Dosage samples comparing heroin, fentanyl and carfentanil

Samples of the dosage of pure drugs that could kill the average human — heroin, fentanyl and carfentanil, a synthetic opioid 100 times more powerful than fentanyl — are displayed at the New Hampshire State Police Forensic Laboratory in Concord.

CONCORD — A New Hampshire state trooper violated the Fourth Amendment by seizing 400 grams of fentanyl, cash and two phones from a Lawrence, Mass., man during a traffic stop on Interstate 95 in Hampton, a federal judge has ruled.

U.S. District Court Judge Landya McCafferty ruled in favor of John Hernandez’ lawyer who argued Trooper Michael Arteaga had made assumptions that amounted to an illegal search and seizure.

In a 36-page ruling, McCafferty said the traffic stop on March 26, 2018 was justified because Hernandez had been driving his rented car too close behind another vehicle for too long.

But Trooper Arteaga took that investigation to levels he should not have after initially determining that there were no driving violations or outstanding warrants against Hernandez, the judge ruled.

“The Trooper should have, upon his return to Hernandez’s car, returned the license, registration, and rental agreement, and either issued Hernandez a citation/warning for the traffic violation or sent him on his way,” McCafferty said.

Arteaga said that he found Hernandez to be nervous and anxious during questioning and had given information about his shopping plans in Kittery, Maine that day that weren’t truthful.

So the trooper approached the car a second time, asked Hernandez to exit it, patted him down and found he was carrying a large wad of cash.

After Hernandez agreed in writing to a search of his rented RAV4, the trooper found 400 grams of fentanyl stored in the center console.

Hernandez was indicted on one count of distributing fentanyl.

The trooper said he had been monitoring traffic on I-95 north of the Hampton tolls because it was a “known drug corridor.”

But after a hearing last May on the matter, Judge McCafferty ruled there was no justification for the second contact the trooper had with Hernandez.

“The extension of the stop to the point when the trooper asked Hernandez to exit the car violated the Fourth Amendment and was unlawful. If the opposite were true, the vast majority of travelers on our nation’s highways would be subject to extended detention during a routine traffic stop,” McCafferty wrote in her decision.

“The trooper should have returned to the car merely to give the driver his papers and communicate the result of the stop (i.e., a violation, warning, or nothing). By prolonging the stop beyond that point and asking the driver to exit his car to further investigate, the trooper violated the Fourth Amendment.”

The court’s ruling issued last Tuesday does not strike down the indictment but excludes all the seized evidence from being used against him.

Charles Keefe, a lawyer from Nashua, had made the suppressed evidence motion on behalf of Hernandez.

“This case demonstrates why this court should curtail the temptation by law enforcement to use a traffic stop to investigate other supposed criminal activity,” Keefe wrote in his motion. “As the trooper violated the defendant’s constitutional rights by extending the scope of the seizure without any reasonable suspicion, any evidence derived after this constitutional violation should be suppressed.”

Friday, December 06, 2019
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