United States v. Jon Hagstrom

2014 DNH 018

• Court: District Court, D. New Hampshire
• Decided: January 29, 2014
• Docket: 12-CR-045-SM
• Status: Published

Opinion

United States v. Jon Hagstrom 12-CR-045-SM 1/29/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Case No. 12-cr-45-l-SM Opinion No. 2014 DNH 018 Jon Hagstrom, Defendant

O R D E R

Defendant has moved to suppress evidence obtained during a

consensual search of his baggage and briefcase, as well as

statements he voluntarily made, after his chartered private jet

aircraft was stopped and he was detained by police officers at

Hanscom Field in Massachusetts. He asserts that the

investigative detention (a "Terry"1 stop) was not based upon

reasonable suspicion supported by articulable facts, and so was

constitutionally infirm. Defendant also moves to suppress

evidence later obtained during a search of his home pursuant to a

warrant issued, in large part, on the basis of incriminating

evidence and statements obtained following the challenged Terry

stop. All of the inculpatory evidence against him, defendant

contends, is fruit of the unlawful initial stop and so cannot be

admitted in evidence against him. An evidentiary hearing on the

1 Terry v. Ohio, 392 U.S. 1 (1968) motions to suppress was held at which the government presented

witnesses.

For the reasons discussed, defendant's motions to suppress

are denied.

Facts

David Faria, an experienced narcotics detective with the Los

Angeles, California, Sheriff's Department, testified that Barry

Hall, a friend and colleague who worked in the Homicide Bureau,

received information from Jason Wright (a friend of Hall's and an

engineer) regarding apparent illegal drug activity. Because the

information was related to drug activity. Hall referred Wright to

Detective Faria, providing Faria with Wright's contact

information.

Detective Faria spoke to Wright in a telephone conversation

that took place on July 31, 2008. Wright told Detective Faria

that a female co-worker had confided in him that she knew about

drug activity that her boyfriend was involved in, was

uncomfortable about it, and was afraid to contact law

enforcement. Wright shared with Faria the details of what his

co-worker told him. She said her boyfriend traveled on a private

charter jet flight to the east coast in February with a male

2 named Jon Hagstrom. The boyfriend was nervous about going with

Hagstrom because Hagstrom was involved in distributing narcotics

across the United States. The boyfriend told her that if he did

not return, or disappeared, it was because he was assisting

Hagstrom in transporting narcotics to the Boston, Massachusetts,

area. The boyfriend said that Hagstrom chartered private jets

from Clay Lacy Aviation, and flew from the Van Nuys Airport in

California. The trips were said to commonly occur once a month.

Wright identified himself, the female co-worker, and the

boyfriend. He also provided an address and phone number for

"John Hagstrom," and related that Hagstrom usually had

approximately $2-4 million in a safe at his residence.

Detective Faria conducted a background check on Wright and

learned that he had no criminal record. He also confirmed the

address given to him as Jon Hagstrom's. He called the phone

number provided by Wright and confirmed that a male named Jon

answered, and that the voicemail feature was also answered by a

male named Jon. In addition, Faria examined a financial report

related to Hagstrom, developed by the Sheriff Department's Asset

Forfeiture Unit. The report noted that cash deposits to a soccer

supply business associated with Hagstrom looked like "structured

deposits," and "weren't typical deposits that would be for a

3 business of that type." Faria also determined that the soccer

business, "Soccer Locker," appeared to be closed.

Detective Faria also visited Clay Lacy Aviation, in Van

Nuys, where company managers told him that Jon Hagstrom had

chartered private jets approximately three times for round trips

to the east coast. The cost of each charter was between $40,000

and $50, 000 .

The president of Clay Lacy Aviation told Faria that a person

could charter a jet from the company as long as that person's

name was not on the Transportation Safety Administration's "no-

fly list," and as long as payment for the charter service cleared

before those services were provided. He also told Faria that

Hagstrom had expressed an interest in buying a private jet valued

at approximately $5 million.

On September 10, 2008, around noon. Detective Faria received

a phone call from someone at Clay Lacy Aviation, who reported

that Hagstrom had again leased a Gulfstream jet and was en route

to Hanscom Field (just west of Boston), along with three other

passengers, having departed some four hours earlier. Faria

obtained the plane's registration number, and called an

acguaintance, a Massachusetts State Police Sergeant, who referred

4 the matter to Lieutenant Thomas Coffey, of the Massachusetts

State Police. L t . Coffey called Detective Faria. Faria briefed

Coffey on what he had learned, told him that he believed the

Gulfstream Hagstrom chartered was being used to transport drugs,

and said the aircraft was about to land at Hanscom Field. Faria

asked if Massachusetts officers could "either . . . conduct a

surveillance or, if they can stop and contact him, find out if

they were involved in criminal activity." Hearing Tr. 189-190

(document no. 92).

Based on his conversation with Detective Faria, L t . Coffey

arranged for a state police officer stationed at Hanscom Field

(Trooper Fimiani) to meet the aircraft and ask the pilots and

passengers if they would be willing to wait to talk to some

detectives coming up from Boston.

According to the pilots, the police officer (Fimiani) who

approached the plane after it landed in Massachusetts, told them

that the passengers and pilots "would all have to wait inside the

airplane for the FAA." The pilots so informed the passengers.

While Trooper Fimiani had a different recollection, for purposes

of resolving these issues I credit the pilots' perception.

Accordingly, I find that Hagstrom was temporarily detained

5 pending investigation when the aircraft was approached by Trooper

Fimiani and the occupants were told to remain on the plane.

After speaking with Detective Faria, L t . Coffey drove

immediately from Boston to Hanscom Field, in a cruiser with

lights and siren in use. He arrived about 30 to 35 minutes after

the plane was stopped.

When L t . Coffey arrived and boarded the plane he made it

clear to the passengers that they were not under arrest and were

free to leave. He engaged in no show of force, and he was calm,

civil, professional, and conversational. He neither directly nor

implicitly threatened Hagstrom. Hagstrom willingly engaged in

conversation with L t . Coffey and voluntarily agreed to answer his

guestions — and, as he did, Hagstrom provided L t . Coffey with

grounds to suspect that he was attempting to hide something.

Hagstrom freely answered guestions put to him about the

nature of the trip, and whether any illegal activity was

involved. I accept L t . Coffey's uncontradicted testimony that

Hagstrom initially falsely denied that he chartered the aircraft

(apparently seeking to distance himself from the charter) and

later conceded that he had; that Hagstrom's explanation for the

transcontinental trip (to see a "historic" baseball game between

6 the Red Sox and Rays) was not credible, at least not from a

sports perspective; that his answers regarding business meetings

in Boston were vague; and that his claim that his parents

supported him financially seemed inconsistent with chartering a

Gulfstream jet to fly across the country to watch a regular

season Red Sox game.

I also credit L t . Coffey's uncontradicted testimony that

Hagstrom voluntarily consented to a search of his luggage,

briefcase, and the aircraft — searches that disclosed

incriminating evidence which supported the conclusion that

Hagstrom was engaged in a large-scale drug-trafficking

conspiracy, and which led to Hagstrom's voluntary admission to

being a courier for a drug distribution operation in which he

collected and transported drug proceeds. Finally, I credit L t .

Coffey's uncontradicted testimony that Hagstrom agreed to

cooperate with law enforcement and arranged to meet later in the

day with L t . Coffey.

The Motions to Suppress

Defendant's motions to suppress evidence can succeed only if

law enforcement officers detained the private jet without

sufficient reason to suspect that criminal activity was afoot.

The government conceded, after hearing, that a Terry stop

7 occurred. The question remaining, then, is whether that

temporary detention was lawful under the circumstances. I find

that it was.

Discussion

The Hanscom Field Stop

A police officer "can stop and briefly detain a person for

investigative purposes even if the officer lacks probable cause

if the officer has reasonable suspicion supported by articulable

facts that 'criminal activity may be afoot.'" United States v.

Ramos, 629 F.3d 60, 65 (1st Cir. 2010) (quoting Terry, 392 U.S.

at 30). The initial detention must be justified by reasonable

suspicion and whatever actions are taken by the police during the

detention must be reasonably related to the reason that initially

justified the stop. United States v. Mohamed, 630 F.3d 1, 5 (1st

Cir. 2010).

Reasonable suspicion must be supported by specific

articulable facts - a mere hunch is not sufficient. And,

reviewing courts must determine whether reasonable suspicion

warranting an investigative stop existed by applying "a

practical, commonsense judgment based on the idiosyncracies of

the case at hand and an assessment whether the officer's actions

were fairly responsive to the emerging tableau." United States v. Hornbecker, 316 F.3d 40, 47 (1st Cir. 2003) (citation and

internal punctuation omitted).

In addition, "reasonable suspicion demands only an

objectively reasonable appraisal of the facts - not a

meticulously accurate appraisal." United States v. Coplin, 463

F.3d 96, 101 (1st Cir. 2006). The purpose of a Terry stop, after

all, is to allow police to briefly detain someone in order to

clarify ambiguous situations - to confirm or dispel reasonable

suspicions that criminal activity is ongoing or has recently

occurred. See United States v. Wright, 582 F.3d 199, 213 (1st

Cir. 2009). Finally, reviewing courts endeavor to give

"deference . . . to the experienced perceptions of the officers

. . . because factual circumstances that seem innocuous to a

layman might well appear suspicious (and reasonably so) to the

seasoned eye of law enforcement professionals." Hornbecker, 316

F .3d at 47.

Here, Faria, an experienced Los Angeles, California,

narcotics detective, was told by a seemingly reputable citizen

(no criminal record) who identified himself, and who was well-

known to one of Faria's police colleagues, that he had

information regarding illegal drug distribution activity. The

informant told a plausible story - that a female co-worker confided in the informant that her boyfriend was nervous and told

her that if he ever failed to return from a trip or disappeared

it would be because of drug-related activity he was engaged in

with Jon Hagstrom. She said her boyfriend told her that he had

been going on trips with Jon Hagstrom from California to the east

coast, on private jets, and that he (Hagstrom) was distributing

drugs. The informant provided Hagstrom's address and telephone

number, and related that Hagstrom usually had approximately 2 to

4 million dollars in a safe at his residence. The informant also

told Detective Faria that Hagstrom chartered private aircraft

from Clay Lacy Aviation in Van Nuys, California, to fly to the

east coast. The informant identified the female co-worker and

her boyfriend, and explained that the co-worker was concerned

about her boyfriend but was hesitant to go to the police herself.

Detective Faria conducted a brief investigation, confirming

Hagstrom's address and that the phone number attributed to him

was answered by a male named Jon, as was an automated voicemail

message. Faria also learned that Hagstrom seemed to be

associated with a closed retail soccer business, the "Soccer

Locker," and that the business account seemed to have had

atypical deposits for such a business, suggesting possible

illegal structuring. That is, Faria could reasonably infer from

what he learned that Hagstrom was not wealthy, that something was

10 amiss with respect to the store's deposits, and that he had no

apparent means sufficient to charter private jet aircraft.

Faria also confirmed that Hagstrom chartered private jets

from Clay Lacy Aviation in Van Nuys; that the aircraft were used

to take trips from California to the east coast; that the trips

were expensive ($40, 000-$50, 000. ) and seemingly well beyond his

financial means;2 and that there was no apparent legitimate or

business reason for those expensive trips.

When Detective Faria was told on September 10, 2008, that

Hagstrom had again chartered a jet to fly to the east coast, and

was en route, he could have reasonably thought that trip fit the

2 In its Response to Motion for Evidentiary Hearing on Motion to Suppress (document no. 32), the government states, without citation to any record evidence, that the president of Clay Lacy Aviation told Detective Faria that "the defendant paid approximately $40,000.00 - $50,000.00 cash for each flight." Id. at 3 (emphasis supplied). The government repeats that unsupported claim again (twice) in its Objection to Motion to Suppress Evidence and Statements Obtained During Seizure at Hanscom Civil Air Terminal (document no. 34), at 3 and 16. In its post-hearing memorandum (document no. 94), however, that factual assertion is notably absent, and the court has found no record support for the claim that Hagstrom paid for the charter services in cash. Accordingly, the court has not considered it. Detective Faria's affidavit in support of the subseguent search warrant (document no. 28-2) does, however, state that the payments Hagstrom made for each flight had to "clear" before Clay Lacy Aviation would provide charter services. So, whether Hagstrom paid in cash or in some other way, Faria could reasonably conclude that Hagstrom did, in fact, pay substantial sums for charter services.

11 story told by the informant, and was suspicious - likely related

to illegal drug activity, particularly given Hagstrom's apparent

inability to pay for such charters, no apparent alternative

legitimate business explanation for such a trip, and that the

circumstances fit, and were consistent with, the informant's tip

regarding the illicit purposes of Hagstrom's flights to the east

coast.

While Detective Faria perhaps could have interviewed the

female co-worker and the source of the tip, her boyfriend,3 to

get a clearer explanation of all pertinent facts regarding

Hagstrom's alleged involvement in drug activity, still,

information provided by third-parties can create reasonable

suspicion if the information contains sufficient indicia of

reliability. United States v. Jones, 700 F.3d 615, 621-22 (1st

Cir. 2012). Here there was sufficient indicia of reliability -

the story was plausible; the source related information based on

personal experience and knowledge; that information seemed self-

inculpatory; the girlfriend's interest in and concern for the

safety of her boyfriend tended to lend credence to her story;

relevant operational facts were largely confirmed with respect to

3 To the extent the boyfriend, the source of the information, was actually involved in the criminal activity and spoke against his own interests, contact by Detective Faria might, of course, have prematurely alerted Hagstrom and others that the enterprise had been compromised.

12 Hagstrom's chartering jets to fly to the east coast; Detective

Faria learned that Hagstrom was unlikely to be able to afford

such charters using his own financial resources; and there

appeared to be no alternative legitimate reason for, or means of,

chartering such expensive aircraft for such long-distance but

short-duration trips.

Information provided by a member of the public need not

establish a solid case or even probable cause to establish

reasonable suspicion. "It suffices if a prudent law enforcement

officer would reasonably conclude that the likelihood existed

that criminal activities were afoot, and that a particular

suspect was probably engaged in them." United States v. Taylor,

162 F.3d 12, 20 (1st Cir. 1998) (citation and internal

punctuation omitted). Corroboration reguired for a tip to

establish reasonable suspicion is "considerably less" than is

reguired for the same tip to establish probable cause. Alabama

v. White, 496 U.S. 325, 330 (1990).

Given the information available to Detective Faria at the

time, I find that the Terry stop initiated by L t . Coffey was

based on reasonable suspicion, supported by articulable facts,

that Hagstrom was engaged in criminal activity related to a drug-

trafficking conspiracy.

13 I also find that L t . Coffey's arrival within 35 minutes

after the plane was stopped did not constitute unreasonable

delay, was prompt under the circumstances, and did not convert

the temporary detention into a de facto arrest. See United

States v. Sharpe, 470 U.S. 675 (1985). L t . Coffey proceeded

immediately to Hanscom Field from Boston after speaking to

Detective Faria. He traveled in a cruiser, with lights and siren

in use to clear traffic. Given the important law enforcement

purpose and particular circumstances — temporary detention of a

landed airplane at a nearby airport to resolve reasonable

suspicions related to drug distribution activity — the police

response was both appropriate and timely. The imposition upon

defendant was comparatively minor: only 30 minutes or so of

delay, during which time he was free to move about the

comfortable cabin of the jet.

Upon boarding the plane, L t . Coffey made it clear that the

passengers, including Hagstrom, were not under arrest, and were

free to leave. They were not constrained, and no coercion was

used.

Accordingly, the motion to suppress evidence obtained during

the subseguent consensual search of Hagstrom's bags and the

aircraft, and the incriminating statements voluntarily made by

14 Hagstrom, on grounds that all such evidence constitutes fruit of

an initial unlawful Terry stop, is denied.

The Search of Defendant's Residence

Defendant also moves to suppress evidence subseguently

obtained from his residence in California upon execution of a

search warrant — a warrant issued in substantial part on the

basis of Hagstrom's own admissions and the evidence seized

following the aircraft stop at Hanscom Field. The motion is

without merit since the defendant's prior admission that he was

acting as a money courier for a marijuana distribution ring is

admissible, and that admission provided rather strong reason to

believe that evidence of his unlawful activity would likely be

found in his home (records, proceeds, etc.). The warrant may

have been based upon some incorrect information as well (related

to Hagstrom's allegedly unusual electric power usage), but there

was little evidence suggesting police officers knew of the

referenced error when the information was presented to the

issuing magistrate. But, more to the point, even if that

information is ignored, there remained sufficient reliable

information to overwhelmingly establish probable cause to search

Hagstrom's residence, an admitted drug distribution conspirator.

See United States v. Jenkins, 680 F.3d 101, 107 (1st Cir. 2012)

("[E]ven if the warrant were deficient (contrary to our

15 understanding), it could hardly be called so overbroad (or

lacking in probable cause) 'as to render official belief in its

[validity] entirely unreasonable.''") (quoting United States v.

Leon, 468 U.S. 897, 923 (1984)). Here, too, Leon's good faith

exception to the exclusionary rule would support admission of

evidence found in Hagstrom's home, even if the warrant were found

deficient as suggested by defendant. To be fair, defendant does

not seriously contend otherwise, and seems to press the motion

only on the assumption that the Hanscom Field evidence and

admissions were unlawfully obtained.

In any event, for the reasons given, the motion to suppress

evidence obtained pursuant to the search of defendant's residence

is also denied.

Conclusion

The motions to suppress evidence (document nos. 27 and 28)

SO ORDERED.

Steven J./McAuliffe United States District Judge

January 29, 2014

16 cc: Debra M. Walsh, AUSA Robert M. Kinsella, AUSA Brett A. Greenfield, Esq. Brian M. Quirk, Esq. David E. Kenner, Esq. Michael D. Ramsdell, Esq. U.S. Probation U.S. Marshal