USA v . Platte 05-CR-208-JD 1/16/07
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. N o . 05-cr-208-JD
Opinion N o . 2007 DNH 006
Jonathan Platte
O R D E R
Defendant Jonathan Platte moves to suppress the alleged
controlled substances that were seized from the trunk of a car
that was parked in the garage of his residence. The government
objects and intends to introduce these materials as evidence in
an upcoming trial charging the defendant with (1) conspiracy to
distribute, and to possess with intent to distribute, cocaine,
cocaine base, and heroin, (2) possession with intent to
distribute heroin, cocaine, and marijuana, and (3) possession of
a firearm in furtherance of a drug trafficking crime. See 21
U.S.C. §§ 841(a)(1), 846;
18 U.S.C. § 924(c)(1)(A). On January
8 , 2007, the court held a hearing on Platte’s motion.
Background
In early 2004, the New Hampshire State Police Narcotics
Investigation Unit (“NIU”) began an investigation of a suspected
large-scale cocaine, crack, and heroin distribution ring
operating in several towns in southern Hillsborough County, New
Hampshire. On April 1 2 , 2005, NIU Sergeant Ellen M . Arcieri
applied for a warrant to search Platte’s residence in Wilton, New
Hampshire. Sergeant Arcieri’s application was accompanied by a
detailed affidavit describing the investigation, including the
statements of four confidential informants and an account of the
physical surveillance conducted by police. The affidavit
describes a substantial drug distribution operation that involved
the participation of several co-conspirators. Platte is
portrayed as the leader of the operation.
According to the warrant affidavit, Platte regularly
traveled to Massachusetts to purchase substantial quantities of
drugs (most often cocaine, crack, and heroin). Platte did not
travel alone on these pickups; one or two co-conspirators usually
accompanied him in separate cars. According to the confidential
informants, these trips to Massachusetts occurred as often as
three times a week, with each trip netting $3,000 to $10,000
worth of drugs. Platte would then bring the drugs back to his
parents’ ranch-style house in Wilton.
Platte lived in a basement apartment in the house and his
parents lived upstairs. Platte and his co-conspirators would
repackage the drugs for sale in a loft above an attached two-car
garage. “Runners” were then paid to sell “kits” containing
specific amounts of crack, cocaine, and heroin. At the time
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Sergeant Arcieri applied for the search warrant, the police
believed that four people lived at the Wilton residence: Platte,
his parents, Lawrence and Linda Platte, and his girlfriend, Kerry
O’Connor.
Based on Arcieri’s affidavit, a justice of the Concord
District Court found probable cause to believe that evidence of
an illegal drug distribution organization would be found at the
Platte residence in Wilton. The court authorized a search of
that residence, including:
Jonathan Platte’s basement apartment and Lawrence and
Linda Platte’s residence on the second floor as well as
the two-car garage and loft area. . . . includ[ing] any
and all outbuildings, sheds, and any other areas
located within the residence occupied by either
Jonathan Platte, Lawrence and Linda Platte, and Kerry
O’Connor.
Warrant, Attach. B (summarizing Attach. A ) . The warrant also
authorized the search of any “vehicles owned and/or operated by
Jonathan Platte, Lawrence Platte, Linda Platte, and Kerry
O’Connor,” and specifically listed a number of “known vehicles.”
Warrant, Attach. A . The warrant authorized a search for evidence
relating to a drug distribution organization, including such
things as books, ledgers, receipts, phone records, currency, drug
paraphernalia, and firearms, but did not specifically authorize a
search for controlled substances. Warrant, Attach. B .
3
The state police executed the search warrant on April 1 4 ,
2005. Trooper Scott Frye was assigned the task of cataloguing
all the items seized. His report indicates that fourteen members
of the state police and the Chief of the Wilton Police Department
participated in the search. The state police also brought a drug
detection dog, Hunter, and its handler, Trooper Daniel Needham.
Although the warrant did not authorize a search for drugs, both
Needham and Arcieri testified at the suppression hearing that it
is not unusual to use a drug detection dog in a search for drug
paraphernalia because they can detect trace amounts of drugs on
scales, plastic bags, and other such items. Although Platte was
not present at the time of the search, both of his parents and
O’Connor were.
The search resulted in the seizure of several items found in
different locations throughout the premises. According to
Needham, he and Hunter began with a sweep of the interior of the
house. Needham testified that the dog alerted in several
different locations in the house. Thereafter, Needham brought
Hunter to investigate the several cars located on the exterior of
the house. After that search proved fruitless, Needham allowed
Hunter to rest while he went into the garage to aid in the search
of the loft above the garage.
4
Needham next began a search of the garage itself. Inside
the garage were a number of tool chests, some all-terrain
vehicles, and a red Subaru Impreza. Although the Subaru’s doors
were unlocked, the rear of the car was parked against the garage
door in such a way that the trunk could not be opened. Needham
opened the front passenger door and smelled the odor of
marijuana. He noticed that the odor was stronger toward the rear
of the car. Finding nothing in the backseat he endeavored to
obtain entry into the trunk. Because the trunk would not open,
Needham gained entry to the trunk by pulling the rear seats down.
Peering inside the trunk with a flashlight, Needham saw a black
leather bag containing a brown paper bag. He seized the bags and
ultimately discovered what he believed to be three pounds of
marijuana inside.
Needham subsequently retrieved Hunter, who then sniffed
around the exterior of the car and alerted to the trunk area.
Needham testified that he saw a box for a video surveillance
camera in the trunk, but he did not remove i t . At some point
thereafter, another officer removed the box and found what
appeared to be plastic bags containing heroin and cocaine.
Platte now moves to suppress all evidence seized from the
Subaru. He argues that the search of the Subaru was not
authorized by the search warrant and therefore violated his
5
rights under the Fourth Amendment. The government objects with a
trio of arguments. First, the government contends that the
defendant lacks standing to challenge the search of the Subaru.
Second, the government argues the search of the Subaru was within
the scope of the warrant. Finally, the government argues that
the police dog’s detection of controlled substances in the trunk
of the car established probable cause to search the car
independent of the warrant.
At the outset, it is necessary to frame the parameters of
the defendant’s challenge. Four related, but separate incidents
occurred that are relevant to the challenged search: (1) the
search of the garage; (2) the search of the car; (3) the seizure
of containers found in the trunk of the car; and (4) the search
of those containers. The defendant has challenged only the
search of the car. The first question is whether the defendant
has standing to challenge that search. See United States v .
Aguirre, 839 F.2d 8 5 4 , 856 (1st Cir. 1988).
Standing
When a defendant challenges a search under the Fourth
Amendment, he must first establish that he had a reasonable
expectation of privacy in the thing searched. United States v .
Romain, 393 F.3d 6 3 , 68 (1st Cir. 2004) (defendant’s burden); see
6
also United States v . Sanchez, 943 F.2d 1 1 0 , 113 n.1 (1st Cir.
1991) (“[T]he term ‘standing’ [is used] somewhat imprecisely to
refer to this threshold substantive determination.”). There are
several factors that are pertinent to the threshold inquiry:
ownership, possession, and/or control; historical use
of the property searched or the thing seized; ability
to regulate access; the totality of the surrounding
circumstances; the existence or nonexistence of a
subjective anticipation of privacy; and the objective
reasonableness of such an expectancy under the facts of
a given case.
Sanchez, 943 F.2d at 113.
The government argues that the defendant has failed to
present facts establishing that “he had any ownership interest in
the vehicle and/or any possessory interest in any thing seized
from the vehicle.” O b j . at 7 . But Platte asserts that, although
he did not own the Subaru, he was the bailee of the car. He
claims that a few days before the search warrant was executed,
his sister had towed the Subaru to his garage and placed it in
his custody for the purpose of replacing its motor.1 An
affidavit filed by his sister similarly states that she “placed
[the car] into his sole custody for repairs.” True Aff. At the
suppression hearing, Platte testified that he had removed the old
1
Platte claims that he ran an auto repair shop out of the
garage and the warrant affidavit notes that two confidential
informants had stated that Platte periodically worked on vehicles
in the garage.
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motor and was preparing to install a new one. Trooper Needham’s
police report confirms that the engine had been removed. On
cross-examination, Platte denied that the drugs in the car
belonged to him and claimed that he was unaware of their presence
in the car. The government attempted to impeach the defendant’s
testimony by drawing his credibility into question. Given the
corroboration in the record, however, the court will credit the
defendant’s testimony for the purposes of deciding this motion.
Generally, a person in possession of a premises has standing
to challenge a search of those premises and a seizure of any
objects found within. 6 Wayne R. LaFave, Search and Seizure §
11.3(a) (4th ed. 2004). But, to the extent the police presence
on the premises was otherwise lawful, such a person does not
necessarily have standing to challenge the search of a container
belonging to another that is found within the premises. See id.;
United States v . Garcia-Rosa, 876 F.2d 209, 218-19 (1st Cir.
1989) (finding standing regarding the search of the defendant’s
house and the seizure of a box found within, but no standing
regarding the search of the box, which the defendant claimed was
not h i s ) , vacated on other grounds sub nom. Rivera-Feliciano v .
United States,
498 U.S. 954 (1990).
In the totality of the circumstances, the court concludes
that Platte had both a subjective and a reasonable expectation of
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privacy in the Subaru. Although the car was not registered to
Platte, he had lawful possession of it and “took normal
precautions to maintain his privacy” by keeping the car parked
inside his garage.2 United States v . Gomez, 276 F.3d 6 9 4 , 697-98
(5th Cir. 2001) (finding the defendant had a reasonable
expectation of privacy in a truck he did not own that was parked
in his driveway). He exercised significant control over the car
as evidenced by his removal of the car’s motor. Moreover, his
sister gave him sole custody of the car and he did not allow
anyone else to access i t . C f . United States v . Baker,
221 F.3d
438, 442-43 (3d Cir. 2000) (finding the defendant had a
reasonable expectation of privacy in a car that he had borrowed
with permission from a friend); United States v . Orrego-
Fernandez,
78 F.3d 1497, 1502 (10th Cir. 1996) (“Where the
defendant offers sufficient evidence indicating that he has
permission of the owner to use the vehicle, the defendant plainly
has a reasonable expectation of privacy in the vehicle.”).
This is not a case of “casual possession.” Sanchez, 943
F.2d at 113-14. Unlike the defendant in Sanchez, Platte was
given “direct authority” from the owner to possess the car, and
2
That Platte was not the legal owner of the house and the
attached garage is not significant. See United States v .
Paradis, 351 F.3d 2 1 , 27 (1st Cir. 2003); United States v . Evans,
92 F.3d 5 4 0 , 543 (7th Cir. 1996) (Posner, J . ) .
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Platte’s relationship with the owner -- his sister and a customer
of his auto shop -- is well established. See id. at 114 (noting
that, had the defendant “demonstrated a more intimate
relationship with the car’s owner or a history of regular use of
the [car],” the court would have been more likely to find a
legitimate expectation of privacy). 3 Platte, therefore, has
standing to challenge the search.
The Search
Platte contends that a search of the Subaru was not within
the scope of the search warrant and, therefore, that Needham’s
search of the car violated the Fourth Amendment’s prohibition
against unreasonable searches and seizures. Platte notes that
the Subaru was not included in the warrant’s list of “known”
vehicles and that it was registered to Platte’s sister who was
not named in the warrant. Platte contends that Needham found the
car’s registration -- indicating that the car was owned by
someone outside the warrant -- before he found the drugs in the
trunk. At that moment, Platte argues, it became apparent that
3
Although Platte’s denial of any ownership interest in the
things seized from the car cuts against his standing argument, in
the totality of the circumstances presented here, this one factor
does not tip the balance in favor of denying standing to Platte.
See Sanchez, 943 F.2d at 113-14.
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the Subaru was outside the scope of the warrant and Needham
should have immediately discontinued his search of the car.
The sequence of events, however, is unclear. Frye’s report
indicates that three events -- the discovery of (1) the
marijuana, (2) the registration, and (3) the cocaine and heroin -
- all occurred at approximately 8:25 p.m. Although the events
are listed in that order, it does not appear that Frye’s report
was written in strict chronological order. Needham’s report does
not mention the discovery of the registration and at the
suppression hearing he testified that he did not recall finding
the registration. Nevertheless, even accepting Platte’s version
of the sequence of events, the search of the Subaru did not fall
outside the scope of the warrant.
As a general rule, “any container situated within
residential premises which are the subject of a validly-issued
warrant may be searched if it is reasonable to believe that the
container could conceal items of the kind portrayed in the
warrant.” United States v . Gray, 814 F.2d 4 9 , 51 (1st Cir. 1987)
(citing United States v . Ross,
456 U.S. 7 9 8 , 820-21 (1982). A
car parked in a garage is ordinarily considered “just another
interior container, like a closet or a desk.” United States v .
Evans,
92 F.3d 5 4 0 , 543 (7th Cir. 1996) (Posner, J . ) . Thus, if
the trunk of the car “is not too small to hold what the search
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warrant authorizes the police to look for, they can search the
trunk.” Id.; accord. United States v . Asselin, 775 F.2d 445, 447
(1st Cir. 1985) (upholding the search of a disabled car parked
adjacent to a carport that was attached to the premises).
Platte’s argument suggests that the search of the car was
not authorized by the plain language of the warrant itself. But
the warrant specifically authorized the search of the attached
garage and “any outbuildings and vehicles owned and/or operated
by Jonathan Platte, Lawrence Platte, Linda Platte, and Kerry
O’Connor.” It then listed the “known vehicles,” but that list
was plainly not intended to amount to an exclusive list or to
narrow the scope of the warrant. C f . United States v .
Pennington, 287 F.3d 739, 745 (8th Cir. 2002) (“Though these
vehicles were not specifically listed in the warrant as places to
be searched, a vehicle found on a premises (except, for example,
the vehicle of a guest or other caller) is considered to be
included within the scope of a warrant authorizing a search of
that premises.”) (internal quotation marks omitted).
The sin qua non factor of the scope-of-the-warrant inquiry,
as in the standing inquiry, is the extent of the dominion and
control exerted by Platte over the thing searched. See United
States v . Patterson, 278 F.3d 315, 318 (4th Cir. 2002) (“Where a
warrant authorizes the search of an entire property or premises,
12
the scope of the warrant includes automobiles on the property or
premises that are owned by or are under the dominion and control
of the premises owner or which reasonably appear to be so
controlled.”); United States v . Gottschalk, 915 F.2d 1459, 1461
(10th Cir. 1990) (same). Thus, the facts that supported Platte’s
standing argument -- the facts outlined above establishing
Platte’s status as a bailee with exclusive control over the car -
- cut against his merits argument. In the circumstances of this
case, the fact that the car was registered to a person not
mentioned in the warrant does not provide a basis for challenging
the search. See Evans,
92 F.3d at 543-44 (“[I]t does not matter
[who owns the car] unless it obviously belonged to someone wholly
uninvolved in the criminal activities going on in the house.”).
Platte attempts to seize on the above-quoted language from
Evans, arguing that, once Needham discovered the registration, it
became “obvious” that the car “belonged to someone wholly
uninvolved” in Platte’s criminal activities. But the record
underlying the warrant belies this contention. According to the
warrant affidavit, one of the confidential informants stated that
Platte commonly had other people register his vehicles in their
names in order to protect his identity and impede any police
investigation. Warrant Aff. at 8-9. Thus, that the car was
registered in the name of Platte’s sister did not make it obvious
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that the car truly belonged to her. Moreover, two other
informants stated that Platte often hid his drugs in cars parked
on the property,4 and that Platte kept a loaded handgun in his
car for his trips to Massachusetts to buy drugs. Warrant Aff. at
36. Although the police were not aware that Platte had used the
Subaru for drug pickups, they were aware that Platte frequently
switched cars. Hearing T r . at 2 5 . Thus, there was reason to
believe that drug paraphernalia or firearms might be found in any
of the cars parked on the premises. See Pennington, 287 F.3d at
745 (upholding the search of a truck where “the warrant affidavit
specifically stated that [the defendant] ‘often carries
methamphetamine in his personal vehicle’”). Accordingly, the
Subaru fell within the scope of the warrant and its search did
not violate the Fourth Amendment.5
4
One of the informants specifically stated that Platte
stored drugs in “cars he was working on.” Warrant Aff. at 2 1 .
5
Because the warrant authorized Needham’s search, the court
needn’t consider the government’s dubious contention that the
police dog’s post-hoc detection provided probable cause for the
search of a disabled car.
14
Conclusion
The defendant’s motion to suppress (document n o . 31) is
denied.
SO ORDERED.
roseph A. DiClerico, Jr.
United States District Judge
January 1 6 , 2007
cc: Paul J. Garrity, Esquire
Terry L . Ollila, Esquire
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