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United States v. Robertson

United States District Court, D. Connecticut

March 8, 2017

UNITED STATES OF AMERICA
v.
ELLSWORTH ROBERTSON, Defendant.

          RULING GRANTING MOTION TO SUPPRESS

          Jeffrey Alker Meyer, United States District Judge

         BACKGROUND ............................................................................................................................. 1

         A. Events of November 7, 2015, at the Mohegan Sun Casino ....................................................... 2

         B. Events of May 2016 re the Arrest of Robertson and Related Searches and Seizures ................ 5

         1. The Arrest of Robertson ....................................................................................................... 7

         2. The Protective Sweep of Robertson's Apartment ................................................................ 8

         3. The Seizure of the Safe ........................................................................................................ 9

         4. The Securing and Search of Robertson's Apartment ......................................................... 12

         5. The Search of the Safe ....................................................................................................... 16

         DISCUSSION ................................................................................................................................ 16

         A. Evidence Seized at the Mohegan Sun Casino .......................................................................... 18

         1. Terry Stop and Frisk .......................................................................................................... 19

         2. Consent Search ................................................................................................................... 23

         3. Inevitable Discovery .......................................................................................................... 26

         B. Evidence Seized from Robertson's Apartment ........................................................................ 28

         1. Robertson's Expectation of Privacy ................................................................................... 28

         2. Entry into Robertson's Apartment and Initiation of Protective Sweep ............................. 31

         3. Duration and Scope of Protective Sweep and Search Incident to Arrest ........................... 33

         4. Seizure of the Safe ............................................................................................................. 35

         a. Plain View Exception .................................................................................................. 35

         b. Exigent Circumstances Exception ............................................................................... 37

         5. Fruit of the Poisonous Tree and the Exclusionary Rule .................................................... 42

         a. Fruits of Unlawful Search of Robertson at the Mohegan Sun Casino ......................... 44

         b. Fruits of Unlawful Search of Table Drawer in Robertson's Apartment ...................... 46

         c. Fruits of Unlawful Seizure of the Safe ........................................................................ 48

         CONCLUSION .............................................................................................................................. 50

         RULING GRANTING MOTION TO SUPPRESS

         Defendant Ellsworth Robertson is charged with multiple drug trafficking and firearms offenses. He moves to suppress essentially all of the incriminating evidence against him, on the grounds that the police obtained this evidence in violation of his Fourth Amendment rights. I agree that the police violated Robertson's rights and that they did so in a reckless and flagrant manner that warrants invocation of the exclusionary rule. Accordingly, I will grant defendant's motion to suppress.

         Background

         The charges against Robertson stem from physical evidence recovered during the course of two encounters that he had with law enforcement authorities. The first occurred late one night in November 2015 at the Mohegan Sun casino in Uncasville, Connecticut. While investigating a reported stabbing incident, a tribal police officer at the casino searched Robertson and recovered crack cocaine from a small drawstring bag that the officer found in one of Robertson's pockets.

         The second encounter occurred more than six months later in mid-May 2016. By that point, Robertson was under intense investigation for narcotics trafficking by a consortium of federal, state, and local law enforcement authorities. The authorities decided to arrest Robertson late one night at his apartment in New London, Connecticut. This in turn led to a cascading series of searches and seizures of narcotics and firearms that Robertson had stored in his apartment and in a safe he had kept there.

         Based on the evidence presented at the suppression hearings, I make the following factual findings about each of these two encounters:

         A. Events of November 7, 2015, at the Mohegan Sun Casino

         Around midnight on November 7, 2015, someone stabbed a victim with a knife at a nightclub at the Mohegan Sun casino. The casino is run by the Mohegan Tribe, and tribal police soon arrived on the scene and interviewed witnesses who described the suspect. At about 1:30 a.m., a witness pointed out a person who was sitting on a bench in the box office area of the casino as “possibly” the person responsible for the stabbing. Officers saw that the person on the bench matched the physical description of the suspect that they had received earlier. The person on the bench was Ellsworth Robertson, the defendant in this case.

         Sergeant Clifford Barrows of the tribal police approached Robertson and asked to speak with him. Robertson agreed, and the two walked over to the middle of the box office's retail area. Barrows saw that a pocketknife was clipped to the right side pocket of Robertson's pants, and he seized the knife.

         Sergeant Barrows and Robertson then had a conversation. Consistent with the testimony of Sergeant Barrows at the suppression hearing and as shown in video from the casino's surveillance cameras, four other officers stood nearby, a few feet behind Robertson to either side. None of the officers had their weapons drawn, and Robertson was not handcuffed.

         While still standing with Sergeant Barrows, Robertson briefly took a call on his cell phone. After this phone call, Sergeant Barrows told Robertson that police were investigating a stabbing incident and asked if he was involved. Robertson denied involvement.

         Sergeant Barrows told Robertson, “I want to check you for similar weapons.” Robertson responded with words to the effect of “Go ahead.” Doc. #38 at 20. Sergeant Barrows then walked Robertson over to the wall, near the box office window. Robertson put his arms on the wall in order to be frisked.

         Sergeant Barrows proceeded to search Robertson for more than two minutes, which included patting down his clothing as well as reaching into his pockets and removing various items. He first removed a black cloth bag that was sewn closed and had some hard objects in it. Robertson said that the bag contained religious items. Sergeant Barrows placed the bag on a nearby shelf without opening it. He then removed a number of additional items from Robertson's pockets, including a wallet, a large quantity of cash, and a cell phone. He placed each item on the shelf.

         Finally-and most critically for purposes of this ruling-Sergeant Barrows removed from one of Robertson's jacket pockets another black, cloth drawstring bag. The bag was about six to eight inches long. Sergeant Barrows testified that the bag was a “pouch [that] was not drawn fully closed” and that “it could be opened or reclosed at any point.” Id. at 22. The bag was neither “drawn tightly closed” nor “wide-mouth open, ” and it was open at the top about a “quarter inch, half inch opening, I'm going to guess.” Id. at 63; see also Doc. #39 at 48-49 (same).

         Sergeant Barrows felt the outside of the bag and felt “rocks in it” and thought this was “weird.” Doc. #38 at 60. He then decided to look inside the bag without opening it:

I could see white and what appeared to be white material wrapped in plastic, like Saran wrap or a plastic bag type of material. I've commonly seen narcotics packaged that way for sale on the street.

Id. at 58-59; see also Id. at 21 (Sergeant Barrows' testimony on direct examination that “I could see into the interior of the bag” and saw “what appeared to be white material wrapped in plastic” and that “being involved in narcotics cases in the past, I thought that this might be narcotics packaged for sale or just narcotics”).

         Based allegedly on what he saw when he looked into the bag, Sergeant Barrows then “opened up the bag and it appeared to me that it was white rock-like powder.” Ibid. According to Sergeant Barrows, “the appearance was what I had recognized as previously seen as narcotics packaged for street sale.” Ibid.

         Sergeant Barrows placed Robertson under arrest for narcotics possession. See Doc. #23-1 at 2 (arrest report). He walked Robertson to the security office and read him his Miranda rights, and then he performed a field test on one of the baggies of white powder, which tested positive for cocaine.

         During the course of Sergeant Barrows' testimony, I had doubts that he could see what he claimed he saw inside the black bag. According to Sergeant Barrows, the lighting in the box office area of the casino was no brighter and perhaps “a little bit dimmer” than the lighting in the courtroom. Doc. #39 at 51-52. Because the Government did not produce the bag at the initial suppression hearing, I asked the Government to produce the bag for inspection at a later hearing. At this later hearing, I asked the Government's case agent to place a white Kleenex inside the bag and to hand me the bag for examination. Id. at 35-36. With the bag about a half-inch open as Sergeant Barrows had testified it was, I could barely see that there was any object at all inside the bag, much less could I visually ascertain what the object was. This examination reinforced my concern that Sergeant Barrows could not actually see what he claimed he saw before he opened the bag.

         Based on my consideration of Sergeant Barrows' demeanor and the content of his testimony, as well as my own examination of the drawstring bag at the suppression hearing, I do not credit Sergeant Barrows' testimony about what he claimed to see inside the bag before he opened it. The bag was black and opaque, and very little light could penetrate the mostly closed opening of the bag. There was not enough light for Sergeant Barrows to have identified cocaine inside the bag, especially considering that for Sergeant Barrows to have seen the cocaine he would also have to have viewed it through the filter of the plastic wrapping in which it was encased. Barrows had a hunch (a correct one, as it turned out) that the bag had narcotics inside. But he did not see-and therefore did not have knowledge or probable cause to believe-that the bag contained narcotics until after he opened the drawstring of the bag and removed its contents.

         I have given due regard to Sergeant Barrows' training and experience. But no amount of intuition from one's training and experience is a substitute for the basic laws of light and physics. Sergeant Barrows did not see what he claimed to see.

         I further conclude that, although Sergeant Barrows initiated the search of Robertson's person to look for weapons, Sergeant Barrows did not open the bag in order to search for weapons. Sergeant Barrows opened the bag only after he allegedly saw cocaine inside, and his purpose was to recover cocaine, not to neutralize any threat from weapons.

         Nor was there anything about the bag or Sergeant Barrows' handling of the bag on its outside that otherwise suggested it contained any kind of weapon. The fact that Sergeant Barrows had already set a similar bag aside without searching inside is a further indication that he did not have any basis to conclude that the bag he ended up opening had any weapons inside. I find that Sergeant Barrows did not believe and had no reasonable belief that the bag contained any weapons.

         B. Events of May 2016 re the Arrest of Robertson and Related Searches and Seizures

         In the months leading up to May 2016, Robertson came under investigation by several law enforcement agencies, including the police in the City of New London, the Connecticut Statewide Narcotics Task Force, and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). These agencies were collaborating to investigate Robertson and another individual named Tyrone Henry for suspected drug trafficking.

         The lead case agent for this investigation was Special Agent Daniel Prather of the ATF. The investigation involved physical surveillance of both Robertson and Henry, as well as monitoring of Robertson's and Henry's cell phones pursuant to court orders for pen register and cell tower tracking information.

         Throughout the investigation Robertson was on supervised release for a prior federal narcotics trafficking conviction. See United States v. Robertson, 3:07-cr-205 (SRU) (D. Conn.). The conditions of his federal supervised release required Robertson to inform his probation officer of his residence. Although Robertson had told his probation officer that he lived in Hartford, the investigation revealed that he often stayed at a third-floor apartment at 35 Union Street in New London.

         On May 16, 2016, Agent Prather applied to a federal magistrate judge for a federal arrest warrant for Robertson. To establish probable cause to arrest Robertson, Agent Prather relied principally on the fact that Robertson had been found with cocaine at the Mohegan Sun casino on November 7, 2015, as described above. See Doc. #1-1 (criminal complaint and affidavit). Although Agent Prather secured an arrest warrant for Robertson, he did not apply for or secure a search-and-seizure warrant for Robertson's apartment.

         On the following day of May 17, 2016, officers engaged in surveillance of Robertson and Henry, both through covert physical surveillance and by tracking their cell phones. Officers who were posted outside Robertson's apartment in New London saw Robertson leave and return several times in his car. At one point, an individual who officers believed was associated with Robertson drove slowly by the officers in their unmarked surveillance vehicle and looked inside. Believing they had been “made, ” the police switched out their vehicle to another unmarked vehicle. After the last time that officers saw Robertson leave the apartment that night, they did not observe him return to the apartment, and they could not locate his car. Eventually, however, they learned from cell phone tracking data that Robertson had somehow returned to the apartment.

         1. The Arrest of Robertson

         The officers decided at that time to execute the arrest warrant for Robertson at his New London apartment, as well as to execute a separate arrest warrant for Henry at a residence in Uncasville which is about five miles away from New London. It was by then shortly after midnight in the early morning hours of May 18.

         At least nine officers gathered outside Robertson's apartment building in New London. The officers at the scene included two New London police officers, two Statewide Narcotics Task Force officers, one United States Marshal, and at least four or five ATF agents.[1]

         Five or six of the officers entered the third-floor hallway of the apartment building, while the remaining officers remained stationed elsewhere around or outside the building. The officers knocked on the door to Robertson's apartment repeatedly and heard movement inside the apartment, including footsteps and “soft noise, ” possibly a television or voices inside.

         After four or five minutes, Robertson opened the door. He was standing with half of his body visible and the other half of his body blocked by the door. Multiple ATF agents yanked Robertson out of his apartment and “passed him back” from officer-to-officer down the hallway, where he was then handcuffed and searched. Doc. #38 at 219-20. Robertson was secured and immobilized in double-lock handcuffs. Id. at 168 (“We double-lock them so they don't move” and “I think they were double-locking him”).

         2. The Protective Sweep of Robertson's Apartment

         While Robertson was being arrested and secured outside in the hallway, most of the officers rushed into the apartment, ostensibly for the purpose of conducting a “protective sweep” to ensure that nobody else was in the apartment who might harm them. The officers looked in the living room, kitchen, dining room, bedroom, and bathroom. There were no lights on in the apartment, and some of the officers used flashlights.

         No one was found inside the apartment. But one of the officers-Jeremy Zelinski of the New London Police Department-saw a safe in the far right corner of the bedroom closet. At the suppression hearing, Officer Zelinski testified that using his flashlight he saw a “powder or dust substance” on top of the safe but that he did not then know what the substance was.[2]

         Following the protective sweep, the officers brought Robertson back into the apartment from the hallway. It had now been about five minutes from the time that they had arrested and handcuffed him in the hallway outside the apartment until they completed the protective sweep and brought him back inside the apartment. Doc. #38 at 220. The officers had Robertson stand near the door in handcuffs as they searched the couch near the door, and then they had him sit on the couch.

         While Robertson was still standing in handcuffs near the door, Officer Zelinski decided to open a drawer of a small table that was in the corner behind the front door of the apartment. The table and the doorway are shown in a photograph that was introduced at the suppression hearing. See Gov. Exhibit 4B. Officer Zelinski testified that he opened the drawer to look for a firearm, allegedly “believing that Robertson could have reached for a gun, [because] it was within his wing span to reach for a firearm.” Doc. #38 at 192; see also Id. at 200-01.

         Instead of finding a gun, Officer Zelinski saw packages of cocaine. He showed the cocaine in the drawer to an ATF agent who was on the scene. The officers left the cocaine in place at that time inside the drawer.

         I found Officer Zelinski not to be a credible witness in large part. I do not credit his explanation for why he looked in the drawer. I believe that he was looking for narcotics when he opened the drawer and that he did not look inside the drawer to protect himself or others from weapons. Robertson was already well-secured in handcuffs, having been forcibly yanked out of the apartment for this very purpose. With numerous other agents around and no apparent legitimate reason for Robertson even to have been brought back into the apartment after having been taken into the hallway, Officer Zelinski had no credible safety concern to justify his opening of the table drawer.

         3. The Seizure of the Safe

         Robertson was asked to consent to a search of the apartment. He declined to do so. The police then decided to remove the safe from the apartment without Robertson's consent and over his objection.

         A significant part of the suppression hearing focused on why the police decided to take Robertson's safe from the apartment despite their lack of consent or a warrant to do so. I learned that the police removed the safe on the instructions of Agent Prather, who as noted above was the lead case agent for the investigation.

         Agent Prather himself was not at Robertson's apartment. He was miles away in Uncasville to take part in the simultaneous arrest action against Tyrone Henry. After receiving consent from Henry's girlfriend to search Henry's apartment, officers at that apartment had located a safe, and a police canine on the scene had alerted to the safe for the presence of narcotics. Id. at 252.

         Upon learning by telephone that Robertson also had a safe in his apartment, Agent Prather told the officers at Robertson's apartment to remove the safe “for safekeeping.” Id. at 183. According to Agent Prather, “there was concern that there might be other people with access to the apartment, ” and law enforcement “didn't have personnel to secure the scene in New London at that time.” Id. at 253.

         I asked Agent Prather what basis he had to remove the safe from the apartment. In essence, he told me that he had no factual basis. He stated that he ordered the safe to be removed without knowing that there had been any narcotics or contraband found in Robertson's apartment:

THE COURT: I'm unclear. At the time that you instructed the safe be removed, did you know about the residue on top of the safe?
THE WITNESS: I did not, no.
THE COURT: And you didn't know about the crack in the drawer?
THE WITNESS: I did not.

         Doc. #39 at 20-21. Agent Prather went on to further explain his reason for ordering removal of the safe:

So my feeling at the time was that they were exiting the apartment, at that moment I wasn't thinking we were going to re-apply for a search warrant of the residence and I did not know whether anybody else had access or we would be able to secure the apartment for the appropriate amount of time to ...

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