County Superior Court
Plaintiff: Matthew L. LaMountain, Esq.
Defendant: Emili B. Vaziri, Esq.
the Court is Jose Cabrera's (Defendant) Motion to
Suppress Tangible Evidence (the Motion). Defendant argues
that the 1100 oxycodone pills found in his car should be
excluded from evidence because the search of his motor
vehicle was unconstitutional as it was not supported by
probable cause. Conversely, the State of Rhode Island (the
State) objects to the Motion, maintaining that the search of
Defendant's motor vehicle was supported by probable cause
and thus constitutional. Jurisdiction is pursuant to G.L.
1956 § 8-2-15. For the following reasons, the Court
denies the Motion.
Facts and Travel
October 7, 2015, Trooper Garrett Hassett (Trooper Hassett) of
the Rhode Island State Police (RISP) was patrolling Route 95
near Exit 5 and the Austin Farm turnaround. Trooper Hassett
is a five-year veteran of the RISP and a member of the
Domestic Highway Enforcement Team (DHET). As a member of the
DHET, Trooper Hassett has received training to identify
criminal activity in automobiles. The training informed
Trooper Hassett of certain indicia of criminal activity in a
motor vehicle stop, such as using cover scents and
sympathetic statements, having unrealistic travel plans, and
being untruthful, among others.
Trooper Hassett's patrol, he observed a black vehicle
(the Vehicle) bearing Massachusetts license plates, following
a semi-truck car carrier. The Vehicle was traveling in the
northbound direction in the travel lane furthest to the right
and following the car carrier too closely, only being
one-half of a car length behind it. As a result, Trooper
Hassett followed the Vehicle for half of a mile, during which
time he observed that another RISP Trooper had initiated a
traffic stop ahead of himself and the Vehicle. Trooper
Hassett increased the distance between his police cruiser and
the Vehicle to give the Vehicle ample room to move over to
the left travel lane, away from the traffic stop, in
conformance with Rhode Island's new "Move Over"
however, the Vehicle did not move to the left travel lane.
Accordingly, Trooper Hassett initiated a traffic stop of the
approaching the Vehicle, Trooper Hassett observed that
Defendant was the driver and there were no passengers.
Trooper Hassett asked Defendant to provide his license,
registration, and proof of insurance, and questioned
Defendant about his travel plans. Defendant indicated that he
was coming from the Bronx, New York, where he spent the night
visiting his father, who was sick. At this time, Trooper
Hassett noticed an odor of marijuana emanating from the
Vehicle and asked Defendant if he had smoked marijuana, to
which Defendant responded that he had smoked one hour before.
At this time, Defendant handed Trooper Hassett a small amount
of marijuana and a half-smoked joint. Trooper Hassett asked
Defendant if he had ever been arrested before, and Defendant
stated that he had been arrested in 2001 by the Drug
Enforcement Administration (DEA) for a conspiracy drug
charge. In making a cursory glance around the passenger
compartment of the Vehicle, Trooper Hassett observed, in
plain view, a magazine on the passenger seat of the Vehicle
with what he identified as a marijuana grow lamp on the front
cover. Trooper Hassett indicated that his interaction with
Defendant was normal-while he sensed that Defendant was
slightly nervous, he stated that such a reaction was common
among the majority of people who are pulled over by police.
Trooper Hassett reported back to his police cruiser to check
Defendant's license, registration, and to run a
background check. The background check revealed that
Defendant had also been arrested in 2009 by the Massachusetts
State Police for possession of cocaine.
fifteen minutes into the traffic stop, Trooper Hassett
returned to the Vehicle and asked Defendant to step out of
the Vehicle so that they could talk. After Defendant exited
the Vehicle, Trooper Hassett asked Defendant to submit to a
field sobriety test because he noticed that Defendant's
eyes were bloodshot and watery. Defendant obliged and passed
the three field sobriety tests that were administered.
Trooper Hassett asked Defendant why he had not told him about
the 2009 Massachusetts arrest, and Defendant responded that
he was nervous and that he had forgotten about it. At this
time, Defendant's nervousness had increased
exponentially. Despite it being only seventy degrees, Trooper
Hassett observed that Defendant was perspiring at an
excessive rate; so much so that Defendant used the bottom of
his shirt to wipe the sweat from his forehead and face. When
Defendant picked up the bottom of his shirt to wipe his face,
Trooper Hassett observed that Defendant's abdomen was
also covered in sweat. Trooper Hassett stated that this was
the most nervous and the most he has seen anyone perspire in
his five years of service with the RISP. Subsequently,
Trooper Hassett indicated to Defendant that he was going to
search the Vehicle, at which time Defendant's knees
buckled and he fell to the ground, having apparently fainted.
Trooper Hassett and two other members of the RISP who were on
scene helped Defendant to his feet, and told him to sit on
the push bumper of Trooper Hassett's police cruiser while
Trooper Hassett conducted a search of the Vehicle.
Trooper Hassett's search of the Vehicle, he observed, in
plain view, a Marmot backpack in the back seat. He opened the
backpack and found a black plastic bag. Upon opening the
black plastic bag, Trooper Hassett found eleven separate
clear bags containing a total of 1100 oxycodone pills, which
have a street value of roughly $33, 000. Trooper Hassett
arrested Defendant on drug charges and also issued Defendant
two civil citations.
December 24, 2015, the State filed a criminal information
charging Defendant with (1) possession and intent to deliver
a controlled substance in violation of §
21-28-4.01(a)(4)(i) of our general laws, and (2) operating a
motor vehicle while knowingly having in the motor vehicle a
controlled substance, in violation of § 31-27-2.4 of our
general laws. On January 15, 2016, Defendant was arraigned
and pled not guilty to the above charges. After several
conferences with the Court, Defendant filed the Motion
arguing that the 1100 oxycodone pills should be suppressed
because they were obtained during an unconstitutional search.
Standard of Review
brings the instant motion pursuant to Super. R. Crim. P.
41(f); therefore, at a suppression hearing, the State bears
the burden of establishing that the evidence is admissible
"by a fair preponderance of the evidence."
State v. O'Dell, 576 A.2d 425, 427 (R.I. 1990)
(citing United States v. Matlock, 415 U.S. 164,