Case 2:20-cr-00041-JDL Document 78 Filed 07/13/21 Page 1 of 25 PageID #: <pageID> UNITED STATES DISTRICT COURT DISTRICT OF MAINE UNITED STATES OF AMERICA ) ) ) v. ) 2:20-cr-00041-JDL ) ANTRON OWENS, ) ) Defendant. ) ORDER ON DEFENDANT’S MOTION TO SUPPRESS On March 13, 2020, Antron Owens was indicted on one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(B) (West 2021) (ECF No. 23). Owens has moved to suppress the introduction at trial of all evidence obtained as a result of a traffic stop of a car in which Owens was a passenger, conducted by state police on October 29, 2019 (ECF No. 32). He contends that the stop should have concluded after approximately eight and a half minutes with the issuance of a traffic citation to the car’s driver. Instead, the stop lasted for an additional thirty-eight minutes, at which point a canine sniff of the car resulted in a positive alert for the presence of drugs. On April 21, 2021, I conducted an evidentiary hearing by videoconference (ECF No. 65). For the reasons that follow, I grant the motion to suppress. I. FACTUAL BACKGROUND The October 2019 traffic stop was initiated and conducted primarily by Maine State Police Sergeant Thomas Pappas, who had participated in a previous traffic stop Case 2:20-cr-00041-JDL Document 78 Filed 07/13/21 Page 2 of 25 PageID #: <pageID> in June 2019 of a vehicle in which Owens was also a passenger. Because it is relevant to my analysis of the October stop, I begin with the June stop. A. The June 2019 Stop On June 27, 2019, a Maine State Police trooper stopped a car bearing New Jersey license plates heading south on the Maine Turnpike near York. Owens was a passenger in the car, and another man was driving. Both men were Black.1 Initially, the trooper told the driver that he had pulled the car over for speeding in a construction zone. Def.’s Ex. 1 at 1:50. After obtaining the driver’s information, the trooper asked Owens for his identification. Owens asked the trooper why he needed his ID, and the trooper responded that the occupants were “smoking marijuana in the car.” Id. at 2:25-2:30. The driver and Owens protested this assertion, and the driver asked if Owens could record the stop on his cell phone, id. at 2:33, but the trooper said that Owens’s recording was unnecessary because the trooper’s camera and microphone were on and the stop was being recorded, id. at 2:40-2:45. The driver then told Owens to “put it [the cell phone] on,” because he “want[ed] this recorded.” Id. at 2:46. The trooper said that he didn’t know why the driver was “giving [him] such a hard time,” id. at 2:51, and directed the driver to get out of the car for field sobriety tests, id. at 3:20. When the driver refused, the trooper returned to his cruiser 1 In his reply memorandum, Owens asserts that the June 2019 stop resulted from, and was shaped by, improper racial profiling: “[T]he Government asks the court to infer that because Defendant is black, wears dreadlocks, was traveling south in a car with New Jersey plates with a black driver who had cash, that he must be involved in illegal drugs. That is racial profiling, not reasonable suspicion.” ECF No. 39 at 9. Owens’s counsel did not question Sergeant Pappas regarding racial profiling, nor was it otherwise raised during the suppression hearing. For that reason, I treat it as abandoned and do not address it further. 2 Case 2:20-cr-00041-JDL Document 78 Filed 07/13/21 Page 3 of 25 PageID #: <pageID> and called for backup. Ultimately, Owens recorded much of the stop with his cell phone. After the driver exited the vehicle, he was administered field sobriety tests, which he passed without incident, but the trooper, now assisted by other troopers who had arrived on the scene, including Sergeant Pappas, handcuffed the driver and proceeded to search the car. Although Sergeant Pappas testified at the evidentiary hearing that the search was prompted by a positive dog sniff on the car, no dog sniff was ever conducted, as the Government conceded following the hearing. To effectuate the search, the troopers removed Owens from the car and frisked him, and the trooper who had initiated the stop (the “lead trooper”) told the other troopers that Owens had “been recording this whole time.” Id. at 21:15. During the search, Sergeant Pappas stood near Owens on the side of the road. In the course of the search, the troopers found about $5,000 in cash in the car. After additional questioning, the lead trooper issued the driver a ticket for speeding. As Owens and the driver prepared to leave, the driver made a remark— which is inaudible from the lead trooper’s microphone and in the dashcam video of the stop—that the troopers interpreted as an accusation that the troopers had taken some of the cash. Id. at 48:43. In response to the remark, Sergeant Pappas ordered the driver to get out of the car and count the money. Id. at 48:49. The driver complied, and after he finished counting the money, the stop ended and the troopers went on their way. Although Sergeant Pappas testified that it was Owens who challenged the troopers about the cash, it was the driver who voiced the challenge, as the Government conceded following the hearing. 3 Case 2:20-cr-00041-JDL Document 78 Filed 07/13/21 Page 4 of 25 PageID #: <pageID> The troopers’ comments throughout the stop, both to one another and to Owens and his companion, reflect that the troopers suspected that the driver and Owens were drug dealers who had sold drugs in Maine and would return again for the same purpose. For example, the lead trooper said to another trooper, “They [referring to Owens and the driver] just spent a couple days up here selling stuff,” although the troopers had found no evidence to support that assertion. Id. at 24:25. Also, the lead trooper said to Owens, “We get it man, there’s a good market here, make a lot of money here,” id. at 31:27; and “It’s nothing personal, man, you guys came up, you made a couple grand, you got away with it this time,” id. at 31:50. B. The October 2019 Stop A few months later, on October 29, 2019, Sergeant Pappas was on patrol on the Maine Turnpike when he noticed a black Kia Soul traveling northbound near Wells. It was 3:15 a.m. and raining, and the car initially drew Sergeant Pappas’s attention because it was following a tractor-trailer in the middle lane at an unsafely close distance, given the nighttime and weather conditions. Sergeant Pappas ran the car’s license plate and learned that the registration had expired several months earlier and that the car had not been reported stolen. He turned on his police cruiser’s emergency lights, and the car pulled over onto the left shoulder of the northbound travel lanes—that is, onto the shoulder of the median, rather than the right shoulder of the travel lanes. Sergeant Pappas pulled over to the right shoulder, and at his 4 Case 2:20-cr-00041-JDL Document 78 Filed 07/13/21 Page 5 of 25 PageID #: <pageID> verbal direction over his cruiser’s loudspeaker, the driver safely crossed the highway and stopped in front of Sergeant Pappas’s cruiser. Gov’t’s Ex. 1 at 2:25.2 Sergeant Pappas approached the passenger side of the car and met the occupants. Id. at 3:00. In addition to the driver, a white woman, Owens was seated in the front passenger seat, and there was another Black man lying down in the backseat. Sergeant Pappas recognized Owens from the June stop. In addition, Sergeant Pappas testified that the rear passenger was sleeping when he approached the car, which Sergeant Pappas viewed as suspicious. Sergeant Pappas also observed an intact, unused Q-tip resting on the car’s center console. Sergeant Pappas testified that the driver did not appear impaired. Sergeant Pappas asked the driver for her driver’s license, registration, and proof of insurance. Id. at 3:13. She produced an insurance card but did not have her license in the front of the car with her, and said that she had to retrieve it from the rear cargo area. Id. at 3:15. Sergeant Pappas also asked the rear passenger for his identification because he was not wearing a seatbelt, id. at 3:26-3:32, and the rear passenger produced his driver’s license, id. at 4:12, 7:00. Sergeant Pappas asked Owens for his ID as well, id. at 3:55; Owens said that he did not have his ID, but he told Sergeant Pappas his name, id. at 4:51. The driver also told Pappas that the car was not hers, but belonged to her boyfriend and his stepfather. Id. at 4:41. 2 “A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation.” Arizona v. Johnson, 555 U.S. 323, 333 (2009). For purposes of the timeline in this case, I treat the moment that the Kia crossed the highway to pull onto the right shoulder in front of Sergeant Pappas’s cruiser, rather than the moment that the car originally stopped on the median or the moment that Sergeant Pappas approached the car on foot, as the commencement of the stop.