USA v. Cummings

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. 	Case No. 20-cr-139-1-SM
Opinion No. 2022 DNH 053
Darvent E. Cummings
O R D E R
Defendant's motion to suppress evidence of unlawful drug
possession on grounds that it represents fruits of an
unconstitutional search of the rental car in which he was a
passenger (doc. no. 32) is denied.
Background
Crediting New Hampshire State Trooper Timothy Berky's
testimony, defendant was a passenger in a white Ford Fusion
travelling north on Interstate 95 in Hampton, New Hampshire, on
September 30, 2020. 	Trooper Berky observed the car as it passed
him. 	He noted that the driver was wearing a hooded shirt with
the hood up. 	He, curiously, thought that "unusual" — and that
the driver was somehow "trying to hide their identity." 	(The
driver was Hispanic.) 	Trooper Berky followed the car and, when
he got close enough, he ran the license plate through the State
Police Online Telecommunications System ("SPOTS"). 	The plate
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was from Maine, but the system reported that a Maine license
plate with that number was "not on file" as a valid Maine motor
vehicle registration. 	Trooper Berky made additional attempts to
search for the plate number, but each time it came back "not on
file." 	Trooper Berky decided to initiate a stop to investigate
what he suspected might be an unregistered vehicle being
operated on the highway.1
As the car was pulling over, Trooper Berky noticed the
passenger (defendant) moving about quickly, as if handling
something. 	Trooper Berky approached the car, identified
himself, and asked for the operator's driver's license and the
car's registration. 	In response, the driver, a young female,
told Berky that she did not have a license, thereby establishing
an obvious motor vehicle violation. 	Defendant gave Trooper
Berky his license, told him the car was a rental, but said a
1 Trooper Berky also said he noticed an air freshener product
hanging from the rearview mirror, swinging, which he thought
might obstruct the driver's forward view (N.H. Rev. Stat. Ann.
Ch. 269:95). 	He offered that circumstance, in addition to the
suspected invalid registration, as grounds for initiating a
traffic stop. 	I reject that ground, finding it, under these
circumstances, to be likely pretextual, at best. 	Every trivial
potential or arguable violation of a state's traffic code does
not ipso facto warrant a Terry stop intrusion, disrupting the
free travel of citizens on public roads and highways. 	Indeed
such offered grounds, if anything, add weight to claims that
what is actually happening is profiling of citizens based on
mere hunches and biases related to drug interdiction efforts.
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friend rented it for him and he did not have the rental
agreement.
Trooper Berky asked the driver to exit the car and move to
the rear so he could speak to her. 	She identified herself as
Alanna Reyes, from Bangor, Maine. 	She reiterated that she had
no license to drive and had never had one. 	Berky noticed that
the defendant seemed to be moving in the car and turning around
to see where the trooper was. 	He returned to the passenger
window to tell him to stop moving about, at which time defendant
produced the car's registration, which he had found. 	The car
was properly registered to the Enterprise car rental company.
The paper registration of course resolved any suspicion raised
by the STOPS's report of "not on file" with respect to the
plate. 	But, at that point, it was clear that the car had been
operated unlawfully by an unlicensed driver.
Trooper Berky returned to Ms. Reyes and asked where they
were travelling from. 	She said they were coming from Bangor.
But they were travelling northbound toward Bangor. 	Berky
suggested that she meant they were going to Bangor, to which
Reyes agreed. 	She then said they were coming from "a store,"
but she could not recall the name, which seemed suspicious to
Berky, given that it was three hours to Bangor — a long trip for
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a casual visit to a store that she could not recall. 	Reyes
volunteered that she and the defendant had actually been
visiting a friend of the defendant's. 	Trooper Berky asked Reyes
if there was anything illegal in the car and she said no. 	Berky
asked specifically if there were drugs in the car. 	Reyes began
to cry, claiming she did not know anything and was just driving.
Trooper Jeffrey Costa arrived to assist. 	Trooper Berky
returned to speak with the defendant while Costa stayed with
Reyes. 	Reyes asked Trooper Costa if she could be honest, and
then told him that she thought there were drugs in the car.
Reyes related that the defendant's girlfriend, Tia, asked her to
drive the defendant to New York City, and she knew Tia and the
defendant to be drug dealers in the Bangor area. 	She said she
saw the defendant put a black bag in the car when they left
Bangor, and, when they arrived in New York City he brought the
bag from the car into a residence they visited. 	She saw
defendant bring the black bag back to the car before they left
to return to Bangor. 	Reyes said she was not sure precisely
where the bag was located, but believed it to be in the car.
Trooper Costa summoned Berky, and Reyes told him that she knew
there were drugs in a black bag in the car but did not know
where it was, or what type or amount of drugs were in the bag.
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Trooper Berky asked Reyes for a consent to search the car,
which Reyes gave. 	Berky then asked the defendant if he had any
belongings in the car. 	He responded "no." 	Defendant was asked
to step out of the car, which he did, and the car was searched.
Inside the locked glove compartment Berky found a black bag
containing fentanyl.
Discussion
Defendant presents a number of arguments supporting his
contention that the inculpatory evidence seized from the car was
the product of an unconstitutional search, and, accordingly,
ought to be excluded at trial. 	He challenges the validity of
Reyes's consent to search, saying that it should have been
obvious that he, not she, was "in possession" of the rental car.
But that issue, as the government notes, need not be resolved,
given that, before the search, Reyes's statements and the
totality of the circumstances, plainly provided the officers
with probable cause to believe that illegal drugs were likely in
the car in a black bag. 	Reyes's travel information was
contradictory, she exhibited excessive nervousness and had an
emotional reaction when asked about illegal items in the car.
She volunteered that she knew defendant and Tia, his girlfriend,
to be drug dealers in the Bangor area, that Tia asked her to
drive the defendant to New York City and back, that the
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defendant took a black bag with him, and then into a residence
in New York City, and then back to the car for the return trip
to Maine. 	The indicia of a drug procurement trip by a drug
dealer were present, as related by a participant. 	Defendant's
suggestion that Reyes had credibility problems, having lied
about their travels, is a valid point to raise, but the troopers
were also entitled to weigh and assess the credibility of her
story as a whole. 	That story of a drug dealer travelling to New
York City to obtain drugs was reasonably assessed by Trooper
Berky as sufficiently credible for him to conclude that illegal
drugs were more likely than not to be found in a black bag in
the rental car Reyes was driving. 	That is, the troopers had
probable cause to search the car.
Defendant next argues that the initial motor vehicle stop
was unconstitutional in that Trooper Berky relied upon a faulty
and unreliable database to justify his "reasonable and
articulable" suspicion that the car was unregistered.
But Trooper Berky was not aware, when he initiated the
stop, that some Maine vehicle registrations are apparently not
promptly entered into the state's electronic database. 	While it
is not clear what percentage of new car registrations are
delayed by several weeks, it still seems that the vast majority
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of registrations are not delayed, since what delay occurs is a
function of some smaller towns' or cities' use of paper
documents which are then sent to the state's division of motor
vehicles for electronic data entry, while most do that locally.2
Even given that circumstance, a "not on file" return to a
Trooper's inquiry provides at least a substantial suspicion that
the car is not properly registered — that would be true in most,
though not all, cases, and certainly would support a brief Terry
stop to inquire and allay or confirm that suspicion. 	Production
of a valid registration would quickly and conclusively resolve
the matter with minimal intrusion — as it did here. 	The
electronic search system, and database, need not be perfect or
infallible. 	It is sufficient if it is reasonably reliable; this
is not a case in which arrests are being made based on the
database, but, rather, mere inquiry to allay a reasonable and
articulable suspicion.
2 As the government notes, it has supplemented its hearing
evidence with proffers of testimony it expects Maine
administrators would give regarding the workings of the state's
registration system and the associated electronic database. 	The
court is relying on those proffers here, but if defendant
challenges those proffers or believes other facts are relevant,
the suppression issue will be revisited at trial out of the
presence of the jury.
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In this case, however, the valid registration was not
produced when first requested, and when it was produced later,
the Trooper was already aware that the car was being driven
unlawfully by an unlicensed driver. 	And, the driver had
provided suspicious answers to routine questions, and, was
exhibiting suspicious behavior, and, had disclosed facts that
gave rise to probable cause to believe that she and the
defendant were returning from a drug procurement trip to New
York City, with illegal drugs in a black bag in the car.
Accordingly, the initial traffic stop was valid under Terry
v. Ohio, 392 U.S. 1 (1968). 	And, the unfolding events during
the stop permitted Trooper Berky to "shift his focus and
increase the scope of his investigation by degrees" as he was
confronted by the admission that the driver had no license, and
that she knew defendant to be a drug dealer, and that she and he
were involved at that moment in completing a drug run to New
York City. 	United States v. Chhien, 266 F. 3d 1, 6 (1st Cir.
2002). 	Ms. Reyes was unusually nervous and emotional and her
odd responses to routine inquiries warranted additional brief
inquiry. 	Her admission to Trooper Costa, repeated to Trooper
Berky, provided a reasonable, and inculpatory, explanation for
that nervousness, and her untruthful statements about their
travel routes and purposes. 	An objective and reasonable police
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officer in Trooper Berky's position would have understood the
totality of circumstances to support the conclusion that illegal
drugs were likely to be found in a black bag in the rental car.
Conclusion
Because the initial traffic stop was supported by
reasonable, articulable suspicion that the rental car was not
validly registered, and because the evolving circumstances after
the stop gave rise to probable cause to believe illegal drugs
were being transported in the car, and would likely be found in
the car, the evidence discovered and seized was not the product
of an unlawful search. 	The motion to exclude that evidence is
denied.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
April 12, 2022
cc: 	Seth R. Aframe, AUSA
John J. Kennedy, AUSA
Eric Wolpin, Esq.
U.S. Probation
U.S. Marshal
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