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United States v. Joseph

United States District Court, M.D. Louisiana

August 7, 2017




         Before the Court is the Motion to Suppress Evidence (Doc. 27) and the Motion to Strike (Doc. 41) filed by Ricardo J. Joseph (“Defendant”). In his suppression motion, Defendant seeks to exclude evidence and inculpatory statements made after an alleged unconstitutional detention. (Doc. 27). Defendant also challenges the sworn statements attached to the United States of America's (“the Government”) post-trial submission, arguing that the Court's consideration of this evidence would violate his Sixth Amendment right and certain of the Federal Rules of Evidence. (Doc. 41 at p. 3). The Government filed memoranda in opposition to Defendant's motions. (Docs. 29, 42). An evidentiary hearing on the motion to suppress was held on May 24, 2017. At the hearing, the Court heard testimony from Defendant and Corporal Nicholas Collins (“Cpl. Collins”) of the Baton Rouge Police Department. Pursuant the Court's order, the parties submitted post-trial briefs on July 7, 2017. For the reasons that follow, Defendant's motions are DENIED.

         I. BACKGROUND

         On September 13, 2016, at approximately 6:00 p.m., Defendant was travelling eastbound on Washington Avenue in Baton Rouge, Louisiana, in a grey 2017 Jeep Compass when Cpl. Collins observed Defendant not wearing a seatbelt.[1] Before initiating the stop, Cpl. Collins entered the license plate number of Defendant's car into the computer database, but he did not wait for the results. Cpl. Collins then initiated a traffic stop. When Cpl. Collins exited the vehicle and approached Defendant, he smelled a strong odor of marijuana. After introducing himself to Defendant, Defendant advised Cpl. Collins that he had a gun under the passenger seat inside the car.

         Cpl. Collins then removed Defendant from the vehicle and performed a pat-down search for weapons. Defendant was placed in handcuffs and secured in the backseat of the police unit. Cpl. Collins then returned to the vehicle and recovered a Ruger 9mm pistol from underneath the passenger seat, eight grams of “high grade” marijuana found in a prescription bottle in the center console cup holder of the car, and three separate baggies of cocaine from the rear-left passenger door. Cpl. Collins advised Defendant of his Miranda rights and retrieved the results of the license plate search on the vehicle Defendant was driving, which Cpl. Collins then learned was reported stolen a few days prior. Defendant stated that he borrowed the vehicle from a friend, but failed to identify his friend when questioned by police officers.

         On November 12, 2016, a federal grand jury returned an Indictment charging Defendant with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and one count of possession of controlled substances in violation of 21 U.S.C. § 844(a). (See Doc. 1).



         After the evidentiary hearing on Defendant's motion to suppress, the Court instructed the parties to submit post-trial briefs, and to specifically address two discrete issues. The first issue was whether there were any radio transmissions or other location data that might clarify the number of police officers who were at the scene when Defendant was initially stopped.[2] (Doc. 38 at pp. 74-75). The second issue concerned whether the grade of marijuana with which Defendant was charged could produce an odor that would emanate beyond a sealed prescription bottle.[3] (Doc. 38 at pp. 77-78). In support of its post-trial brief, the Government submitted affidavits completed by Baton Rouge Police Department Sergeant Jeffrey Pittman and ATF Special Agent Mark Lusco, both of whom verified Cpl. Collins' testimony that the grade of marijuana Defendant was transporting would produce a discernable odor from inside a sealed prescription bottle. (See Docs. 40-4, 40-5).

         In his motion to strike, Defendant challenges the admissibility of the affidavits submitted by Sgt. Pittman and S.A. Lusco. (Doc. 41 at p. 1). Defendant argues the Federal Rules of Evidence, and specifically Rule 702, require that their affidavits be excluded from consideration by the Court (1) because neither of the law enforcement officers were present at the traffic stop, and (2) because neither was called on to testify at the evidentiary hearing or was otherwise available to be subjected to a Daubert examination before delivering their opinions on Cpl. Collins' ability to smell marijuana in Defendant's car, . (Doc. 41 at p. 2). Defendant further urges that because the officers were not previously subject to cross-examination by Defendant, the Confrontation Clause of the Sixth Amendment prohibits the Court from considering their affidavits in ruling on Defendant's motion to suppress. (Doc. 41 at pp. 2-3).

         The Government counters that Defendant's arguments are without merit because (1) the United States Supreme Court's ruling in Crawford v. Washington, 541 U.S. 36 (2004), and the Confrontation Clause create a trial right that has not been found applicable to pretrial proceedings, and (2) the Court is not bound by the Federal Rules of Evidence when deciding preliminary questions about whether evidence is admissible. (Doc. 42 at pp. 1-2).

         After reviewing the law and the arguments presented by both parties, the Court finds Defendant's arguments unavailing. First, as the Government correctly notes, Federal Rule of Evidence (“Rule”) 104 makes clear that “the [C]ourt is not bound by evidence rules, except those on privilege” when deciding a preliminary question about whether evidence is admissible. F.R.E. 104(a); see also United States v. Posado, 57 F.3d 428, 435 (5th Cir. 1995) (“We have consistently held that the rules of evidence are related in pretrial suppression hearings.”). Defendant's objections to the affidavits do not concern privilege, but rather the reliability of the affiants' opinions. As such, the Court is free to consider the opinions offered in the attached affidavits in determining how to rule on Defendant's motion to suppress. Accordingly, Defendant's arguments under Federal Rule of Evidence (“Rule”) 702 and Daubert are without merit. Defendant's Crawford argument must fail for a similar reason. Although the Supreme Court held in Crawford that the Confrontation Clause bars the admission of “testimonial statements” made by a non-testifying witness-unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him, Crawford, 541 U.S. at 59-neither the Supreme Court nor the United States Court of Appeals for the Fifth Circuit has ever held that the right to confrontation applies to pretrial proceedings. See United States v. Morgan, 505 F.3d 332, 338 (5th Cir. 2007) (noting that “the Fifth Circuit has not decided whether Crawford applies to pretrial proceedings and determinations”); see also United States v. Bedoy, 827 F.3d 495, 512 (5th Cir. 2016) (noting that Crawford's strictures do not govern the preliminary determination of the admissibility of evidence in preliminary matters). Absent controlling authority that Crawford applies to a suppression hearing-in which the overall question is whether challenged evidence is admissible at trial-the Court holds that it does not apply.

         Notwithstanding, the Court finds that the opinions presented in the disputed affidavits do not bear directly on any issue that might inform the Court's ruling on Defendant's motion to suppress. The Court has reviewed all of the pleadings presented, as well as the arguments contained therein and the evidence submitted in support of those pleadings. The undersigned is satisfied that Cpl. Collins, as a detective in the Narcotics Division of the Baton Rouge Police Department and a former canine handler for the Street Crimes Unit, testified credibly about his ability to detect the raw marijuana Defendant was charged with possessing. Accordingly, the Court will not consider the affidavits when ruling on Defendant's suppression motion. Therefore, Defendant's motion to strike is GRANTED.

         B. ...

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