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United States v. Agarwal

United States District Court, N.D. Georgia, Atlanta Division

April 6, 2018

UNITED STATES OF AMERICA
v.
SHYAM AGARWAL

          MAGISTRATE JUDGE'S REPORT, RECOMMENDATION, AND ORDER

          RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE

         Defendant Shyam Agarwal (“Agarwal”) is charged in a one-count indictment with intent to distribute a Schedule I controlled substance, AB-PINACA, AB-CHMINACA, and XLR11, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). [Doc. 1].[1] Agarwal has moved to suppress evidence obtained following a traffic stop that occurred on April 14, 2015. [Docs. 15 & 43]. After an evidentiary hearing held on November 30, 2017, [2] the parties filed post-hearing briefs on the motion. See [Docs. 48, 51, & 52]. For the reasons that follow, it is RECOMMENDED that Agarwal's motions to suppress, [Docs. 15 & 43], be DENIED.

         I. STATEMENT OF FACTS

         In connection with an investigation centered on the distribution of synthetic drugs in the Atlanta metropolitan area, Drug Enforcement Administration (“DEA”) Special Agent Sherezad Dunn (“Agent Dunn”) met with a confidential source (“CS”) sometime in 2014. (Tr. at 7, 23, 53).[3] The CS was introduced to Agarwal via a third party, who informed the CS that Agarwal was able to sell synthetic marijuana[4] to interested buyers. (Tr. at 7, 56). Agent Dunn then instructed the CS to contact Agarwal and inquire about obtaining synthetic marijuana. (Tr. at 8).

         During the first call, which was recorded and preserved, [5] the CS told Agarwal that he had a buyer-Agent Dunn, acting in an undercover capacity-interested in buying 2, 000 small packets and 1, 000 large packets of synthetic marijuana. (Tr. at 9-10); see also (Gov. Ex. 8). During the call, Agarwal and the CS referred to the synthetic marijuana as “chargers, ” and Agent Dunn testified that the reference to “chargers” was initiated by Agarwal. (Tr. at 10-11, 25; Gov. Ex. 8). Agarwal seemed surprised at the large amount requested, and he told the CS that he had already arranged to obtain 2, 000 packets from his supplier and would have to ask for the additional 1, 000 packets. (Tr. at 11-12; Gov. Ex. 8 at 3). Agarwal proposed to conduct the sale on Sunday, but the CS suggested they meet on Tuesday. (Tr. at 12-13; Gov. Ex. 8 at 4-6). At the end of the conversation, the CS asked Agarwal if his synthetic marijuana was the old one, and Agarwal said that it was “all good, ” and that the CS could open one or two packets to check. (Tr. at 13-14, 29; Gov. Ex. 8 at 16-17).[6] In a subsequent recorded call, Agarwal and the CS discussed whether the sale of the synthetic marijuana would happen on Sunday or Tuesday. (Tr. at 15); see also (Gov. Ex. 9). The CS explained that the supposed purchaser needed the extra time to collect the money for the purchase. (Tr. at 15; Gov. Ex 9 at 3). The CS and Agarwal ultimately agreed, in a later unrecorded phone call, to conduct the transaction on Tuesday. (Tr. at 16, 27).[7]

         Once the CS and Agarwal settled on the meeting date, DEA agents contacted a supervisor at the Georgia State Patrol (“GSP”) to request assistance on the day of the drug deal. (Tr. at 16). GSP Trooper Jeremy Lipham (“Trooper Lipham”) of the Criminal Interdiction Unit contacted Agent Dunn, and she asked him to attend the DEA briefing the morning of the scheduled buy between the CS and Agarwal. (Tr. at 16, 30-31, 63). On the morning of April 14, 2015, Trooper Lipham and GSP Trooper Nick Wilson (“Trooper Wilson”) attended the DEA briefing and were informed that Agarwal and the CS were going to meet at a designated location, at which the CS would check to see if Agarwal had the synthetic marijuana, and that both the CS and Agarwal would drive to a second location, where the CS's buyer was supposed to be waiting, to drop off the synthetic marijuana and pick up the money. (Tr. at 17, 29, 31, 65-66, 97). Trooper Lipham was instructed to wait in the general area of the meeting, and once he was alerted that Agarwal was driving to the second location, Trooper Lipham would follow Agarwal's vehicle and eventually conduct a traffic stop. (Tr. at 17-18, 30-31). Agent Dunn requested that Trooper Lipham attempt to find an independent reason to stop Agarwal's vehicle, if possible, after his meeting with the CS. (Tr. at 30, 32).[8] At the time of the DEA briefing on the morning of April 14, 2015, law enforcement was not aware of what make and model vehicle Agarwal would be driving. (Tr. at 18). Therefore, Trooper Lipham had to have “radio communication” with the DEA agents as the drug deal unfolded in order to learn the description of Agarwal's vehicle, as well as the timing of the transaction and the location of the vehicle in order to attempt to make the stop. (Tr. at 17-18).[9]

         Later that day, Agent Dunn conducted surveillance near the CS and Agarwal's planned meeting spot. (Tr. at 18). Agent Dunn was also listening to DEA radio communications to stay apprised of Agarwal's activity. (Id.). Trooper Lipham was also in the area, receiving updates from the DEA agents, who were monitoring the scene. (Tr. at 17-18, 33-34, 67). Trooper Lipham testified that he typically stayed in touch with DEA agents during these type of operations via a DEA radio, and while he did not recall if his patrol car had a DEA radio that day, he did recall that he had cellular telephones designated for communication with each particular agency or group. (Tr. at 66-67).

         Agarwal and the CS both arrived at the predetermined location, which was a gas station close to Agarwal's home, on April 14, 2015. (Tr. at 18-19). Agarwal arrived driving a Toyota Sienna, (Tr. at 19-20), and asked the CS to leave the gas station and drive to Agarwal's nearby apartment complex, (Tr. at 18, 51). Agent Dunn saw Agarwal and the CS, in their respective vehicles, drive to the complex and park in parking spaces near a white Toyota Matrix. (Tr. at 19). She also saw three males standing outside the vehicles talking, and she then observed a cardboard box, which she believed contained synthetic marijuana, be moved from the white Toyota Matrix to Agarwal's vehicle. (Tr. at 19-20, 52-53, 57). Agent Dunn subsequently observed all three men return to their own vehicles and leave the apartment complex. (Tr. at 20). This was consistent with the plan previously established between the CS and Agarwal. (Tr. at 20-21). Via the DEA radio, Agent Dunn communicated that the vehicles were leaving the apartment complex, and she or another agent announced over the radio which vehicle Agarwal was driving. (Tr. at 21). After momentarily remaining at the scene, Agent Dunn drove in the same direction as Agarwal's vehicle. (Id.).

         At this time, Trooper Lipham headed in the direction of Agarwal's vehicle. [Doc. 51 at 7]. Tooper Lipham followed Agarwal's vehicle, and as they were preparing to get onto the interstate, he observed that the driver's side brake light on the vehicle was not functioning. (Tr. at 68).[10] While traveling north on Interstate 85, Trooper Lipham activated his blue lights to initiate a traffic stop. (Gov. Ex. 10; Tr. at 68). Agarwal pulled to the side of the road, and Trooper Lipham parked behind Agarwal's vehicle, exited his patrol car, and approached the passenger side window of Agarwal's vehicle. (Tr. at 69; Gov. Ex. 1 at 00:53-00:59). Trooper Lipham identified himself to Agarwal and told Agarwal why he had stopped his vehicle, and he asked for Agarwal's license, registration, and insurance. (Tr. at 69; Gov. Ex. 1 at 1:00-1:25). It took several minutes for Agarwal to locate these documents, and as he was looking for them, Trooper Lipham asked him several questions, including if the Toyota Sienna was his vehicle, if he had been drinking, what he did for a living, if he was on probation or parole, and “why he was so nervous.” (Tr. at 70; Gov. Ex. 1 at 1:25-5:30). Agarwal answered the questions, stating, among other things, that his brake light was loose, (Gov. Ex. 1 at 1:10); see also (Tr. at 74-75), and that he owned a convenience store in Arkansas, (Gov. Ex. 1 at 3:15-3:35). After about four minutes, Agarwal handed all of the requested documents to Trooper Lipham, who reviewed them, and asked Agarwal what was in the boxes in his back seat, (Gov. Ex. 1 at 5:30-5:38), and Agarwal said that he had pills in them, but that he was not a pharmacist, (Gov. Ex. 1 at 5:40-6:20). Trooper Lipham then asked Agarwal to step out of his vehicle to better communicate with Agarwal because Trooper Lipham was having trouble hearing Agarwal due to loud road noise and a “slight language barrier.” (Tr. at 70; Gov. Ex. 1 at 6:25-6:40).[11]

         While Trooper Lipham was speaking with Agarwal outside the vehicle, he could see “three very large cardboard boxes” in the Toyota Sienna. (Tr. at 71, 93). Agarwal told Trooper Lipham that sexual enhancement pills were inside the large boxes in his vehicle and repeated that he was not a pharmacist. (Tr. at 71-72, 93; Gov. Ex. 1 at 6:46). Trooper Lipham could also see that one of the cardboard boxes inside Agarwal's vehicle was open and contained pills. (Tr. at 72). Based on his training and experience, Trooper Lipham testified that items marketed as sexual enhancement pills sometimes had their original contents removed and were refilled with controlled substances, including methamphetamine, heroin, cocaine, and synthetic marijuana. (Id.). He also testified that the information he received at the briefing with the DEA contributed to his level of suspicion because he was told Agarwal “would have a large quantity of synthetic marijuana, ” and he “didn't know if it was synthetic marijuana that was contained within those capsules in the large package.” (Id.).

         Trooper Lipham left Agarwal standing beside his vehicle and returned to his patrol car to run a check on Agarwal's driver's license, insurance, and vehicle registration. (Tr. at 73; Gov. Ex. 1 at 7:00). Trooper Lipham also confirmed that his GPS location and video camera were working properly. (Tr. at 74).[12] While Trooper Lipham was in his patrol car, Trooper Wilson arrived on the scene. (Gov. Ex. 1 at 7:35). After a few minutes, Trooper Lipham received the confirmation regarding Agarwal's license, tag, and insurance status. (Tr. at 74; Gov. Ex. 1 at 10:26). Trooper Lipham exited his patrol car, (Gov. Ex. 1 at 11:05), and approached Agarwal and asked if he had a bulb to fix the brake light, (Tr. at 75; Gov. Ex. 1 at 11:10-11:30). Although he had earlier acknowledged that his brake light had a loose wire, Agarwal claimed that his brake light had never been out. (Tr. at 75; Gov. Ex. 1 at 11:33).[13] Trooper Lipham asked Agarwal where he got the pills and if the pills in his vehicle were illegal, and Agarwal responded that they were legal in America. (Tr. at 76; Gov. Ex. 1 at 11:51-12:15). Trooper Lipham then asked Agarwal if he cared if he took a look at them, and Agarwal responded, “No, ” and “pointed at the vehicle.” (Tr. at 76-77); see also (Gov. Ex. 1 at 12:20). Trooper Lipham went to Trooper Wilson's patrol car to get a copy of a written consent to search form. (Tr. at 77; Gov. Ex. 1 at 12:26). He obtained the form and returned to Agarwal, told him it was a consent to search form that gave them permission to look at the stuff in his vehicle, confirmed that Agarwal could understand and read English, and asked Agarwal to read the form and, if he agreed with it, to sign it. (Tr. at 78; Gov. Ex. 1 at 14:05-14:30).

         Agarwal signed the written consent to search form, (Tr. at 78; Gov. Ex. 1 at 15:04; Gov. Ex. 4), which had a time stamp of 12:35, (Tr. at 81; Gov. Ex. 4).[14] While Trooper Wilson stood at the patrol car, Trooper Lipham searched Agarwal's vehicle and located three cardboard boxes, inside which he found what appeared to be synthetic marijuana in bags, as well as purported sexual enhancement pills. (Tr. at 80-81, 84, 98; Gov. Exs. 6 & 7); see also (Gov. Ex. 1 at 15:26-53:50). After gathering the evidence from Agarwal's vehicle, Trooper Lipham returned his license, gave him an inventory form listing everything that was taken, told him that anything that was not illegal would be returned to him, and allowed Agarwal to leave.[15] (Tr. at 84; Gov. Ex. 1 at 2:40-4:30[16]). At some point, Trooper Lipham also gave Agarwal a courtesy warning, with a time stamp of 12:33. (Tr. at 81; Gov. Ex. 10).[17] Agent Dunn took possession of the synthetic marijuana seized from Agarwal's vehicle and sent it to the crime lab for testing. (Tr. at 21); [Doc. 51 at 10].

         II. DISCUSSION

         Agarwal contends that “all evidence obtained pursuant to law enforcement's search of [his] vehicle should be suppressed because [] the initial traffic stop was made without any reasonable articulable suspicion that any crime had occurred; and [] troopers impermissibly extended the scope and duration of the traffic stop[.]” [Doc. 43 at 11]. The government responds that “law enforcement had probable cause to both stop and search . . . Agarwal's vehicle for contraband.” [Doc. 51 at 1]. In particular, the government asserts that “Trooper Lipham had probable cause to stop Agarwal's vehicle based on the DEA investigation, as those facts are imputed to him via the collective knowledge doctrine” and that “even if probable cause did not exist based on the DEA investigation, there was at least reasonable suspicion to stop Agarwal's vehicle, the length of the stop was reasonable under the Fourth Amendment, and [he] consented to the search of his vehicle.” [Id. at 1-2].

         A. Probable Cause to Initiate the Traffic Stop

          “The Fourth Amendment protects individuals from unreasonable search and seizure.” United States v. Rowls, 402 Fed.Appx. 467, 468 (11th Cir. 2010) (per curiam) (unpublished) (citation and internal marks omitted). The “[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure' of ‘persons' within the meaning of [the Fourth Amendment].” Whren v. United States, 517 U.S. 806, 809-10 (1996) (citations omitted); see also United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001); United States v. Edenilson-Reyes, Criminal Action File No. 1:09-CR-00361-RWS-AJB, 2010 WL 5620439, at *9 (N.D.Ga. Oct. 26, 2010), adopted by 2011 WL 195679, at *1 (N.D.Ga. Jan. 20, 2011).

         A traffic stop is reasonable if the officer had probable cause to believe that a traffic violation has occurred, or if the traffic stop is justified by reasonable suspicion in compliance with Terry v. Ohio, 392 U.S. 1 (1968). Edenilson-Reyes, 2010 WL 5620439, at *9 (citing United States v. Spoerke, 568 F.3d 1236, 1248 (11th Cir. 2009); Purcell, 236 F.3d at 1277); see also United States v. Monzon-Gomez, 244 Fed.Appx. 954, 959 (11th Cir. 2007) (per curiam) (unpublished); United States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999); United States v. Sierra, Cr. No. 2:10cr183-MEF, 2011 WL 1675217, at *2 (M.D. Ala. Apr. 19, 2011), adopted by 2011 WL 1675180, at *1 (M.D. Ala. May 4, 2011), aff'd by 501 Fed.Appx. 900 (11th Cir. 2012) (per curiam) (unpublished). Thus, “[a] traffic stop . . . is constitutional if it is either based upon probable cause to believe a traffic violation has occurred or justified by reasonable suspicion. . . .”[18] Edenilson-Reyes, 2010 WL 5620439, at *9 (alterations in original) (citations and internal marks omitted); see also United States v. Boyd, 388 Fed.Appx. 943, 947 (11th Cir. 2010) (per curiam) (unpublished); United States v. Woods, 385 Fed.Appx. 914, 915 (11th Cir. 2010) (per curiam) (unpublished). The government bears the burden of presenting facts to establish that the traffic stop is supported by reasonable suspicion or probable cause. See Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984); see also United States v. Kelly, No. 1:13-cr-108-WSD-JSA, 2014 WL 1153375, at *8 (N.D.Ga. Mar. 21, 2014), adopted at *4 (citations omitted).

         An officer's subjective intentions and motives are irrelevant where the officer has probable cause for the stop. See United States v. Mwangi, Criminal File No. 1:09-CR-107-TWT, 2010 WL 520793, at *3 n.9 (N.D.Ga. Feb. 5, 2010), adopted at *1 (citations omitted); see also United States v. Arango, 396 Fed.Appx. 631, 632-33 (11th Cir. 2010) (per curiam) (unpublished) (citation and internal marks omitted) (“Where objectively reasonable conditions permit a stop, the officer's motive in making the traffic stop does not invalidate what is otherwise objectively justifiable behavior under the Fourth Amendment.”); Miller v. Harget, 458 F.3d 1251, 1260 (11th Cir. 2006) (citations omitted) (“It is well-settled that an officer's subjective motivations do not affect whether probable cause existed”); United States v. Jimenez, No. 2:06-cr-74-FtM-29DNF, 2006 WL 2927477, at *2 (M.D. Fla. Oct. 11, 2006) (holding that “an officer's belief that he has probable cause or does not have probable cause is simply not a pertinent factor” in determining whether an arrest is lawful). That is, “if the driver of a car has broken a traffic law, no matter how relatively minor, a motion to suppress evidence cannot be based on the argument that the stop was pretextual.” United States v. Wright, No. CR210-022, 2010 WL 4967468, at *1 (S.D. Ga. Nov. 5, 2010), adopted by 2010 WL 4967838, at *1 (S.D. Ga. Dec. 1, 2010) (citation omitted).

         In addition, “[t]he propriety of the traffic stop [] does not depend on whether the defendant is actually guilty of committing a traffic offense.” United States v. Sicairos-Sicairos, Criminal Action File No. 4:10-CR-054-HLM, 2011 WL 2710031, at *5 (N.D.Ga. July 11, 2011) (citation omitted). “Instead, the relevant question is whether it was reasonable for the officer to believe that a traffic offense had been committed.” Id. (citation omitted).

         Agarwal argues that the traffic stop was not supported by probable cause or articulable suspicion. [Doc. 43 at 13]. In particular, he asserts that “there simply is nothing substantiating [] Trooper[ Lipham's] claim [he] was speeding or failing to maintain his lane” and “it is clear [Trooper Lipham] did not notice [his] faulty brake light until after the stop had been initiated.” [Id.].

         “Georgia law states that if a ‘motor vehicle is manufactured with two brake lights, both must be operational.'” United States v. Terry, 220 Fed.Appx. 961, 963 (11th Cir. 2007) (per curiam) (unpublished) (quoting O.C.G.A. § 40-8-25(b)). Trooper Lipham testified that the reason he stopped Agarwal's vehicle was because it had a brake light out. (Tr. at 68). Contrary to Agarwal's assertion, Trooper Lipham testified that he observed that Agarwal's brake light was out before he initiated the stop. (Id.). Agarwal has made “no showing [] that the taillight of [his] vehicle was operational on April [14, 2015], and, therefore, no evidence that [Trooper Lipham's] testimony is not entitled to deference.” United States v. Mackey, 149 Fed.Appx. 874, 879 (11th Cir. 2005) (per curiam) (unpublished). Based on this uncontradicted testimony, Trooper Lipham “had probable cause to stop [Agarwal] on the basis that he was violating [a] traffic regulation[].” Terry, 220 Fed.Appx. at 963.

         Trooper Lipham's testimony established that he had probable cause to believe that Agarwal had violated Georgia law, which is “all that is necessary to conduct a traffic stop.” United States v. Alvardo, No. 8:10-CR-348-T-30TGW, 2010 WL 5262736, at *5 (M.D. Fla. Nov. 17, 2010), adopted by 2010 WL 5262735, at *1 (M.D. Fla. Dec. 17, 2010) (citing Whren, 517 U.S. at 810). Having considered the evidence and testimony presented at the evidentiary hearing, the “Court finds [Trooper Lipham's] testimony [that he observed that Agarwal's brake like was out] reliable and credible.” United States v. Abarca, No. 1:12cr29-MW/GRJ, 2014 WL 12641951, at *6 (N.D. Fla. Nov. 20, 2014); see also United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004) (recognizing that credibility determinations are “within the province of the factfinder”). Therefore, Trooper Lipham had probable cause to stop Agarwal.[19]

         B. Scope and Duration ...


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