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United States v. Lee

United States District Court, D. Rhode Island

August 15, 2018

UNITED STATES OF AMERICA
v.
GREGORY LEE.

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH, Chief Judge.

         Before the Court is Defendant Gregory Lee's (“Defendant” or “Lee”) Motion to Suppress (ECF No. 41). The Court held an evidentiary hearing on July 26, 2018 and heard argument on July 30. After careful consideration of the evidence and arguments, Defendant's Motion is DENIED.

         I. Findings of Fact

         The Court gleans the following facts from the testimony of Officers Nicholas Dinardo and Robert King of the Warwick Police Department (“Department”), who were the only witnesses to testify, and the video footage[1] presented at the evidentiary hearing.

         On the morning of August 5, 2017, at 8:37 a.m., the Department received a 911 call from a concerned caller about a male passed out or asleep in a vehicle parked in a Lowe's parking lot, on Greenwich Avenue in Warwick, Rhode Island. (Hr'g Tr. 9:23-25, 10:1-12.) Responding to the call, Officer Dinardo arrived on the scene soon after at 8:40 a.m. (Id. at 23:15-17, 41:23-25.)

         Once on scene, Officer Dinardo located the gray SUV, two spots from the center, in the middle of the Lowe's parking lot. (Id. at 11:6-11.) The vehicle was off, with the windows rolled up. (Id. at 26:15-19, 49:12-13.) Officer Dinardo observed an individual, later identified as Lee, passed out or asleep in the vehicle. (Id. at 11:17, 12:3-4.) The officer proceeded to knock on the window several times. (Id. at 11:20-21.) After several knocks, Lee awakened, appearing startled, and began reaching under his body and legs, into the center console, and onto the passenger seat, looking for something. (Id. at 11:25, 12:1-8.) As Lee was rummaging through his vehicle, Officer Dinardo opened the driver's side door to maintain a visual of the vehicle's interior. (Id. at 12:9-13.) Lee turned in his seat in order to face Officer Dinardo directly. (Id. at 52:24-25, 53:1-7.)

         With the door open, Officer Dinardo questioned Lee as to whether he was asleep, to which Lee responded that he did not feel well. (Id. at 12:16-19.) Officer Dinardo also inquired whether Lee was okay and whether he needed a rescue, to which Lee indicated he was fine and declined a rescue. (Id. at 53:15-25, 54:1-3.) Officer Dinardo testified that he observed Lee “sweating profusely, shaking, stuttering, ” and displaying constricted pupils. (Id. at 12:20-23.) At this time, he began to suspect that Lee was “high on narcotics.” (Id. at 12:24-25, 13:1-3.) Officer Dinardo also testified that “[i]mmediately, within the first couple seconds, ” he deemed Lee unable to operate a motor vehicle in his condition. (Id. at 15:20-25, 16:1-2.) Further, based on Lee's behavior and appearance, Officer Dinardo immediately suspected that Lee had narcotics in the vehicle. (Id. at 31:11-17.)

         In response to Lee moving around in his vehicle, Officer Dinardo asked him to step outside and produce his driver's license. (Hr'g Tr. 13:14-16.) After doing so, Officer Dinardo testified that Lee turned his back on him and again attempted to reach into the vehicle, without Officer Dinardo instructing him to produce anything else. (Id. at 13:16-18, 27:19-25, 56:3-7.) To maintain a constant visual of Lee's hands, Officer Dinardo peered over Lee's shoulder. (Id. at 14:1-3.) He testified that he did not draw his weapon or handcuff Lee because, in his experience, when a suspect is high and wants to conceal something, they typically “do it right in front of you.” (Id. at 14:6-20.)

         Officer Dinardo then asked Lee why he was acting this way, to which Lee responded that “he was nervous around police.” (Id. at 14:21-24.) Officer Dinardo also asked about any prior criminal history and where Lee was coming from. (Id. at 14:25, 15:1, 17:9- 10.) Lee stated that he had previously been arrested for possession with intent to distribute narcotics, specifically cocaine and methamphetamine, and was coming from Provincetown at 3:30 a.m. to go to Walmart in Massachusetts and Lowe's in Warwick. (Id. at 15:3-11, 17:9-14.) In response to Officer Dinardo, Lee indicated that he had not taken any medication or recreational drug. (Id. at 66:2-10.)

         At this point, Officer Dinardo returned to his cruiser to run checks on Lee and called Officer King for back up for “[o]fficer safety reasons and to continue the investigation.” (Hr'g Tr. 15:12-19, 16:21-24.) While doing so, Officer Dinardo ordered Lee to stand at the front of the vehicle. (Id. at 28:20-23.) Officer Dinardo noted that Lee “wasn't able to stand still . . . His hands were playing with his shirt, in and out of his pockets. He was walking around and appeared at one point to pick something up off the ground.” (Id. at 29:1-6.) While running checks from the cruiser, Officer Dinardo asked Lee for additional information, and the video footage shows Lee handing something to the officer. (Id. at 29:17-25, 30:1-2, 72:6-8.) Officer Dinardo testified, however, that he could not recall the question or what Lee handed him. (Id. at 30:1, 72:1-11.)

         Once Officer King arrived on scene (approximately seven minutes after Officer Dinardo), Officer Dinardo asked him “to speak with Mr. Lee to get his feelings on his condition, behaviors.” (Id. at 16:15-20, 26:1-3.) After doing so, Officer King similarly concluded and informed Officer Dinardo that Lee was “most definitely high on something.” (Id. at 17:2-6, 148:18-25, 149:1-8.) Lee also admitted his prior arrest to Officer King during their conversation. (Id. at 150:11-15.) At no point was a sobriety test administered. (Id. at 69:9-11.)

         Following this brief conversation, Officers Dinardo and King continued to question Lee, asking him about his “drug of choice.” (Id. 31:25, 66:15-18.) The officers brought Lee to the back of the vehicle, to verify his story and investigate whether he had shoplifted any items. (Id. at 32:1-9.) While there, the officers saw several Walmart bags. (Id. at 86:11-13.) Officer Dinardo testified that Lee consented to a search of the vehicle at the back of the vehicle, about five or six minutes after Officer King's initial arrival. (Id. at 32:19-24, 33:24-25, 34:1-5.) Officer Dinardo recalled asking Lee, “[i]f I were to look through your car right now would I find anything?” and then asking, “can I look through your car?” (Id. at 92:8-11.) Officer Dinardo elaborated that he “asked Mr. Lee if he wouldn't mind allowing [the officers] to look into his car, and [Lee] said that he would have no problem because he had nothing to hide.” (Id. at 32:22-24.) Lee “even offered, Bring in the K-9s too.” (Id. at 93:5-7.) Officer King at first indicated that officers acquired consent at the back of the vehicle, but later noted he was unsure exactly when Lee gave consent. (Id. at 155:12-22, 183:16-25, 184:3-7.)

         After conversing at the rear of the vehicle, the officers brought Lee to the back of Officer Dinardo's cruiser in order to search him, per department policy, before placing him in the cruiser. (Hr'g Tr. 33:1-11.) While searching his person, Officer King continued questioning Lee and advised him to empty his pockets. (See id. 36:16-18.) It was during this search that Officer King discovered a NYLO Hotel room key. (Id. at 37:5-10.) Lee explained that before arriving at Lowe's he had dropped off a friend at that hotel. (Id. at 37:17-19.) The video footage shows Lee being placed in the rear of Officer Dinardo's police cruiser, and, while there, both officers speaking to him for a considerable time period. Both officers testified that they had no recollection of what was said during that specific conversation. (Id. at 33:4-5, 106:9-25, 107:1-3.) Immediately following this conversation, Officer Dinardo returned to Lee's vehicle and entered it to conduct his search. (Id. at 39:11-17.)

         The search began approximately fifteen minutes after Officer King arrived. (See id. at 39:19-21.) Officer Dinardo immediately searched the backpack in the front passenger seat of Lee's vehicle and found what appeared to be narcotics. (Id. at 40:1-4.) The officers then arrested Lee without incident. (Id. at 40:5-9.) At some point after the arrest, Lee's vehicle was towed and impounded. (Id. at 42:25, 43:1-5.) Earlier, the vehicle was subjected to a K-9 search that turned out to be negative. (Id. at 111:24-25, 112:1-3.)

         II. Discussion

         A. Welfare Check or Terry Stop?

         In Terry v. Ohio, the Supreme Court of the United States held that protective searches for weapons in the absence of probable cause to arrest are constitutionally permissible because it is unreasonable to deny a police officer the right “to neutralize the threat of physical harm.” 392 U.S. 1, 24 (1968). The principles Terry outlined have been extended to traffic stops, as officers may “take similar measures to protect their safety, notwithstanding modest additional intrusion on the privacy rights of drivers and passengers.” United States v. Fernandez, 600 F.3d 56, 59 (1st Cir. 2010). This Court has not uncovered a case that explicitly extends Terry and its progeny to welfare checks.

         Welfare checks are “stop[s] [that] make sure the driver is okay and in condition to drive.” United States v. Rodriguez-Rodriguez, No. CR 06-0537 JB, 2006 WL 4079624, at *2 (D.N.M. Dec. 11, 2006). Thus, welfare checks are intended primarily to ensure the driver's safety and wellbeing. See id. And, while not the primary focus of a welfare check, officer safety is always a concern during any situation involving an occupied automobile. See Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (noting “inordinate risk confronting an officer as he approaches a person seated in an automobile”); Michigan v. Long, 463 U.S. 1032, 1048 (1983) (“Our decision [in Adams v. Williams, 407 U.S. 143, 148 n.3 (1972)] rested in part on our view of the danger presented to police officers in ‘traffic stop' and automobile situations.”).

         Courts have found the typical safety concerns that are present in traffic stops to be equally present during welfare checks. See United States v. Alexander, No. CR417-056, 2018 WL 323945, at *2 (S.D. Ga. Jan. 8, 2018) (“While there was no traffic stop in this case, officers were approaching a vehicle [for the purpose of a welfare check] where the same unknowns to their safety existed.”). Moreover, “the risk of a violent encounter in a traffic-stop setting ‘stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.'” Arizona v. Johnson, 555 ...


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