D.P.R.: Officer’s testimony is just too convenient to be believed

In a remarkable opinion, the court finds the officer’s testimony just too convenient and, thus, incredible and suppresses the seizure by an alleged plain view. Also, the plain view required manipulation, and that’s not plain view. United States v. Mata-Peña, 2017 U.S. Dist. LEXIS 19342 (D. P.R. Feb. 10, 2017):

Since the Court has declined to make additional credibility determinations, the Court will simply note that it was mightily convenient for the police that, although someone had evidently taken the precaution of hiding the kilos of cocaine — by enclosing them in an opaque wrapping of newspaper, then placing them in a zippered-shut CD binder, then tucking the binder into a well-padded cardboard box, then camouflaging the boxes in a large black trash bag — virtually all of that protective packaging was then undone, as to a single wrapped kilo of cocaine, thereby exposing part of the kilo to the plain view of a police officer, who had fortuitously decided to interrupt an entire caravan of police vehicles, in the middle of their hours-long drive across the island, to investigate a traffic infraction that is exceedingly common in this jurisdiction. Based on the Court’s own experiences on the roads of Puerto Rico, the officers must have seen dozens illegal lane changes during their drive back to Mayagüez. But Agent Cortés stopped only this particular vehicle, without any explanation as to why he chose, apparently spontaneously, to act as a traffic enforcer here. It was, it turns out, an exceptionally lucky choice.

Finally, the Court observes that the black plastic bag had been torn apart, that the duct tape previously sealing the cardboard was pulled back and still affixed to its sides and that the package that was allegedly in plain view had its short side sticking out of the short end of its binder. Meanwhile, all the other packages had their long sides running parallel to the short ends of their binder. The Court finds it interesting that the only package that was allegedly in plain view was positioned so differently, within its binder, than all the other packages. If anything, the tearing up of the black plastic bag and the careless positioning of the exposed package seemed to suggest that someone had quickly opened up the garbage bag, and then the cardboard box, and then the CD binder, to check what was inside them. But Agent Cortés did not mention any apparent tampering with the newspaper wrapping of the exposed package, until, of course, he removed it as part of his warrantless search. Again, all mightily convenient for the police.

Even accepting Agent Cortés’s facts as true, the record does not support the bold claim that “the incriminating character of [the partially-exposed package was] immediately apparent to [him].” Paneto, 661 F.3d at 714 (quoting Sá;nchez, 612 F.3d at 5). The Court is aware that Agent Cortés did not need to be “certain of the incriminating character of [the package], but, rather, must have [had] a belief based on a ‘practical, non-technical probability’ that the [package was] evidence of a crime.” Id. (quoting Giannetta, 909 F.2d at 579). However, the only basis that Agent Cortés gave for his belief that the package contained drugs was his unspecified training at some point between 2004 and 2010 and his experience in maybe four arrests involving kilos of cocaine, which had allegedly taught him that kilos are usually packaged as compact rectangular cubes, wrapped in clear plastic, beige tape, or, as was the case here, newspaper. The record, in terms of both what Agent Cortés allegedly saw and what he allegedly knew through experience and training, is entirely too thin to support the requisite finding of probable cause. Thus, the Court finds that, as a matter of law, the record fails to support the actions that Agent Cortés took based on the observations he had allegedly made. See United States v. Barrios-Moriera, 872 F.2d 12, 17-18 (2d Cir. 1989) (indicating that the “mere viewing and evaluation” of a “rectangular package, measuring a certain size [resembling a kilo of cocaine], wrapped in duct tape,” by a trained officer who “had participated in the seizure of three or four hundred separate kilos of cocaine” and learned that “a kilogram of cocaine [i]s typically wrapped in some variety of tape,” did not give the officer “probable cause” to believe that the package contained drugs).

During the demonstration, the Court viewed the blandly rectangular, book-like shape of the recovered kilos of cocaine, as well as one of those kilos wrapped in the newspaper that had been used to camouflage them. Agent Cortés then placed the newspaper-wrapped kilo partially inside of an unzipped, but otherwise closed, CD binder, which he then placed partially inside of an open cardboard box, all of which had been taken from the truck. Agent Cortés stated that what the Court was viewing constituted a fair and accurate representation of what he had seen prior to searching and seizing the exposed package. And, the small portion of the package that was exposed to plain view — only a few inches of one of its sides — simply looked like part of a possibly book-shaped object, wrapped in newspaper. The closed flaps of the unzipped CD binder obscured the true shape and size of the package from view, especially the angle from which Agent Cortés would have seen it, standing outside of the tall truck. Actually, during the demonstration, Agent Cortés struggled with the open flap of the cardboard box, upon which he had allegedly seen the exposed package, and its binder, resting. He repeatedly had to bend and press the open flap down, to help make the edge of the partially-exposed package more visible. Apparently, the weight of the package and binder, on their own, did not suffice.

The chambers of this Court are filled with lawful goods that, if encased in newspaper, would look indistinguishable from the exposed package. Unlike the small balloons, glassines, and tinfoil packets that not only are staples of the drug trade, but are infrequently used to package legal goods, the specific newspaper-wrapped package at issue here had a perfectly common shape, size, and appearance. Yet, based on his testimony, Agent Cortés relied upon only the appearance of the exposed portion of the package to determine that he had probable cause to search and seize the package without a warrant.

The Government does not point to any pre-seizure circumstances that indicated that it was probable that the wrapped package contained narcotics, as opposed to a lawful object — say, a book or a small collection of CDs or DVDs — of the same common shape and size. Nor did the Government elicit any testimony that indicated that the mode of transporting the newspaper-wrapped package — in a CD binder, in a cardboard box, in a large black trash bag, in a truck, on that highway — was itself suspicious. Instead, the Government only asserts that Agent Cortés could search and seize the partially-exposed package since he “was able to see [it] in plain view” and, “according to his training and experience …, [it] was consistent with the way and form in which a kilogram of controlled substances is packaged.” ECF No. 37 at 8; see also id. at 2 (stating that Agent Cortés’s mere observation of a “squared object,” wrapped in newspaper, “similar to the shape of a brick of drugs” was, in itself, sufficient to give him cause to search and seize).

The Court knows that “[c]onduct innocent in the eyes of the untrained may carry entirely different ‘messages’ to the experienced or trained observer.” United States v. Cardona-Vicente, 817 F.3d 823, 828 (1st Cir. 2016) (quoting United States v. Young, 105 F.3d 1, 7 (1st Cir. 1997)). But the Government’s argument is far too broad because it implies that a trained officer, upon being credited that he knows that kilos of drugs are often packaged in newspaper, may then seize any newspaper-wrapped package of a similar shape and size. The universe of closed packages that are “consistent with” the panoply of ways in which drugs are packaged is expansive and ever-expanding, reaching far beyond the wrapped book-shaped package at issue here. Moreover, unlike the beige tape and clear plastic that Agent Cortés testified are also used to wrap narcotics, newspaper is not naturally connected to the transportation of illegal substances for the simple reason that newspaper does not mask scents. Cf. United States v. $242,484.00, 389 F.3d 1149, 1162 (11th Cir. 2004) (en banc) (“Cellophane, which is largely impermeable to gas, is commonly used to conceal the smell of drugs”) (quoting United States v. $42,500.00, 283 F.3d 977, 982 (9th Cir. 2002)); United States v. Hernández, 313 F.3d 1206, 1211 (9th Cir. 2002) (“traffickers often tape the seams of drug packages in order to conceal the scent of the contraband”). And, the Government has compounded this concern by failing to offer any way to cabin its logic if, for example, drug traffickers began to package kilos of cocaine in gift-wrapping paper. The Court will not endorse a view of the Fourth Amendment that would allow trained police officers to arrest and seize the packages of anyone who walks out of a bookstore with a wrapped gift of the right size.

In any event, the Government’s argument is ill-suited to this case because Agent Cortés only viewed the true size and shape of the exposed package after having seized it, by pulling all of it, as opposed to only a small part of it, into plain view. Thus, the Government may not claim that it was the similarity between the shape of the package and that of a kilo of cocaine that gave the officer probable cause, under the plain-view exception, to seize the package. See Hicks, 480 U.S. at 324-26 (seizure of equipment not justified by the plain-view exception, where the police first needed to move the equipment to acquire enough information to have probable cause that it was stolen). And, by “moving” the whole package into plain view before he had probable cause to seize it, Agent Cortés also searched the package without sufficient cause to do so. Id. at 324-25; see also Paneto, 661 F.3d at 713-14.

Although the shape and packaging of narcotics can sometimes be sufficiently distinctive to create probable cause when viewed by a trained eye, there was nothing distinctive about the small piece of wrapped package allegedly in plain view here that rendered it probable that its contents was drugs. See Barrios-Moriera, 872 F.2d at 17-18; cf. Brown, 460 U.S. at 733-34, 742-43 (plurality op.) (finding that an officer had probable cause that an “opaque, green party balloon, knotted about one-half inch from the tip” contained drugs because “the distinctive character of the balloon itself spoke volumes as to its contents — particularly to the trained eye of the officer,” and the officer “was able to observe the contents of the glove compartment of [the defendant’s] car, which revealed further suggestions that [he] was engaged in … possession of illicit substances.”). Because Agent Cortés did not observe any corroborating indicia of the presence of narcotics in the truck, and because the small sliver of exposed package that he could see could not have given him more than a hunch about its contents, the Fourth Amendment forbade him from searching and seizing the package without a warrant. See Paneto, 661 F.3d at 713-14.

This entry was posted in Plain view, feel, smell, Probable cause, Reasonable suspicion. Bookmark the permalink.

Comments are closed.