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United States v. Ngissah

August 2, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
KWESI NGISSAH, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Defendant is charged with misdemeanor possession of a controlled substance, marijuana, in violation of 21 U.S.C. § 844(a). (Dkt. No. 1.) Pending before the court is defendant's motion to suppress evidence seized from him by U.S. Forest Service Officer Marcus ("Officer Marcus"), and statements allegedly made by defendant, on March 6, 2010. (Dkt. No. 7.) Defendant's motion was before the court for a non-evidentiary hearing on July 26, 2010. (Dkt. No. 12.) Catherine Chyi, a certified law student supervised by Assistant United States Attorney Matthew Stegman, appeared on behalf of the government. Rebecca Kaiser, a certified law student supervised by Assistant Federal Defender Lauren Cusick, appeared on behalf of defendant. The undersigned concludes that no evidentiary hearing is necessary, and, for the reasons that follow, will deny defendant's motion to suppress.

I. BACKGROUND

At the outset, the undersigned notes that counsel for the government referred to a statement of probable cause at the hearing on defendant's motion, but never filed that statement with the court. Similarly, defendant's counsel introduced new alleged facts at the hearing regarding the use of marijuana on the day in question that are unsupported by evidence in the record and are contradicted by the video and audio recording in the record. This approach is unhelpful to the court with respect to ascertaining the complete state of facts underlying the present dispute and resolving this motion.*fn1 Accordingly, the undersigned has taken the facts of this case from the DVD recordings lodged by the parties at the court's request, which consist of video and audio recordings of the events at issue. (Dkt. Nos. 10, 11.)

The DVD recording shows that on March 6, 2010, at approximately 1:02 p.m., Officer Marcus was patrolling the parking lot of the Sierra-At-Tahoe Mountain Resort, which sits on federal land. The recording shows that Officer Marcus drove slowly up and down the lanes of the parking lot and eventually drove just past where defendant and a group of people were having a party at the tailgate of a vehicle, stopped quickly, backed his vehicle up immediately adjacent to the "tailgate" party, turned on the sound of his mounted dashboard camera, and exited his vehicle.*fn2 As reflected in the recording at 1:04:26 p.m., Officer Marcus then stated, in a tone of voice that could be fairly characterized as authoritative and perhaps aggressive: "Who's smokin' weed?" Someone in the group responded: "Huh?" Then, Officer Marcus, speaking rapidly in the same tone of voice, inquired:

Who's smokin' weed? Your eyes are glazed and red. Who's smokin' weed? I can smell it. I drove past here, I can smell it. Who's got weed? I'll tell you I can smell it and I know it from here. Who's got weed on him?

As indicated in the recording at 1:04:41 p.m., approximately 16 seconds after Officer Marcus spoke his first words to the group, defendant responded: "I do."

Officer Marcus then asked defendant how much weed he had in his possession, and defendant responded that he had "this bowl" and also had a small bag of marijuana in his pocket. Officer Marcus asked defendant where the bowl was, and defendant responded that it was "right there" (apparently in the back portion of the vehicle where the tailgate was occurring). He then asked the other group members whether they had any marijuana, informed them that he could search the vehicle, and that they had to be truthful. Officer Marcus ultimately did not search the vehicle.

Officer Marcus also asked defendant to walk around to the front of the patrol vehicle. In doing so, Officer Marcus stated: "Go ahead and put your beer down." Defendant hesitated, and Officer Marcus responded, "seriously." Defendant briefly hesitated, and Officer Marcus continued to direct defendant to the front of his vehicle until defendant complied.

Once in front of Officer Marcus's vehicle, Officer Marcus directed defendant to place his hands behind his back and interlace his fingers, and to spread his legs wide. He did not handcuff defendant. Officer Marcus retrieved the bag of marijuana, which defendant confirmed contained approximately "half an eighth" of marijuana. Officer Marcus then provided defendant with Miranda warnings and asked defendant if he would like to talk about the incident. Defendant calmly replied, "Yes, sir."

In response to Officer Marcus's questions that followed, defendant confirmed, among other things, that he did not have a doctor's recommendation or other legal authorization to possess marijuana, that he knew that marijuana remains illegal under federal law, and that he had brought marijuana with him for "recreational purposes." The recording also reflects that at 1:07:23 p.m., Officer Marcus asked defendant the following question: "How much did you smoke?" Defendant responded: "I just started." During this exchange, defendant indicated that he intended to smoke marijuana and then go snowboarding. Officer Marcus and defendant engaged in a brief discussion regarding whether it is advisable to smoke marijuana prior to snowboarding and whether marijuana might impair defendant.

Officer Marcus ultimately issued a citation to defendant for violation of 21 U.S.C. § 844(a), for possession of a controlled substance. Approximately 12 minutes elapsed between the time Officer Marcus initially drove past the tailgate party and the time Officer Marcus gave the citation to defendant and finished answering defendant's questions about the implications of the citation at 1:16:24 p.m.*fn3 Subsequently, and after defendant had walked away from Officer Marcus's vehicle, another member of the group, apparently the owner of the vehicle, engaged Officer Marcus in discussion in an attempt to convince Officer Marcus not to include his vehicle's license plate number in the police report. That other person conveyed that this was only the second time he had socialized with "these guys" and did not know that they smoked marijuana. The entire encounter ended at 1:18:17 p.m.

On June 8, 2010, the government filed an information charging defendant with a misdemeanor violation of 21 U.S.C. ยง 844(a) for knowingly and intentionally possessing a Schedule I controlled substance, marijuana. On July 9, ...


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