United States District Court, D. Connecticut
RULING ON POST-TRIAL MOTIONS
A. BOLDEN UNITED STATES DISTRICT JUDGE
two-day trial, a jury found Norman Peters guilty of
possession of cocaine with intent to distribute under 21
U.S.C. § 841(a)(1) and (b)(1)(C) and use of a telephone
to facilitate a drug trafficking felony under 21 U.S.C.
§ 841(a)(1). Jury Verdict, ECF No. 90.
the verdict, Mr. Peters moved for a judgment of acquittal,
alleging insufficient evidence of his intent to distribute
cocaine. Memorandum of Law in Support of Judgment of
Acquittal and for New Trial, ECF No. 116. Alternatively, Mr.
Peters moves for a new trial, alleging that the jury
wrongfully convicted him. Id.
following reasons, the Court DENIES Mr.
Peters's motions for judgment of acquittal and for a new
FACTUAL AND PROCEDURAL HISTORY
case evolved from a larger Drug Enforcement Administration
(“DEA”) investigation of Bobby Gutierrez for
allegedly operating a drug trafficking conspiracy. Notice of
Related Case, ECF No. 10; see also United States v.
Gutierrez, No. 16-cr-114 (VAB), ECF Nos. 145, 308.
agents intercepted wire and electronic communications
involving Mr. Gutierrez under Title III warrants approved by
United States District Judge Stefan R.
Mr. Peters's Arrest
April 1, 2016, law enforcement officers intercepted a phone
call to Mr. Gutierrez's cell phone from the number (646)
887-5350, made by a person identified as “Ski, ”
later determined to be Mr. Peters:
PETERS: This is Ski. What up?
GUTIERREZ: What up? Oh, oh okay, I know. What's going on
PETERS: Ain't shit. You around?
GUTIERREZ: Yeah, what's good?
PETERS: Shit, I'm about to be out there in, like, but
I'm almost out there. But I'm about to go eat first.
So like 45 minutes.
GUTIERREZ: Alright, what exit you going to be on?
PETERS: Uh, 14.
of Call No. 467, Gov't Ex. 1.
this call, the officers believed that Mr. Peters was
arranging a drug sale. DEA Special Agent Ryan McHugh
testified that Exit 14 related to the amount of cocaine Mr.
Peters intended to purchase: fourteen grams of cocaine.
Suppression Hearing Transcript, ECF No. 74, at 23:22-24:6.
forty-five minutes later, “Ski” called Mr.
GUTIERREZ: Hold up, Michael! Hold up! [Pause]
GUTIERREZ: What up?
PETERS: Shit! Where you want me to come?
GUTIERREZ: Shit. I'll be by my job in a couple of
minutes. Like 10, 15 minutes.
PETERS: Alright. [Voices overlap]
GUTIERREZ: 15, 20 minutes, 15, 20 minutes, really.
PETERS: Alright, I'm already out here. So I'll wait
Transcript of April 1, 2016 Call No. 473, Gov't Ex. 3-T.
point, Agent McHugh testified that officers believed Mr.
Peters would be meeting Mr. Gutierrez at B&B Deli,
located at 988 State Street in Bridgeport, Connecticut, which
is the location previously intercepted phone calls indicated
Mr. Gutierrez met distributors for illegal drug sales.
Suppression Hearing Transcript, ECF No. 74, at 28:6-10.
McHugh then testified that he contacted several police
departments to see if they had police units available, and
Stamford Police sent Officer Jose Alvarez to conduct
surveillance on 988 State Street. Id. at 29:1-19.
McHugh also testified that the investigative team conducted a
motor vehicle records check to discover whether Mr. Peters
had a valid driver's license, a routine investigative
technique used to identify whether local law enforcement
could have reasonable suspicion to stop a vehicle unrelated
to the Title III investigation. Id. at 29:20-30:24.
The officers learned that Mr. Peters did not have a valid
driver's license. Id. The police officers could
then stop the vehicle lawfully without jeopardizing the
larger DEA investigation. Id. at 30:25-31:25.
Alvarez arrived at 988 State Street in an unmarked car and in
plain clothes to conduct surveillance. Id. at
45:2-16. A gray 2008 Toyota Avalon with Connecticut license
plate 692-YHN pulled into the parking lot of the store.
Id. at 32:10-20; 54:23-25. From his vantage point,
he could not see if Mr. Peters was the driver. Id.
McHugh recalls that Officer Alvarez identified the license
plate number for the investigative team through his Nextel
device, which allowed him to communicate with other
investigative team members. A motor vehicle records search
indicated that the car was registered to a woman identified
as a relative of Mr. Peters. Suppression Hearing Transcript,
ECF No. 74, at 38:23-39:4.
Alvarez testified that, a few minutes later, Mr. Gutierrez
drove into the parking lot. Mr. Gutierrez briefly went into
the store at 988 State Street, before leaving and getting
into the gray Toyota. 65:23-66:11. The car then left the
parking lot with Mr. Gutierrez, drove two hundred yards down
the street and parked. Id. Mr. Gutierrez then got
out of the car, and the car pulled away. Id. at
66:12-16. Officers later identified Mr. Peters as the driver
of the gray Toyota. Id. at 67:19-68:10.
Alvarez followed the car onto I-95 South and informed the
other officers on the investigative team of what he had
observed at 988 State Street. Id. at 71:10.
According to Agent McHugh, the team decided not to conduct
the stop in Bridgeport to protect the broader drug
trafficking investigation, but instead directed Officer
Alvarez to continue following him back to Stamford.
Id. at 71:1-3. At some point during the drive,
Officer Alvarez was close enough to the car to identify Mr.
Peters as the driver. Id. at 80:24-81:5. Officer
Alvarez recalled that he reported this to the central wire
room and that Stamford Police Sergeant
O'Brien-another member of the investigative
team-helped coordinate the vehicle stop. Id. at
to Officer Alvarez, Sergeant O'Brien coordinated the
stop, and directed Stamford Police Officer Luis Velez to be
at Exit 9, if Mr. Peters got off I-95 at that exit.
Id. at 84:16-19.
Officer Alvarez, Officer Velez was driving a marked patrol
vehicle and had no knowledge of the investigation.
Id. at 125:20-126:3. Officer Velez testified that
the narcotics unit of the Stamford Police Department told him
the description of the car, the plate number, and that the
driver did not possess a valid license, and then directed him
to be in position to stop the vehicle, if it got off the
freeway at Exit 9. Id. at 125:23-125:19.
Velez followed the car a short distance after it left the
highway before stopping the car in front of 38 Home Court in
Stamford, Connecticut, a relatively secluded area with little
approached the car on the driver's side, Officer Velez
observed Mr. Peters making movements to hide something
between his legs. Id. at 127:4-13. When he
approached the driver's window, Officer Velez saw a
plastic bag with a green leafy substance between Mr.
Peters's legs, what Officer Velez believed to be
marijuana.127:14-22. At that point, Officer Velez contacted
Officer William Garay for additional assistance. Id.
at 127:23-25. After Officer Garay arrived, Officer Velez
directed Mr. Peters to get out of the car. 128:3-7. Mr.
Peters admitted to Officer Velez that the substance was
marijuana. 128:14-18. Officer Velez also retrieved Mr.
Peters's learner's permit,  registration, and insurance
from the car. 128:19-129:11.
Velez then requested a K-9 unit at the location; a few
minutes later, Sergeant Phelan arrived with Cronin, a dog
trained to identify drugs by its scent. Cronin signaled in
such a way as to suggest the presence of illegal drugs in the
car's console, but the officers found no narcotics.
Id. at 129:23-130:22. Officer Velez then approached
Peters and asked if he had anything illegal on him.
Id. at 130:23-131:3. When Mr. Peters denied this,
Sergeant Phelan had Cronin sniff Mr. Peters. Cronin detected
and alerted the officers to the presence of narcotics near
Mr. Peters's groin area. Id. at 131:4-7. Mr.
Peters denied that he had any drugs hidden near his groin
area. Id. at 131:8-12.
time, another Stamford Police Officer, Brendan Phillips, had
arrived on the scene to provide additional assistance with
the search. 131:13-21. Then-Officer Phillips, like Officer
Alvarez, had been working with the DEA task force and knew
about a potential drug transaction that had occurred between
Mr. Peters and Mr. Gutierrez in Bridgeport, about the planned
stop, and Mr. Peters's identity through a previous
narcotics investigations. Id. at 165:11-169:24.
result, Officer Phillips determined that he should conduct a
further search of Mr. Peters for the drugs. Id. at
171:5-16; 173:17-23. He instructed Mr. Peters to keep his
hands on the trunk, and to take one step back from the
vehicle, and to spread his feet. Id. at 174:3-8. He
then patted down the outside of Mr. Peters's clothing.
Id. at 174:12-17. As he moved toward Mr.
Peters's legs, he felt Mr. Peters's lower body tense
up; specifically, the muscles in his thighs, hamstrings, and
buttocks, and Mr. Peters began to push the front of his
waistband towards the car, as if he was clenching his legs
together. Id. at 174:18-24.
Conn. Gen. Stat. § 14-36(b) (“An adult instruction
permit shall entitle the holder, while such holder has the
permit in his or her immediate possession, to operate a motor
vehicle on the public highways, provided such holder is under
the instruction of, and accompanied by, a person who holds an
instructor's license issued under the provisions of
section 14-73 or a person twenty years of age or older who
has been licensed to operate, for at least four years
preceding the instruction, a motor vehicle of the same class
as the motor vehicle being operated and who has not had his
or her motor vehicle operator's license suspended by the
commissioner during the four-year period preceding the
his training and experience, Officer Phillips believed Mr.
Peters was trying to hide something within his buttocks.
Id. at 174:25-175:6. In Officer Phillip's
experience, it was difficult for parties to maintain a clench
after squatting, which reveals items individuals attempt to
hide. Id. at 175:18-176:7. He continued the search
by asking Mr. Peters to squat down and searching again with a
“bladed hand” to continue the search of his groin
and buttocks area. Id. at 175:7-17. During this
search, Officer Phillips felt an object inside Mr.
Peter's pants, between the top of his buttocks.
Id. at 176:8-11. Officer Phillips then reached into
Mr. Peters's pants and grabbed the suspected cocaine,
which was wrapped in napkins. Id. at 176:18-177:16.
police arrested Mr. Peters, and charged him with possession
of narcotics and possession with intent to sell narcotics in
violation of Conn. Gen. Stat. §§ 21a-278a and
21a-279, possession of marijuana in violation of Conn. Gen.
Stat. § 21a-279a, and operating a motor vehicle without
a license in violation of Conn. Gen. Stat. § 14-36a.
Gov't Opp. at 6. Later that evening, Mr. Peters posted
his release, Mr. Peters called Mr. Gutierrez at 7:56 p.m. and
told him about the stop, search, and arrest, and speculated
that he may have been the subject of an undercover ...