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United States v. McCluer

May 11, 2010



This matter was on calendar on April 8, 2010 for argument on the government's motion for reconsideration of this court's order of February 24, 2010, which granted defendant's motion to suppress evidence. Erin J. Radekin, Attorney at Law, appeared for defendant, who was present. Matthew Stegman, Assistant United States Attorney, and Matthew P. De Moura, Certified Law Student, appeared for the government.

I. Background

Defendant filed his motion to suppress evidence on December 28, 2009, arguing that defendant was detained unlawfully and that his act of turning over marijuana to Officer Marcus was the fruit of the unlawful detention. He based his argument on Officer Marcus's probable cause statement and on a DVD of the encounter, which he lodged as an exhibit. Mot. to Suppress (Docket No. 10).

The government opposed the motion, arguing at length that no evidentiary hearing was warranted because there were no disputed issues of fact. Opp'n (Docket No. 14) at 4-6. It "stipulate[d] to the facts set forth in Defendant's Exhibit A [the probable cause statement] and the video...." Id. at 6. In reply, defendant agreed that the facts necessary to the resolution of the motion were available from the video of the encounter, but disputed some of the government's factual assertions and legal conclusions. Reply (Docket No. 16) at 3-4.

On February 4, at hearing on the motion to suppress, the court asked the parties if they were ready to proceed to evidentiary hearing. RT 1. The government said it was "prepared to submit on the DVD and the probable cause statement." RT 2. Defense counsel was also "prepared to submit," because "the materials submitted are sufficient, especially since there is a DVD showing the entire encounter." Id.

During the subsequent argument on the motion, the government urged that the materials on other cases submitted by the defense showed "Officer Marcus's training an [sic] experience,...substantial experience with controlled substance matters. so he's able to identify the signs of being under the influence of a controlled substance...." RT 10. The court asked "what in the record" supported that claim and then whether the court could "infer the training and experience from what's contained in the probable cause statement." Id. The government responded that it was the probable cause statement in this case and the additional probable cause statements provided by the defense in an attempt to prove Officer Marcus's alleged modus operandi in drug investigations. Id.

When questioned about Officer Marcus's description of defendant's wife, Ms. Manning, as hiding something on the ground, counsel for the government said that "defendant's wife sort of look[s] around on the ground where the incense is, it's burning almost to be searching, not necessarily hiding, that was a misstatement on the government's part." RT 23-24. He noted that this occurred at 16:17 on the video. RT 24.

Near the conclusion of the argument, counsel for the government argued that "Officer Marcus is a drug recognition expert." RT 24. Defense counsel objected that there was nothing in the record supporting the claim and the government withdrew that statement. Id. A minute or two later, counsel for the government stated that "during the time in the vehicle the three minutes and before, Officer Marcus was first waiting to hear back from dispatch to verify the license and registration, and also in the prolonged period, it requires time to fill out the incident report --" RT 27. Defense counsel objected that this claim was not supported by the record. Id. It was only at that point, approximately forty minutes into hearing,*fn1 that the government said "if an evidentiary hearing is needed to add this to the record, then the government so requests one." Id. The court noted that counsel "submitted earlier" and that it intended to proceed, at which point the government indicated its acceptance of that determination. RT 28.

Also late in the hearing, despite having pointed to probable cause statements in the record of other cases, the government objected to the court's considering the motions to suppress in those cases "because those aren't at issue here." RT 28. The court indicated it would take under submission the question of whether to take judicial notice of the record in the previous cases. Id. It does not take such notice. See Lee v. City of Los Angeles, 250 F.3d 668, 680 (9th Cir. 2001) (court cannot take judicial notice of disputed facts in public records); United States v. Dryden, 567 F.Supp.2d 643, 650 (D.Del. 2008) (not proper to consider finding of fact in unrelated case to assess officer's credibility.

In her closing remarks, defense counsel again noted that nothing in the record showed that Officer Marcus had the necessary training and experience to determine whether anyone was under the influence of marijuana. RT 30.

In the original order granting the motion to suppress, the court relied on its own review of the DVD in declining to accept Officer Marcus's characterizations of the behavior of defendant and his wife as nervous, lethargic or confused. Order (Docket No. 21) at 4-5. The court also questioned whether defendant's wife was engaged in what qualified as "hiding" anything during the brief time Officer Marcus had to observe her as he was walking back to his vehicle. Id. at 5. In addition, the court observed that the record was silent as to Officer Marcus's training or expertise in recognizing the signs of drug use or possession. Id. at 7 & n.3.

The government filed a motion for reconsideration of the ruling and, in support, offered the declaration of Officer Marcus. Mot. for Reconsideration & Decl. of Officer Ken Marcus (Marcus Decl.) (Docket Nos. 24, 25). In his declaration, Officer Marcus summarizes his training and experience, which includes a Bachelor's Degree of Science in Criminal Justice and several sessions from the Federal Law Enforcement Training Center and one from the Drug Enforcement Administration. Marcus Decl. ¶ 3. He then characterizes defendant at the time of the incident as "confused and/or disoriented," with "glazed-over eyes and marked reddening of the conjunctiva," which he says are "objective signs of marijuana use." Id. ¶¶ 6-7. He also avers that "based on my training and experience, incense is commonly used to mask the smell of marijuana." Id. ¶ 9. In its motion, the government takes issue with the conclusions the court drew from its review of the DVD. Mot. for Reconsideration at 9.

At the hearing on its motion, the government argued it is important to reopen the hearing because the court made determinations about Officer Marcus's credibility based on the DVD of the encounter. It also argued it is proper to reopen the hearing in the interest of justice because there is evidence showing the seizure was lawful; specifically, Officer Marcus should be given the opportunity to explain why he believed defendant's wife was nervous and describe what he was doing as he sat in the car.

Defense counsel urged that the court's original suppression order is law of the case and that finality favors denying the motion. She also argued that Officer Marcus's proffered ...

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