UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Case No. 14-cr-130-1-SM Opinion No.

Robert L. Pierre, Defendant

O R D E R

Defendant, Robert Pierre, moves to suppress evidence he says

was obtained during an unconstitutional search and seizure of his

person and automobile. Having considered the evidence presented

at a suppression hearing, the briefs filed by the parties, and

the argument of counsel, the court denies the defendant’s motion

to suppress evidence (document no. 12).

Findings of Fact

On February 1, 2014 at approximately 12:27 a.m., New

Hampshire State Police Trooper Haden Wilber stopped a 2002 Volvo

S60 in the vicinity of the University of New Hampshire, near

Routes 4 and 155 in Durham. The car was being operated by the

defendant, Robert Pierre, and it was registered in New Hampshire.

Trooper Wilber was sitting in his cruiser, perpendicular to

the road, and was “monitoring . . . the flow of traffic.” He watched the defendant’s vehicle drive by at a distance of

approximately 25 feet, traveling approximately 40 miles per hour.

Trooper Wilber observed that the driver’s side window was darkly

tinted and he could not see the driver as the vehicle passed

him.1 He testified that the window was much darker than those on

other cars he observed. Suspecting that the defendant’s window

tinting violated New Hampshire law, the trooper pulled out and

signaled the defendant to pull over, by activating his blue

lights.

Trooper Wilber testified that as he caught up with the

defendant’s vehicle, it swerved to the right, sped up

momentarily, then stopped abruptly. As he approached the car,

the defendant opened his door and explained that the driver’s

side window would not roll down. Trooper Wilber observed Pierre,

an African-American male in his 20s, seated behind the wheel.

There were no passengers. Wilber testified that he smelled the

“distinct odor of fresh marijuana” coming from inside the

passenger compartment of the vehicle when the defendant opened

the door.

1 Trooper Wilber wrote in his report that he “observed the front windows to the right and left of the driver were extremely tinted . . . .” Trooper Wilber clarified in his testimony that he observed the tint only on the driver’s side window before he stopped the vehicle and observed that the passenger’s side window was also tinted once he approached the vehicle.

2 Trooper Wilber asked Pierre for his license and

registration, which he provided. Upon questioning, Pierre told

Trooper Wilber that he had been at Chili’s in Dover and was

heading to a friend’s house in Durham. Pierre was not nervous

when they first spoke, and his car was clean and orderly. Wilber

took Pierre’s identification and returned to his cruiser to run a

records check. The records check disclosed that Pierre possessed

a valid driver’s license, the vehicle was properly registered,

and there were no outstanding warrants. The records check also

revealed that Pierre had previously been stopped, on August 26,

2012, and that a search conducted at that time revealed a glass

jar containing marijuana and a loaded 9mm handgun in his car.

Pierre was charged, on that occasion, with being a felon in

possession of a firearm in the Rockingham County Superior Court,

Docket No. 13-CR-00206.

Based on his having smelled fresh marijuana, and given the

circumstances of Pierre’s prior arrest, Trooper Wilber returned

to the vehicle and ordered Pierre out of the car to conduct a

brief Terry search for weapons. Pierre readily complied.

Trooper Wilber did not find a weapon but felt what he believed to

be a “wad” of cash in Pierre’s left pocket. Wilber asked Pierre

if he recently got paid from work to which Pierre answered “no.”

Wilber then asked Pierre how he got the cash. Pierre declined to

3 discuss his personal life. Trooper Wilber then asked Pierre how

much money he had in his pocket. Pierre first estimated that he

had $1,000.00, then clarified that he had $1,300.00 in his

pocket.

After briefly questioning Pierre, Trooper Wilber informed

him that he had smelled the odor of fresh marijuana coming from

inside the passenger compartment of the car when Pierre opened

the door. When confronted, Pierre’s demeanor changed. He became

“animated and nervous,” raised his voice, clenched his fists, and

avoided eye contact. Pierre stated that he did not understand

what was going on, and denied Wilber’s request to search his

vehicle.

Suspecting the presence of illegal drugs (marijuana), and

over Pierre’s objection, Trooper Wilber impounded (seized) the

car. Pierre was not arrested and left the scene, apparently

walking to a friend’s house in Durham. While waiting for a tow

truck, Trooper Wilber used his flashlight to look through the

passenger’s side window of the vehicle, which was also darkly

tinted. He saw a small piece of plastic, the corner of a larger

plastic baggie, on the floorboard. Trooper Wilber believed this

to be a “corner bag” commonly used to package and distribute

drugs. Additionally, Trooper Wilber reported that he walked to

4 the vehicle’s trunk after Pierre left the scene and could smell

the odor of fresh marijuana emanating from the trunk.

When the tow truck arrived, Trooper Wilber escorted the

vehicle to the New Hampshire State Police Troop A barracks.

Trooper Gary Ingham and his canine partner, Grunt, performed a

drug sniff on the exterior of the vehicle at the barracks, about

seven hours after the stop. Grunt alerted on the trunk of the

vehicle but not on the passenger compartment. Later in the day,

at approximately 5:36 p.m., a state court judge issued a warrant

to search the vehicle, and, at approximately 8:24 p.m., Trooper

Wilber and another trooper executed that warrant. In the

passenger compartment they found a black Guess jacket on the

front passenger seat. In the jacket pockets they found 7 pills

in a clear bag, a second clear bag containing cocaine, a third

clear plastic bag containing either methylone and/or cocaine

base, and a small scale. Inside the trunk, they found a black

Adidas drawstring bag and a dark North Face backpack. Inside the

closed Adidas bag was a black leather Gucci handbag with a

zipper. Inside the zipped-up Gucci bag, they found nearly an

ounce of fresh marijuana wrapped inside three separate plastic

bags, which were inside another plastic bag. They also found

approximately 2.5 grams of heroin and a tan, rock-like substance

that was either cocaine base or methylone. In the backpack, they

5 found a plastic bag containing methylone and/or cocaine base, two

small digital scales, one containing marijuana residue, and a

white trash bag containing a Taurus .22 caliber handgun.

The defendant was charged with one count of possession of a

firearm by a convicted felon in violation of

(g)(1); one count of possession of a controlled substance with

intent to distribute cocaine, cocaine base, and heroin in

violation of

(a)(1) and (b)(1)(C); and one count

of possession with intent to distribute methylone in violation of

§ 841(a)(1). The defendant moved to suppress all the seized

evidence as the product of an unconstitutional seizure and

search. The court held a hearing on the defendant’s motion on

January 29, 2015, during which the court called for additional

briefing. The parties filed supplemental memoranda on February

13 and 17, 2015.

Discussion

The defendant challenges the legality of the initial traffic

stop, his detention, the seizure of his vehicle, and the search

conducted pursuant to the search warrant.

A traffic stop and detention of an automobile’s occupants

amounts to a seizure under the Fourth Amendment. United States

6 v. Jones,

(1st Cir. 2012) (citing Whren v.

United States,

, 809–10 (1996)). All such seizures

must be “reasonable,” U.S. Const. Amend. IV, and police officers

conducting an investigatory stop must have at least “reasonable

suspicion” that criminal activity is afoot. Jones,

. An officer “‘must be able to point to specific and

articulable facts which, taken together with rational inferences

from those facts,’ justify an intrusion on a private person.”

(quoting Terry v. Ohio,

(1968)). Officers'

“hunches,” unsupported by articulable facts, cannot substitute

for reasonable suspicion.

(quoting Terry,

).

When deciding whether an officer had reasonable suspicion

warranting a brief investigatory detention, a court looks to the

facts “available to the officer at the moment of the seizure or

the search.”

A court then must assess the “totality of the

circumstances” to determine whether the officer had a

particularized, objective basis for his or her suspicion. Jones,

(quoting United States v. Arvizu,

(2002)).

If the officer goes beyond a brief investigatory stop and

actually searches or seizes a vehicle in the absence of a

warrant, the officer must have “probable cause to believe that

7 the vehicle contain[s] evidence of crime in the light of an

exigency arising out of the likely disappearance of the vehicle.”

California v. Acevedo,

(1991). The

government bears the burden of proving that the officers had

probable cause to seize or search a vehicle in the absence of a

valid search warrant. United States v. Lopez,

(1st Cir. 2004).

Turning to the stop and seizure at issue here, “review of a

Terry stop involves a two-step analysis.” United States v.

Mouscardy,

(1st Cir. 2013). The court must first

“ascertain whether the stop was justified at its inception” and

second “determine whether the actions undertaken during the stop

[were] reasonably related in scope to the stop itself unless the

police [had] a basis for expanding their investigation.”

(internal citations and quotations omitted) (alterations in

original).

Even a minor traffic violation, like the alleged illegal

window tinting in this case, will justify an officer in

conducting an investigatory traffic stop. Topp v. Wolkowski,

(1st Cir. 1993); Bailey v. McCarthy, No. 01-82,

, at *16-*18 (D. Me. Jan. 25, 2002); United

States v. Levesque, No. 94-cr-120,

,

8 at *12 (D.N.H. July 11, 1995). In this case, the evidence

establishes that as Pierre drove by, Trooper Wilber plainly saw a

vehicle bearing New Hampshire license plates (and, therefore,

subject to New Hampshire’s window-tinting laws) with a driver’s

side window tinted noticeably darker than the windows of the

other cars on the road that night, and darker than those that

Trooper Wilber generally saw on New Hampshire roads during his

extensive daily patrols. Trooper Wilber testified that Pierre’s

driver’s side window was “extremely tinted, to the point where I

could not see the driver inside,” despite his headlights shining

such that he could see through the driver’s side windows of the

other cars passing by that night. (Tr. at 16.)

Trooper Wilber stopped Pierre’s vehicle because he suspected

that its window tint violated New Hampshire law, which provides,

in relevant part: “It shall be unlawful to drive on any way any

motor vehicle registered in this state which has after market

tinting on the windshield or on the windows to the left and right

of the driver . . . .” N.H. Rev. Stat. Ann. 266:58-a(III).

Trooper Wilber testified, credibly, that he suspected that the

windows were illegally tinted because they were darker than “all

the vehicles . . . with New Hampshire plates” that he had seen on

the roads in his experience in law enforcement.

9 Interpreting a similar Pennsylvania statute permitting

window tinting if it is installed by the original equipment

manufacturer but not if it is installed after market, the Third

Circuit held, “Regardless of whether [the defendant’s] tinted

windows were installed by the manufacturer of his vehicle, the

window tint provided reasonable suspicion justifying the stop.”

United States v. Hall,

(3d Cir. 2008).

This, the court in Hall reasoned, is because the “reasonable

suspicion analysis does not deal with hard certainties, but with

probabilities . . . .”

(internal quotation marks and

citations omitted). Further, “as long as an objective review of

the record evidence establishes reasonable grounds to conclude

that the stopped individual has in fact violated [a] traffic-code

provision, the stop is constitutional even if the officer is

mistaken about the scope of activities actually proscribed

. . . .”

(internal quotation marks and citations omitted).

Similarly here, even if Trooper Wilber was mistaken about

what New Hampshire law prohibits (e.g., not all tint but only

?after-market applied tint” is prohibited), or about whether the

dark tint on Pierre’s vehicles was applied after market, the stop

still did not violate the Constitution. Given the degree of tint

as Wilber saw it — that is, sufficient to prevent him from seeing

the driver inside — it was objectively reasonable for him to

10 suspect that the tint may have been applied after market and, as

such, that it violated New Hampshire law.2 See id.; Heien v.

North Carolina,

(2014) (holding that the

“Fourth Amendment tolerates only reasonable mistakes, and those

mistakes — whether of fact or of law — must be objectively

reasonable.”)

Because it was objectively reasonable for Trooper Wilber to

suspect that Pierre’s darker than usual window tint violated New

Hampshire law, see N.H. Rev. Stat. Ann. 266:58-a, the first prong

2 Federal regulations governing the permissible degree of window tint state in relevant part: “Coloring or tinting of windshield and the windows to the immediate right and left of the driver is allowed, provided the parallel luminous transmittance through the colored or tinted glazing is not less than 70 percent of the light at normal incidence in those portions of the windshield or windows which are marked as having a parallel luminous transmittance of not less than 70 percent.” 49 C.F.R. 393.60(c). Neither the Government nor the defendant cited to this regulation in their initial papers. Trooper Wilber testified at the suppression hearing that he was not aware of any federal regulation of the degree of window tint that original equipment manufacturers may apply. (Tr. at 71-72.) However, Trooper Wilber’s subjective understanding of the law and facts is not the standard. Cf. Heien v. North Carolina,

(2014) (citing Whren v. United States,

(1996)). Rather, the court considers and determines whether an objectively reasonable officer could have reasonably thought that the defendant’s window tinting constituted a traffic code violation.

Where, as here, the defendant’s windows were tinted such that Trooper Wilber could not see the operator, the court concludes that an objectively reasonable officer could have reasonably believed that a traffic code violation was being committed.

11 of the two part test is satisfied. The initial detention of the

car and its occupant was justified at its inception.3

The government does not argue, of course, that the

approximately seven hours attributable to Trooper Wilber’s

impounding the defendant’s vehicle and transporting it to the

Troop A Police Barracks, prior to the dog sniff that occurred at

7:30 a.m., was time reasonably related to the traffic stop.

Plainly, the initial "investigatory stop" had matured into a

seizure requiring probable cause. So, the next issue becomes

whether the government has met its burden to show that Trooper

Wilber had probable cause to seize Pierre’s vehicle without a

warrant.

Trooper Wilber testified, credibly, during the suppression

hearing that he smelled the “distinct odor of fresh marijuana”

coming from inside the passenger compartment of the vehicle when

the defendant opened his door. Trooper Wilber recognized the

3 It was also reasonable for Trooper Wilber to take and run Pierre’s identification. See United States v. Henderson,

(1st Cir. 2006). Where obtaining identification and running criminal history checks on a driver extends the traffic stop by only about 5 minutes, officers do not unduly extend the time of the traffic stop. See United States v. Fernandez,

(1st Cir. 2010); United States v. Chaney,

(1st Cir. 2009).

12 smell based upon his training and experience, having conducted

over a hundred drug-related traffic stops.4

Trooper Wilber’s credible contention that he smelled fresh

marijuana emanating from the defendant’s car “provide[s] probable

cause for a search of the car for any narcotics.” United States

v. Taylor,

(1st Cir. 1998); see also United

States v. Staula,

(1st Cir. 1996) (“The case law

is consistent that when a law enforcement officer detects the

odor of marijuana emanating from a confined area, such as the

passenger compartment of a motor vehicle, that olfactory evidence

furnishes the officer with probable cause to conduct a search of

the confined area.”). See generally U.S. v. Ross,

(1982). ("If probable cause justifies the search of a

lawfully stopped vehicle, it justifies the search of every part

of the vehicle and its contents that may conceal the object of

the search.").

The defendant counters that it was not possible for Trooper

Wilber to smell fresh marijuana emanating from the defendant’s

4 The court necessarily rejects the defendant’s argument based on Franks v. Delaware,

(1978). In support of the warrant application Trooper Wilber testified credibly, and the record evidence does not establish that any false material statement was contained in the supporting affidavit.

13 vehicle, primarily because the only marijuana found as a result

of the search of the defendant’s car amounted to less than one

ounce, divided into three sealed plastic baggies that were inside

several other bags, inside a closed trunk, with no evidence of a

broken seal. That is likely true — it would be astounding, one

would suspect, if Trooper Wilber could have smelled that

marijuana at that time given its packaging and location. But the

point is not dispositive.

In a similar case recently decided in the Eleventh Circuit,

the court upheld a warrantless search of a vehicle based on the

smell of fresh marijuana emanating through an open window, even

though the only marijuana later found was contained in a plastic

bag inside the trunk. United States v. Smith, No. 14-11852,

(11th Cir. Jan. 5, 2015). The court in Smith

declined the defendant’s invitation to speculate on whether the

marijuana in the trunk was detectable by the officer from outside

the car because it was “possible that the marijuana could have

been in the passenger cabin immediately before the officer

approached the car . . . leaving a lingering odor.” Id. at *6.

Similarly, in this case, while Trooper Wilber’s claim to

have smelled fresh marijuana when the defendant opened the car

door might seem implausible at first, given the absence of fresh

14 marijuana in the passenger compartment, there is record evidence

here which tends to corroborate that claim.

The facts strongly suggest that defendant was actively

engaged in dealing drugs. He possessed $1,300.00 in cash. The

subsequent search of the car, pursuant to the search warrant,

revealed nearly an ounce of marijuana in the trunk wrapped in

individual (distributable) packages, scales (for weighing

product), one scale containing marijuana residue, significant

quantities of other controlled substances, and a firearm. And, a

corner baggie, often used to package drugs for distribution, was

found in the passenger compartment. From this evidence, it is

reasonable to infer that the packaged marijuana (and, perhaps,

additional marijuana) had at some recent point been in the

passenger compartment, and that dealing in marijuana had occurred

in the passenger compartment of the car. Trooper Wilber’s claim

to have smelled the odor of fresh marijuana when defendant opened

his car door is neither "impossible" nor facially unreasonable.

The lingering smell of fresh marijuana (an issue not fully

developed by either side) cannot be ruled out under these

circumstances. Where a trained officer credibly testifies that

he smelled fresh marijuana, and the facts tend to corroborate

that olfactory claim as being plausible, the officer’s honest

perception is sufficient to establish probable cause to seize the

15 vehicle, pending an application for a search warrant, as occurred

here.

The defendant also challenges whether Trooper Wilber smelled

fresh marijuana emanating from the car on grounds that, had there

been such a smell, the drug canine would necessarily have alerted

to the passenger compartment when he later sniffed the exterior

of the vehicle, approximately seven hours later. While that

argument has some appeal, there is no evidence in this record

relating to the dissipation of fresh marijuana odors, but it is

clear that approximately seven hours had passed since Trooper

Wilber smelled fresh marijuana coming from the passenger

compartment, before the canine alerted at the trunk of the car.

In addition, the smell may have been more concentrated on the

defendant’s clothes when Trooper Wilber perceived it; the

defendant was not present seven hours later.

The record could have been developed in greater detail, on

either side, but, in the end, the Trooper’s credible testimony

that he smelled fresh marijuana when Pierre opened the car door —

a claim whose plausibility tends to be corroborated by the later

discovered facts — established probable cause to seize Pierre’s

car and detain it while the officer sought a search warrant. The

court concludes that the warrant Trooper Wilber subsequently

16 obtained was valid, as was the ensuing search. Consequently, the

evidence against Pierre was seized within the bounds of the

Constitution.

Conclusion

For the reasons given, defendant’s motion to suppress

evidence (document no. 12) is denied.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

April 17, 2015

cc: Jonathan R. Saxe, Esq. Debra M. Walsh, Esq. U.S. Probation U.S. Marshal

17