

Jonathan Sandler

O R D E R

Defendant Jonathan Sandler has been charged with possession

of marijuana with intent to distribute, in violation of Title

(a)(1). The court held a hearing on December 17, 1992

on the defendant's three motions to suppress.

FACTS

Approximately one year ago. Trooper Quinn of the New Hampshire

State Police Narcotics Unit and Agent Binsack of the Drug

Enforcement Administration ("DEA") were involved in a DEA

investigation which led to the arrest and conviction of the

informant in this case, Gary Bardsley. Bardsley later named the

defendant, Jonathan Sandler, as his supplier of marijuana and

agreed to work with Trooper Quinn and Agent Binsack in their

investigation of Sandler. Trooper Quinn and Agent Binsack devised a plan to convince

Sandler to bring marijuana to New Hampshire under the pretext that

Bardsley had a willing buyer for the marijuana. After several

telephone conversations between Bardsley and Sandler which were

recorded with Bardsley's permission, Bardsley was able to convince

Sandler to meet him in New Hampshire.

On September 16, 1992, Sandler called Bardsley's home and left

a message that he could be reached at the Susse Chalet Motel in

Tewksbury, Massachusetts. Trooper Quinn was able to confirm that

the telephone number Sandler had left with the message belonged to

the Susse Chalet. He then notified the Tewksbury police, who were

able to verify that a person fitting Sandler's description had

checked into the motel. Trooper Quinn then had Bardsley place a

recorded call to Sandler at the Susse Chalet. Trooper Quinn stood

beside Bardsley throughout the call and overheard Bardsley's end of

the conversation.

In the ensuing conversation, Sandler informed Bardsley that he

had brought "fifty" with him from Texas and that he had already

sold most of it. He claimed that he had approximately "five" left

to sell that were "all bud." Bardsley and Sandler then agreed to

meet at the 99 Restaurant in Salem, New Hampshire that night to

complete the sale. Trooper Quinn listened to the tape of this call

as he traveled to Salem where the meeting between Sandler and

Bardsley would take place.

Prior to the meeting, Bardsley was fitted with a tape recorder

and a monitoring device so that his conversation with Sandler could

- 2 - be both recorded and overheard by Trooper Quinn and the other

investigators. The trooper who had been designated to play the

role of the buyer then drove Bardsley to the parking lot of the 99

Restaurant.

When Bardsley and Sandler met in the parking lot, Sandler

invited Bardsley into his automobile. Through the monitoring

device. Trooper Quinn was able to hear Sandler tell Bardsley that

"the marijuana was close by." Sandler then took Bardsley back to

the Susse Chalet.

After they entered Sandler's motel room. Trooper Quinn heard

the sound of Sandler and Bardsley "rummaging" through what he

believed to be a package of marijuana. Bardsley and Sandler left

the motel shortly after arriving and drove back to the parking lot

of the 99 Restaurant.

Earlier that evening, Bardsley and Trooper Quinn had agreed

that if the marijuana was inside the vehicle when Sandler got to

the 99 Restaurant, Bardsley would signal the police by leaving the

vehicle and walking briskly towards the restaurant. If he walked

slowly, the police would know that the marijuana was not in the

vehicle. Once Bardsley and Sandler returned to the parking lot,

Bardsley left the vehicle and gave the agreed-upon signal. The

investigators then arrested Sandler as he made his way towards the

restaurant.

After Sandler was arrested, Bardsley informed Trooper Quinn

that the marijuana was on the floor of Sandler's vehicle near the

front seat. The investigators then searched the vehicle and found

- 3 - five pounds of marijuana in a bag on the floor of the front seat.

The investigators also searched Sandler's motel room and made

certain observations. They later obtained a warrant, returned to

the room and seized cash, marijuana and drug paraphernalia.

DISCUSSION

Sandler contends that evidence concerning his recorded

conversations with Bardsley should be suppressed because his

conversations were intercepted in violation of Massachusetts and

New Hampshire law. He further contends that without the

intercepted communications, the investigators lacked probable cause

to arrest him or to search the vehicle. Finally, he argues the

search of his vehicle was improper because the investigators failed

to obtain a search warrant for the vehicle. The court does not

find these arguments persuasive.1

THE INTERCEPTED COMMUNICATIONS

Sandler does not contend that his conversations with Bardsley

were intercepted in violation of federal law. Nevertheless, he

argues that evidence concerning the conversations should be

suppressed because the conversations were intercepted in violation

1 Sandler also contends that evidence obtained during the search of his Susse Chalet motel room should be suppressed. The government has agreed that it will not seek to introduce any of the evidence seized from the motel room as part of its case-in- chief. Therefore, the court need not address the defendant's motion to suppress at this time. See e.g.. United States v. Havens,

(1980); Walder v. United States,

(1954) .

- 4 - of state law.

Sandler's claim is controlled by United States v. Sutherland,

(1st Cir. 1991) . In Sutherland, the First

Circuit Court of Appeals rejected an argument similar to the one

Sandler makes in this case and held that the admissibility of

wiretap evidence in a federal proceeding is governed by federal

law.

The only circumstance under which the Sutherland court

suggested that a federal court may exclude evidence obtained in

violation of state law but not federal law is ". . . i n an extreme

case of flagrant abuse of the law by state officials, where federal

officials seek to capitalize on that abuse . . . ."

.

Sandler contends that Trooper Quinn's conduct was an extreme

case of flagrant abuse of state law because he was not acting under

the supervision of a federal law enforcement official when he

caused Sandler's communications to be intercepted and because he

violated the wiretap laws of two states. The court finds that

these arguments are both factually and legally incorrect. Contrary

to Sandler's assertions, the evidence produced at the suppression

hearing established that Trooper Quinn conducted his investigation

in close cooperation with federal officials. Agent Binsack helped

Trooper Quinn develop the plan to arrest Sandler, she was consulted

at every step of the investigation, and she was present when

Sandler was arrested. The court cannot accept Sandler's contention

that the intercepted communications should be suppressed because

state police officers, rather than Agent Binsack, attached the

monitoring devices to Bardsley's telephone and person. Moreover,

- 5 - the case is devoid of any evidence of an extreme and flagrant abuse

of state law by Trooper Quinn. Even if he had not been engaged in

a joint investigation with federal officials when he caused

Sandler's communications with Bardsley to be intercepted. Trooper

Quinn's conduct was not any more flagrant or extreme than the

conduct at issue in Sutherland. The mere fact that conversations

were intercepted in two states in the present case does not

distinguish this case from Sutherland. Accordingly, the court

declines to suppress the evidence of Sandler's intercepted

conversations.

________________________ THE VEHICLE SEARCH

Sandler contends that the marijuana seized from his automobile

should be suppressed because the government lacked both probable

cause and a warrant to search his vehicle.

The court has already held that the intercepted communications

may be used in the government's case against Sandler. For the same

reasons, the court rejects Sandler's claims that they cannot be

relied upon to support a finding of probable cause to search his

automobile.

When the intercepted communications are considered, there was

ample probable cause to support the search of his vehicle. Through

the intercepted communications. Trooper Quinn was able to confirm

that Sandler was planning to bring a substantial guantity of

marijuana with him to the parking lot of the 99 Restaurant. In

Bardsley's telephone call with Sandler several hours prior to his

- 6 - arrest, Sandler stated that he had "five" left to sell that were

"all bud," a phrase known by Trooper Quinn to describe marijuana.

The conversation and sounds Trooper Quinn overheard on the

monitoring device while Bardsley and Sandler were driving from the

99 Restaurant to Sandler's hotel and back served as confirmation

that the expected marijuana sale was proceeding according to plan.

Finally, Bardsley's signal that the marijuana was in the car after

Sandler and Bardsley got back to the 99 Restaurant established that

the marijuana was in Sandler's vehicle. Under the totality of the

circumstances, there can be little doubt that Trooper Quinn and his

colleagues had probable cause to search his vehicle. See e.g..

Gates v. Illinois, 4

(1983); United States v.

Maguire,

(1st Cir. 1990); cert, denied

(1991) .

The court also rejects Sandler's argument that the vehicle

search was improper because it was not conducted pursuant to a

validly obtained search warrant. The government does not reguire

a warrant to search a vehicle located in a public place if the

government has probable cause. California v. Acevedo,

(1991); United States v. Ross,

(1982).

Sandler argues that the automobile exception to the warrant

reguirement is inapplicable because he was not in the vehicle when

he was arrested and because the vehicle was parked and locked when

it was searched. These arguments simply have no support in the

case law. Exigency and the defendant's close proximity to the

vehicle at the time of the search are not necessary to justify a

- 7 - warrantless automobile search. See United States v. Johns,

(1985); United States v. Panitz,

(1st Cir. 1990). Accordingly, the court denies Sandler's

motion to suppress the warrantless search of his automobile.2

______________________ THE DEFENDANT'S PERSON

The same evidence which provided probable cause to search

Sandler's vehicle provided probable cause to support his arrest.

The warrantless search of the defendant's person was thus

permissible as a search incident to his lawful arrest. United

States v. Robinson,

(1973); Maguire,

.

CONCLUSION

Sandler's motion to suppress tape recordings of oral

communications (document no. 18) and motion to suppress warrantless

search of the defendant's person and motor vehicle (document no.

16) are denied. Because the government has agreed not to seek to

introduce evidence obtained from the search of the defendant's

motel room in its case-in-chief, the court need not rule on this

motion (document no. 17) .

2 The court need not determine whether the search of Sandler's vehicle was a lawful search incident to arrest since the court has concluded that the search was permitted under the automobile exception. SO ORDERED.

Paul Barbadoro United States District Judge

December 28, 1992

cc: Thomas J. Gleason, Esquire U.S. Attorney U.S. Probation U.S. Marshal