United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
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.
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. 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.
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.
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).
MOTION TO STRIKE
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. (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. (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).
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).
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).
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.
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.