UNITED STATES OF AMERICA, ) CR.No. 98-10000-WGY

                                                        ) SUPPLEMENTAL MEMORANDUM IN

                    vs                                 ) SUPPORT OF  MOTION TO SUPPRESS

                                                        ) AUTO STOP & SEARCH

JASON SMITH               Defendant)

____________________________)

On January 29,1998 Mr. SMITH was stopped by Massachusetts State Trooper Serpa purportedly on the basis of "various vehicle violations." See: Second Affidavit of Trooper Serpa along with his first affidavit which are attached hereto as "Exhibit A." The government has at all times maintained that the basis for the stop was the moving violations and that SMITH was asked to exit the vehicle to answer questions concerning identification. The Trooper also alleged that SMITH appeared "nervous." See Government's Memorandum in Opposition April, 2, 1999 at 2. Defendant reasonably believes, as will be set forth during the hearing on this motion, that Defendant was not stopped for moving violations, that the government agents were fully aware of his identity, and that he was directed to be stopped because the government agents unreasonably suspected that he possessed contraband based on the information the agents then had.

According to the Trooper, when he stopped SMITH and asked him for his license and registration, SMITH indicated that he did not have those papers and gave the name of "Paul J. Boone." The Trooper then allegedly asked additional questions concerning identification the answers to which caused him "[a]t that point, [to] believe[] that the driver was giving [him] false information." Mr. SMITH was ordered from the vehicle. Trooper Serpa then allegedly asked if he could check SMITH's pockets with SMITH replying that he would "remove everything if you want me to." When Trooper Serpa saw a "noticeable bulge" in the left pocket of SMITH's pants which he "believed [] might contain identification," he then asked what it was; to which SMITH replied: "I don't know." The Trooper next asked SMITH to remove the item. SMITH removed a baggie containing "smaller baggies of a brown rock like substance...believed to be crack cocaine." Only then was Mr. SMITH placed under arrest. The government asserts that this encounter and "search" was entirely "consensual." Gov. Opposition at 6-7.

After Mr. SMITH's arrest, SMITH allegedly made several "voluntary" statements concerning the contraband. These statements were allegedly made after he was Mirandized and agreed to speak with the Trooper. See Government Memorandum in Opposition to Motion to Suppress Physical and Testimonial Evidence 7/22/98. Mr. SMITH has denied that he consented to the search and consented to providing any statements to the Trooper. See SMITH affidavit which is attached as "Exhibit B."

Whether the officer's basis for the stop is reasonable is a fact specific inquiry. See United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994) (noting that "[t]here is no scientifically precise formula that enables courts to distinguish between valid investigatory stops and de facto arrests"). The Supreme Court has directed that courts make an inquiry to examine "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." United States v. Sharpe, 470 U.S. 675, 686 (1985) (citations omitted).

In the instant case, the focus of the Trooper's inquiry was not, as asserted, on any alleged traffic violation, or the failure to produce identification, but a stop, detention and search to determine whether SMITH was carrying cocaine. What should become clear from the hearing on this motion is that the stop itself was not based on any probable cause, or reasonable suspicion of criminal activity that would justify the stop and seizure herein.

The evidence that is expected to be produced at this hearing should demonstrate that the stop and search herein was predicated on wiretap interceptions of co-defendant Jones and constant surveillance of Mr. SMITH on January 29, 1998 that resulted in Mr. SMITH being stopped, detained and searched. The allegation that Mr. SMITH had committed traffic violations was merely a pretext for the Troopers intent to search for narcotics. The controlling authority on whether a stop for a traffic violation is a "mere pretext" for a further search is the Supreme Court's decision in Whren v. United States 116 S.Ct. 1769, 1774 (1996). That case, however, is distinguishable from the one at bar because, contrary to the Trooper's assertions, the stop was not based on any legal justifiable basis.

In Whren the Supreme Court upheld the lawfulness of the seizure of narcotics observed when individuals subject to a narcotics investigation were stopped for a traffic violation because there was probable cause for the stop, the traffic violation. The "fact that the officer does not have the state of mind which is hypothecated by reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify the action." Id. In the case at bar Trooper Serpa's actions, however, were not objectively reasonable. Mr. SMITH respectfully submits that the stop and seizure was based on the unreasonable hunch of another officer, Lt. Allen of the Massachusetts State Police, who directed the stop. See excerpt of DEA 6 report of 1/29/98 surveillance, attached hereto as "Exhibit C." The stop was not based on any probable cause that SMITH had committed a traffic violation.

Equally troubling is that the Trooper in his affidavits, Exhibit A, represents to this Honorable Court that the basis for the stop was not only traffic violations, but that he was unaware of the true identity of Mr. SMITH prior to the stop, and that is why it was necessary to order him from the car. Defendant respectfully submits that the evidence at this hearing will demonstrate that Trooper Serpa was fully aware of the true identity of Mr. SMITH prior to the stop and that the representations that Mr. SMITH committed traffic violations, as well as the alleged questioning to determine identity are a contrivance to attempt to justify the stop. Such contrivance by the Trooper is a fraud on this Honorable court that cries out for suppression. Simply, if the Trooper is willing to misrepresent to the court the true basis for the stop, it is submitted that none of his expected testimony is to be believed.

The determination of voluntariness "turns on an assessment of the totality of the circumstances." United States v. Barnett, 989 F.2d 546, 554-55 (1st Cir. 1993). The court should take into account factors such as the consenting party's "age, education, experience, intelligence, and knowledge of the right to withhold consent." Id. at 555. Further considerations "include whether the consenting party was advised of his or her constitutional rights and whether permission to search was obtained by coercive means or under inherently coercive circumstances." Id.

The recent First Circuit case of United States v. Forbes, # 98-2302 (1^st Cir. 5/24/99) is instructive. In reversing the District Court finding of a consensual search, Judge Stahl, speaking for the Court, noted that an officer's testimony "is not entitled to increased deference merely because he is a police office." citing United States v. Victoria-Peguero, 920 F.2d 77, 84 (1^st Cir.1990) ("Where government agents are apt to be key government witnesses, the trial court ...should ordinarily make inquiry into whether prospective jurors are inclined to have greater faith in the agent's testimony merely by virtue of their official positions.") As in Forbes, Mr. SMITH was not unfamiliar with the criminal justice system. The alleged fact that he would "consent" to a search and voluntarily hand over drugs as well as make statements concerning the same is improbable to say the least.

Mr. JASON SMITH respectfully submits for each of the reasons set forth above, and the evidence presented at the hearing on this motion that this Honorable Court should grant his motion to suppress the items seized from his person and effects at the time of his arrest on January 29,1998 and all alleged statements obtained subsequent to his arrest.

Date: June 30, 1999 Respectfully submitted,

MICHAEL C. BOURBEAU, BBO # 545908

21 Union Street

Boston, MA 02108

(617) 722-9292

JASON SMITH

I, MICHAEL C. BOURBEAU, hereby certify that I have caused to be served a copy of the within motion upon all counsel of record, this date by hand, fax or mailing said motion by first class mail to each said person.

Dated: ___________, 1999 ____________________________

MICHAEL C. BOURBEAU