Saturday, August 04, 2012

Attorney: Airport seizure improper - Pot pilot suspect: You didn’t nab me fair and square . . .Fitchburg Municipal (KFIT), Massachusetts

This state police photo shows the airplane which was operated by Hoang Nguyen.

This state police pictures allegedly shows the three bags carrying 74 pounds of marijuana which were found inside the airplane.

WORCESTER -- The attorney for a California man charged with flying 74 pounds of marijuana into Fitchburg Municipal Airport last fall has filed a motion to suppress evidence seized, as well as statements his client made. 

Ashburnham-based lawyer Leonard Staples, who filed the motion June 25, says police lacked probable cause to issue a warrant to search the rented plane his client flew into Fitchburg, and that it was issued after his client landed and had been detained.

Hoang H. Nguyen, 31, of Garden Grove, Calif., formerly of Hillsborough, Ore., was charged with trafficking in 50 to 100 pounds of marijuana following his Sept. 27 arrest. He is currently awaiting trial in Worcester Superior Court.

Nguyen flew the small plane from Santa Monica, Calif. to Grundy, Ill., where he paid cash for fuel and slept in the plane overnight with two large suitcases, an airport manager there told Homeland Security.

According to Staples, Homeland Security had been tracking the plane since it flew over Arizona on its way to Illinois.

Staples said his client's behavior was "innocuous" and that these factors alone were not consistent with someone smuggling drugs.

"That's basically the only information they had at the point my client flew into Fitchburg," he said.

When Nguyen landed in Fitchburg, he was greeted  by state police, their K-9 unit and federal agents. While he was detained and questioned, Staples said, a K-9 sniff of the exterior of the plane indicated there may be drugs in the passenger area. That's when police obtained the search warrant, he said, and found the marijuana and $77,000 cash.

If the initial seizure was improper, Staples said, "then everything else gets thrown out."

According to Staples, case law in Massachusetts requires police affidavits to detail the track record of a K-9 used in such a search and seizure, to indicate the number of false positives versus correct identifications the dog has made. The affidavit in Nguyen's case, he said, does not include this information.

"He seems like a decent young man who probably got into somthing way over his head," Staples said of Nguyen. "He's a college graduate, with no prior record, a commercial pilot -- he's got a lot going for him -- and he will probably lose a lot of that no matter what happens as a result of the case."

According to Worcester District Attorney Joseph D. Early Jr. spokesman Timothy Connolly, prosecutors have not yet filed a written opposition to the motion, but they intend to do so.

Nguyen is due back at Worcester Superior Court for a hearing on the motion on Sept. 27.

Read more:

Pot pilot suspect: You didn’t nab me fair and square . . .

WORCESTER - A California man charged with piloting a plane carrying 74 pounds of marijuana from Santa Monica to Fitchburg last year is seeking suppression of evidence in the case against him. 

Hoang H. Nguyen, 31, of Garden Grove, Calif., was arrested Sept. 27 by state troopers and federal agents after the rented single-engine plane he was flying landed at the Fitchburg airport. Authorities said they obtained a search warrant and discovered three duffel bags filled with marijuana and $77,000 in cash on board the aircraft.

Mr. Nguyen, who is free after posting $5,000 cash bail, is awaiting trial in Worcester Superior Court on a charge of trafficking in 50 to 100 pounds of marijuana.

His lawyer, Leonard J. Staples, filed a motion June 25 seeking the suppression of the drug evidence and statements attributed to his client by investigators. A hearing on the motion is scheduled for Sept. 27.

Documents on file in Fitchburg District Court, where Mr. Nguyen was initially charged, indicate the licensed commercial pilot left Santa Monica, Calif., Sept. 26 and stopped at an airport in Grundy, Ill., for a rest. An airport manager there contacted officials at the Homeland Security Air Marine Operations Center after seeing Mr. Nguyen pay cash for fuel and then sleep in his plane with two large suitcases, according to court records.

A Homeland Security Interdiction Plane followed Mr. Nguyen’s aircraft to Fitchburg, the records show. According to Mr. Staples’ motion to suppress, Homeland Security had been tracking the plane since it flew over Arizona the previous day.

The motion alleges that there was no lawful basis for law enforcement authorities to detain and question Mr. Nguyen upon his arrival at the Fitchburg airport. It further alleges that a “K-9 sniff” of the airplane that resulted in a positive indication for marijuana occurred while Mr. Nguyen was being improperly detained.

Mr. Staples additionally argued in his motion that the affidavit submitted by police in support of their application for a search warrant lacked any details concerning the certification credentials of the police dog or its handler and contained no information about the dog’s track record of “successful hits versus false positives.”

“The defendant’s statements and the K-9 indication, when excised from the search warrant affidavit, reveal the lack of probable cause for the issuance of the warrant. All evidence obtained pursuant to the authority of the warrant must therefore be suppressed,” Mr. Staples wrote.

Prosecutors have yet to file their written opposition to the motion with the court.

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